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 This command is backed by sanctions. For the purpose of this theory,
we must be able to identify ‘sovereign’.

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

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

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

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 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
People’s 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.

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

4 [1985] LRC (Const) 127; (1985) 32 WIR 241, PC.

5 [1992] 1 AC 545

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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 Hart’s 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.

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 public’s morals when the defendant published a 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

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

7 [1991]1 ALL ER 439, CA.

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obtained for the common law offence of outraging public decency when the defendant artist
exhibited earrings made from freeze-dried 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.

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.

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

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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:

"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
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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,
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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

Antoine, B, R. (2008). Commonwealth Caribbean Law and Legal Systems (2 ed.). New York, USA:

Routledge-Cavendish Publishing.