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Orrett-Daniel Rodgers 2017

CAPE LAW UNIT 1: PUBLIC LAW

MODULE 1: CARIBBEAN LEGAL SYSTEMS
Topic 1: Concepts of Law and the Influence of Morality and Religion on Law

WHAT IS LAW
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These are the enforceable body of rules that govern any society. There are other popular definitions of law
including:

▪ The legislative pronouncement of rules to guide behaviour;

▪ the total of those rules of conduct put in force by legislative authority or court decisions, or established
by local customs; and
▪ an institution which is essential to the social nature of man and without which he would be a very
different creature;

The definition suggests that some rules are enforceable and some rules are not. Rules are normative i.e they set
the standard for how things are to be rather than how they are. A rule can be defined as “a general norm
mandating or guiding conduct or actions in a given type of situation.

CONCEPTS OF LAW

Concepts of law are essentially the theories of law. These different legal theories are propounded by various
legal philosophers. These different theories govern different peoples and societies alike. Concepts of law also
extend to different cultural, racial and religious situations. For the purposes of this unit there are two major
theories of law: Natural Law and Positive Law.

Natural Law- (laws can only be so called if they conform to an acceptable code of moral behaviour)
Natural law is a theory (understanding) of law which proceeds from the assumption that law is a social necessity
based on the moral perceptions of rational persons and that law ought to be similar or close to (approximate)
some higher law contained in certain principles of morality. It is a kind of perfect justice given to man by nature
and man’s law (positive law) should conform to this as closely as possible.

Natural law posits that any law which violates certain moral codes is not valid at all. Human law is thus based
on certain universal principles, discoverable through reason or revelation, which are seen as being eternal,
immutable, and ultimately based on the nature of human beings.

The legal philosopher Lloyd said: natural law is believed to be a rational foundation for moral judgment.

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According to Calvin Eversley: natural law can be seen as true law that emanates from a divine being.

According to the legal philosopher Cicero: natural law is directly connected to, or rather shaped by, those
religious, moral, or ethical considerations which are inherently part of that “right reason in agreement with
nature”

Law, as a device for promoting the desired good, is regarded as being a social necessity in the sense that it
provides both a guide for those who are working for the common good, and a control for those who may deviate
from what is morally acceptable.

All human laws, if they are to be good and therefore valid, must be created in line with specific moral constraints
and must operate in such a way that they provide the optimum conditions, resources and opportunities for the
attainment of the common good. The important question concerning the nature of law is what the law ought
to be in order for it to be a true reflection of such principles (natural law).

A law which substantially deviates from the principles of Natural Law is not only a bad law, but can be regarded
as invalid as well, since it does not truly reflect the model of what law ought to be. Law is an application of
morality and law is justified because it has morals.

Five Assumptions of Natural Law

1. Natural Law is based on value judgments which emanate from some absolute source and which are in
accordance with Nature and Reason.

2. These value judgments express objectively ascertainable principles which govern the essential nature of
persons and of the universe

3. The principles of Natural Law are immutable, eternally valid and can be grasped by the proper
employment of human reason

4. These principles are universal and when grasped they must overrule all positive law, which will not truly
be law unless it conforms to Natural Law.

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Positive Law- (What law is, not what it should be, or its content)
Legal positivism is an approach to the question of the nature of law which regards the law’s most important
feature as being the fact that it is specifically created and put forward— ‘posited’—by certain persons in society
who are in positions of power and who provide the sole source of the validity and authority of such law.

For legal positivists, the issue raised by the question: what is law? Is essentially a question of fact, to be answered
by empirical reference to, and an analysis of, objective social phenomena. In making such an analysis, only such
material as can be factually identified as being legally relevant should be taken into account. This is because the
law is a distinct phenomenon which can originate, exist and be explicable only within its own terms, even though
it may have some similarities or connections with other social phenomena such as morality, religion, and ethics.

In essence, Within the theory of positive law is the belief that law has nothing to do with morals or religion but
is shaped by “certain specifically approved, or accepted procedures for law-making.” According to Eversley;
“Kelsen [a positivist] best epitomizes this view in the formulation of his pure theory of law.”

Positive law is the law created by the sovereign and which must be obeyed even if and when it is unjust or
repressive. Also, it is not acceptable for the citizenry to reject or refuse to obey an unjust law so long as it remains
in force, rather it is for the sovereign itself or Parliament to change the unjust law

Austin, a positivist believes that law is different from other rules because it is a command from the legitimate
sovereign which is backed by sanctions. Exceptions to this are those laws which merely confer rights and are not
backed by sanctions.
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Two Assumptions of Positive law

1. A positivist does not necessarily reject the importance of certain value judgments which may be made
about the law. The basic argument of positivist is that the issues of fact concerning the existence, validity
and authority of the law and the issues of evaluation of such law in terms of its adequacy and propriety
(conformity to conventionally accepted standards of behaviour or morals) must be kept separate and
questions relating to them but be answered separately,

2. Legal positivists normally seek to provide a formula which can be used to identify law either generally or
in specific societies and systems. Most positivists believe that it is possible to provide a neutral and
universally acceptable device by which investigation into the nature of law may be carried out.

