What Makes Law Valid?

What is Law?

Before expounding on the concept of law validity, the author believes that it is of utmost

importance that the term “law” be explained in meaning. According to the author, law can be

defined as a system or a body of rules made by the government that function together to

control, maintain and protect a society in a given geographical location. This definition can

be compared to that of Toppr.com which states, “law is a rule of conduct developed by the

government or society over a certain territory.” Although there are no right or wrong

definitions of law, there are key terms which are associated with the term. Such expressions

include: rules, systems, control, society and “government”. The quoted term, government, has

been and still is challenged as a result of the origin of law. In the subsequent paragraph, the

writer will discuss why the expression “government” is a contradicting element in the

definition and validity of the law.

Origin of Law

Systems or bodies of rules have been implemented long ago to subdue and manipulate a

people, or at the time property or chattel. Slavery was an incentive for the foreign powers to

implement such inhumane regulations to ensure the plantocracy’s dominance was

acknowledged and forcefully accepted. With regard to the first paragraph, laws were made in

the name of the sovereign or by the sovereign himself. The sovereign was the “mouthpiece of

God” so no one dared to question the validity or morality of his laws. The Commonwealth

Caribbean, countries in the region that share a history of colonization by the British, abided

by laws made or declared in the name of the sovereign or crown thus, it is no surprise that

modern Caribbean law is “imperialistic, foreign, elitist and oppressive in outlook”,

(Antoine,2008). According to Rose-Marie Belle Antoine, “Law was an instrument of social

control and public order in plantation society.”

The author agrees with Antoine as neither the crown nor the British Empire viewed the

African slaves as human beings. These laws were only made to prevent rebellions and instill

fear in the enslaved. In accordance with Doris V. Hamilton-Willie, slave laws in the British

Caribbean sought to prevent the manumission of slaves and made “no provision for

supervision and protection of slaves was not provided for until the Amelioration measures of

1823”. Although the sovereign made all the laws, he did not draw up a unified set of laws due

to the British government having a pro-planter approach. The British government believed

that the slaves were property and the British government had no desire to “dictate how

planters handle their property” (Willie, 2003). Several decades later, there are laws in place

and laws are continuously being implemented and so one question persists: Who makes laws?

This question will be answered in a subsequent paragraph and will be related to the topic of

research: What Makes Law Valid?

Foundation of Law

In accordance with the Caribbean.unwomen.org, it is worth noting that all English-speaking

Caribbean territories have a written constitution. The questions that plague all minds are

centred around what the constitution is and its significance. To clarify, a constitution is the

“rule book for the state”, (ucl.ac.uk), which provides the governmental framework, such as

the legislative, executive and judicial structure, (boisestate.pressbooks.pub). It is thus

understood why written constitutions are considered the basis or foundation of the law for

several countries, excluding, Israel, New Zealand, Saudi Arabia, United Kingdom and

Canada, according to the worldatlas.com. The aforementioned countries have “uncodified or

unwritten constitutions” which simply means that due to the lack of a single document or

written constitution, laws are contained in a number of texts. Examples of such texts include:

commentaries by judiciary and legal experts. This takes the author back to the topic of

research: What Makes Law Valid? Does the constitution play a role in the validity of the law?

The answer to that question is yes.

As a result of the constitution being the basis of the law, any law that contradicts the

principles of the constitution may not be passed as, according to Clyburn.house.gov, the

constitution is the “supreme law of the land.” Among the listed countries with uncodified

constitutions, the United Kingdom was one of the five countries. This particular nation is

significant as it was the “colonizer” or “mother country”, and dare the writer say the “Mother

of law”. To answer the question all might be wondering: Why doesn’t the United Kingdom

have a codified constitution? The United Kingdom does not have codified constitution as

written constitutions are created “following a major historic turning point”, (ucl.ac.uk). Take

for instance, a revolution or the grant of independence, none of which have occurred to the

United Kingdom. The constitution of the Commonwealth Caribbean is linked to the

expression “English Common Law”. This expression can be defined as a “body of law that is

created by the written decisions of judges instead of by a strict legal code”, (study.com). Not

only did Great Britain expand her power overseas to several territories, but she also expanded

the Common Law of England, which later became the common law of the particular colony,

(D.P Bernard, 2013). These judicial adaptations of the English Common Law have, therefore,

contributed to the foundation of modern law in the Commonwealth Caribbean, which in turn

have been notably appreciated to contribute to the validity of the law.

Social Acceptance of Law

Another major factor which contributes to the validity of law is the element of recognition.

Laws can be made and enacted but laws are not always accepted. Take for instance, the

Dangerous Drug Act of Jamaica. Prior to 2015, this Act was passed with the aim of

prohibiting illegal and harmful drugs in Jamaica. However, this Act was not accepted by the

Rastafarians in Jamaica who utilize ganja for medical, therapeutic and scientific purposes. A

matter involving a Rastafarian in which he was arrested for possessing and dealing ganja

under the aforementioned Act. The appellant argued that his constitutional right to enjoy “his

freedom of conscience in the practice of his religion as a Rastafarian”, (Antoine, 2008), due

to the fact that ganja played a significant role in the sacrament and essential practices of the

Rastafarian faith (jis.gov.jm). In 2015, the Dangerous Drug Act of Jamaica was amended and

allowed the possession and smoking of ganja by persons of the Rastafarian faith, under

certain terms and conditions. Seeing how this Act was amended to fit the conditions of the

Jamaican society, it raises a thought-provoking question: Who makes laws today? The

sovereign no longer makes direct laws for the Commonwealth Caribbean as a body is now

tasked with the responsibility of law making. This body is known as ‘parliament’.

Commonwealth Parliament comprises of the King, the Senate and the House of

Representatives. Before a law is enacted, it starts off as a bill. This bill is first read in the

House of Representatives. Before being passed on to the Senate, the Bill is debated on and

then a vote is taken, after which, it is closely examined by the House of Representatives. The

same process occurs at the Senate and once an agreement is reached by the Upper and Lower

Houses, the Royal Assent is needed to make this bill a law, (jim.gov.jm). In earlier

paragraphs, it was seen that the sovereign or crown was the one who made laws but now
parliament has the right to do so. Are these laws considered valid as laws can only be valid if

declared by the “mouthpiece of God”.

The validity of law in the past, in comparison to the validity of the law now, conflicts with

this question: Who has the right to make laws? In the colonial period, the sovereign, which

was the king or queen, was the only being allowed to make laws that were deemed valid, but

today, the individual is considered the sovereign. The author says this as the individual has

the right to “self-determination”, therefore, a social acceptance is what really makes law

valid. As the Commonwealth Caribbean continues to advance into modern systems of rule,

one’s outlook on the concept of law validity also needs to advance. It is no longer fully up to

the crown or sovereign to make laws for all the Commonwealth territories, but rather, it is

one’s duty to acknowledge, analyze and challenge, if need be, the laws made for one’s

country by parliament, as laws should be made to fit and better the conditions of that

particular nation or society.

Conclusion

To summarize this essay, the author elucidated not only on the concept of law validity but

also the meaning of law, the origin of law, the foundation of law and the social acceptance of

the law. In accordance with Rose-Marie Belle Antoine, “one may also inquire into the legal

source of law, that is, where it gets its legitimacy or legal validity.” Antoine also went on to

say that the code would be the principal source of validity and the judicial precedents would

be the main legal source within common law systems. Thus, to answer the topic of question:

What Makes Law Valid? The author concludes by saying that the validity of law can be

determined mainly by the source and recognition of said laws.