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Caribbean Legal Systems

Natural and Positive Law


Nature, origin and function

The philosophical discussion of the role and function of the law in society,
many distinguished legal philosophers have engaged in this question.
However, one stock answer cannot be identified. It depends partly on the
view taken of the nature of law.
Legal theorist can thus be divided into two schools of thought, those
who adhere to positivism and others who subscribe to the natural law theory.
The positivists, like Hart and Austin, merely attempts to define what law is,
not what it should be, or its content.
The natural law theorists on the other hand, believe that rules or
principles can only be legitimately be called law if they conform to an
acceptable code of moral behaviour. The proponents of the natural law
school of thought include St. Thomas Aquinas1 and Fuller.2

Application of Positivism
Law might simply be considered as a set of rules within the society. However,
this description does not tell us as much about the authoritative and coercive
nature of a legal rule. John Austin responds by saying that the law is different
from other rules because it is a command from the legitimate sovereign. 3
1

Aquinas, T (St), Summa Theologica, 1942, London: Burns, Oates and Washbourne.

Fuller, R, The Morality of the Law, 1969, London: Yale UP.

Austin, J, The Providence of Jurisprudence Determined, 1954, London: Weidenfield and


Nicolson

This command is backed by sanctions. For the purpose of this theory, we


must be able to identify sovereign.
This thesis was tested in the commonwealth Caribbean in the case of
Mitchell v DPP.4 Here, the courts had to decide whether a Supreme Court
established in Grenada by the Peoples Revolutionary Government was
legally constituted. This involved a larger question, specifically, whether this
revolutionary government, was the legitimate sovereign in the Austinian
sense, such as to confer legal status on the law and on the courts. This case
was decided in the affirmative on the grounds of necessity.
A similar question was could have been posed in the case of Phillips
and Others v DPP,5 when, after another coup, this time in Trinidad and
Tobago, rebels sized power. In this case, the court was concerned with the
validity of a pardon given to the rebels.

Limits of the command theory


As Hart points out, the command theory, while authoritative, makes the
erroneous assumption that all legal rules makes commands or imposes
sanctions. There are many laws which merely confer rights and are not
backed by sanctions.
Hart identifies two main sets of rules, primary and secondary rules.
Primary rules are those that society needs in order to survive. They forbid
the conducts most destructive to society, such as murder. Even simple
society contains these rules. Secondary rules are those which confer power
rather than duties. They are divided into three types: rules of adjudication,
rules of change and rules of recognition.

[1985] LRC (Const) 127; (1985) 32 WIR 241, PC.

[1992] 1 AC 545

The first rules of adjudication are designed to allow the society to settle
disputes such as legal offences and the sentences. Rules of change are those
which promote other new rules. Rules of recognition are those which
demonstrate the acceptance of the law by the society. They thus spell out
which rules in the society have legal force. For example, Hart says, the UK
has a single rule of recognition: what the queen enacts is law. In like vein,
our rule of recognition in the commonwealth Caribbean is the constitution.
Dworkin6 rejects Harts theory, on rules on the basis that laws contains
not just rules, but a set of principles upon which these rules are based. These
principles are the guidelines which inform the law but do not propose
a solution. One such principle is that no one should benefit from their own
wrong. These principles have a certain dimension of weight or importance
that rules lack. This enables judges to weight conflicting principles.

The naturalists and the morality of the law


We need to consider carefully the question of the appropriate functions of
the law in society according to the naturalist school of thought. Should law as
the naturalist believe, seek to reflect morality.
Those that argue in the affirmative believe that there should be some
kind of higher law, to which we must turn for basic moral code. There are
divergent views of the moral code however. Some, like Aquinas, argue that it
comes from God. Other see it merely as a question of basic ethics of the
society based on reason. The moralists believe that the law should not only
be moral in itself but should contain rules which prohibit, immoral
behaviour. The law cannot divorce itself from moral values.

Dworkin, K, Taking rights seriously, 1977, London: Duckworth.

The belief that the law should reflect morality has spurned some
interesting cases. In Shaw v DPP,7 for example, the House of Lords upheld a
conviction of the offences of a conspiracy to corrupt publics morals when the
defendant published

pornographic

book.

The court

found

that a

fundamental purpose of the law was to conserve not only the safety and
order but also the moral welfare of the state. 8 Similarly, in R v Gibson, a
conviction was obtained for the common law offence of outraging public
decency when the defendant artist exhibited earrings made from freezedried foetuses.
These decisions have engendered much controversy and have been
criticized by those who believe that morality is a private concern and not the
business of the law. John Stuart Mill, for example argues that the law should
not impose its concept of morality on individuals. Individuals should be free
to choose their own conduct, as long as they do not harm others.
Less controversial function of the law include public order, social
control, social cohesion, to promote change in society, to define rights and
duties and to balance conflicting interests in the particular society.

When should we obey the Law?


Even if we can identify if we can identify the law, still the question
remains when should we obey the law? Is it as Austin thought, because of
the sanctions behind it, or as Hart believed, because we accept it? Perhaps it
is obeyed because it is the most convenient and fair way of organizing any
society? We may also obey the law because we believe it is the right or
morally correct.

[1991]1 ALL ER 439, CA.

See Knuller v DPP [1973] AC 435, which was a conviction for publishing advertisement for
contacting others for homosexuals purposes.

Is there an obligation to obey rules emanating from the state which are
immoral? There are several examples of these: the Nazi laws of Germany,
the apartheid laws of South Africa; these were all legitimized by the relevant
parliaments. But did these laws have moral authority? The people who
obeyed these laws may have simply believed they were just obeying the law.
Yet they can be brought before international courts, for example, on claims
that they have committed crimes against humanity, or genocide, or as in
South Africa, new national courts, for legal violation which are based on a
higher moral order. Rules must conform to acceptable moral standards
before we can consider them to be law.

See the following cases:


R v Knuller [1972] 3 WLR 143, the appellants were directors of a company
that published fortnightly magazine. On an inside page under a column
headed males, advertisements were inserted inviting readers to meet the
advertisers for the purpose of homosexual practices.
The appellants were convicted on counts of conspiracy to corrupt public
morals and conspiracy to outrage public decency.

R v Brown [1993] 2 All ER 75 House of Lords


The five appellants were convicted on various counts of ABH and wounding a
under the Offences Against the Person Act 1861. The injuries were inflicted
during consensual homosexual sadomasochist activities. The trial judge ruled
that the consent of the victim conferred no defence and the appellants thus
pleaded guilty and appealed. The Court of Appeal upheld the convictions and
certified the following point of law of general public importance:
5

"Where A wounds or assaults B occasioning him actual bodily harm in the


course of a sado-masochistic encounter, does the prosecution have to prove
lack of consent on the part of B before they can establish A's guilt under
section 20 and section 47 of the 1861, Offences Against the Person Act?"
Held: 3:2
The defence of consent cannot be relied on in offences under s.47 and s.20
OAPA 1861 where the injuries resulted from sadomasochist activities.
Lord Templeman: "Society is entitled and bound to protect itself against a
cult of violence. Pleasure derived from the infliction of pain is an evil thing.
Cruelty is uncivilised. I would answer the certified question in the negative
and dismiss the appeals of the appellants against conviction."

Lord Lowry: "What the appellants are obliged to propose is that the
deliberate and painful infliction of physical injury should be exempted from
the operation of statutory provisions the object of which is to prevent or
punish that very thing, the reason for the proposed exemption being that
both those who will inflict and those who will suffer the injury wish to satisfy
a perverted and depraved sexual desire. Sadomasochistic homosexual
activity cannot be regarded as conducive to the enhancement or enjoyment
of family life or conducive to the welfare of society. A relaxation of the
prohibitions in sections 20 and 47 can only encourage the practice of
homosexual sadomasochism and the physical cruelty that it must involve
(which can scarcely be regarded as a "manly diversion") by withdrawing the
legal penalty and giving the activity a judicial imprimatur."

Lord Mustill dissenting:

"The issue before the House is not whether the appellants' conduct is morally
right, but whether it is properly charged under the Act of 1861. When
proposing that the conduct is not rightly so charged I do not invite your
Lordships' House to endorse it as morally acceptable. Nor do I pronounce in
favour of a libertarian doctrine specifically related to sexual matters. Nor in
the least do I suggest that ethical pronouncements are meaningless, that
there is no difference between right and wrong, that sadism is praiseworthy,
or that new opinions on sexual morality are necessarily superior to the old, or
anything else of the same kind. What I do say is that these are questions of
private morality; that the standards by which they fall to be judged are not
those of the criminal law; and that if these standards are to be upheld the
individual must enforce them upon himself according to his own moral
standards, or have them enforced against him by moral pressures exerted by
whatever religious or other community to whose ethical ideals he responds.
The point from which I invite your Lordships to depart is simply this, that the
state should interfere with the rights of an individual to live his or her life as
he or she may choose no more than is necessary to ensure a proper balance
between the special interests of the individual and the general interests of
the individuals who together comprise the populace at large. Thus, whilst
acknowledging that very many people, if asked whether the appellants'
conduct was wrong, would reply "Yes, repulsively wrong", I would at the same
time assert that this does not in itself mean that the prosecution of the
appellants under sections 20 and 47 of the Offences against the Person Act
1861 is well founded."

Reference
7

Antoine, B, R. (2008). Commonwealth Caribbean Law and Legal Systems (2


ed.). New York, USA:
Routledge-Cavendish Publishing.