The differences between natural law and positive law are:

1. Natural law believes that law ought to be based on some divine, rationale and moral standard while
Positive law believes that Law is the rules created by the sovereign to guide behaviours.

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2. Natural law believes that law is only valid if it is approximate to that divine, rationale and moral standard
while Positive law believe that law is only valid when it is properly created by the sovereign to be
enforceable

3. Natural law represents the normative nature of law as it stipulates that law ought to be of a certain
standard to be good law. Positive law represents the procedural side to the law’s normative nature as it
stipulates how law is created and what it is allowed to proscribe. It does not take into account the moral
undertones of such laws.

The similarities between natural law and positive law are:

1. Both aim to bring society to a desired good; and

2. Both use different criteria to measure whether a law is validly made or not

WHAT IS THE NATURE OF LAW

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By virtue of being law, it should possess certain features whenever and wherever it happens to exist. Law is a
normative social practice which purports to guide behaviour. The nature or essence of law may be found in the
definition of law which is the enforceable body of rules that seek to create and maintain order in society. These
rules have a normative nature which means they stipulate what ought to be done. Law’s nature is in its ability
to proscribe what should not be done and prescribe what should be done i.e. the law’s rule making content.
Another nature of the law is its enforceability. Laws need to be enforceable in order to be effective in
maintaining the desired conduct of society. That is there is often attached a penalty for the act or omission of
particular conduct.

ROLE AND FUNCTION OF THE LAW

The role and function of the law is to bring cohesion to, and maintain order within societies. The more advanced
and complex a society becomes the greater is the need for laws that will regulate human behaviour if peace and
stability are to be maintained. In our Caribbean pluralistic societies (one that has various religious, ethnic, racial,
sexual and political groups co-existing in the same space). Laws are needed to supervise the existence of these
different groups to ensure that all are accorded protection under the law.

Professor Hart argues that:

“The main function of the law is simply to allow human beings to survive in a community as human beings are
fairly equal as it relates to physical strength and intelligence. He highlights that both our powers of self-restraint

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and willingness to help others are limited so we face attack from each other because of competition for scarce
resources. This leads to the creation of rules which enable restraint, protection of person, property and other
interests. The observance of these rules he added must be guaranteed by some kind of penalty”. Such rules
according to Hart are the minimum necessary content of law in any society.

In addition, laws have different role and functions namely:

▪ Defending us from evil- to protect us from those who would seek to harm us for no good reason

▪ Promoting the common good- Law is not just concerned with bringing evil people to account for their
actions. A community made up of people who bear no ill-will to anyone else and are simply concerned
to pursue their own self-interest needs law because there are situations where if everyone pursues their
own self-interest, everyone will be worse off than they would have been if they acted differently.

▪ Resolving Disputes over limited resources

▪ Encouraging people to do the right thing by acting as a deterrent

Employing historical considerations to the functions of law. In the Caribbean plantation society, law was used
to sustain inequity and dependence between the colonisers and the slaves. Marie Bell Antoine states that a
contemporary role of the law must be to attempt to correct the inequities that centuries of enduring the unjust
system of slavery and exploitation wrought. Law should serve as a social engineer. Using its normative nature
to reconstruct our societies for the desired good necessary for the region to flourish.

THE INFLUENCE OF MORALITY AND RELIGION ON THE LAW

The morality of a society is concerned with disapproval in one way or another of what is deemed to constitute
acceptable conduct. Morality constitute ‘that right reason’ which exist within everyone and which leads people
to distinguish between right from wrong and good from evil. Elliot and Quinn in English Legal systems define
moral as:
“Beliefs and values which are shared by a society or section of society”

It is posited that morally upright behaviour is usually the socially acceptable manner in which one conducts
oneself with respect to matters concerning:

▪ Sexual relationships
▪ Money transactions
▪ Attitude towards one’s spouse, family, friends and even strangers
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But this list is not closed as morals influences tend to be ubiquitous.

Note** Moral rules are also social rules, in that they lay down how we should conduct ourselves in relation to
others. BUT

Not all social rules are moral rules

E.g.: Failure to take off one’s hat when entering a room may be deemed unacceptable social behaviour and as
such would amount to a breach of a social rule but they will have occasioned no breach of a moral rule.

Religion according to the Oxford English Dictionary is defined as:

“Recognition on the part of man of some higher unseen power as having control of his
destiny and as being entitled to obedience, reverence and worship”.

Law and Morality

Morality has influenced many of the laws that govern us. Morality stipulates which behaviours are acceptable
and fit to achieve the desired good of society. In that way, morality assists the nature of the law of the law by
giving force to its normative rule making content by setting a standard to which the law forces people to meet.
Morality according to the Natural law school of thought legitimizes law. People obey law because it has a moral
correctness to it. This is why we see the law and morals existing simultaneously to upload the rules of proper
social behaviour that is necessary for the achievement of social cohesion.

While some moral rules are not backed by the obvious sanctions which make some legal rules enforceable, they
are often reinforced by pressure which in some cases may be as strong, if not stronger. E.g. 1. Disapproval of
family and friends, loss of status and being shunned by the community are powerful deterrents 2. If a man has
sex with his daughter he runs the risk of being ostracised by family, friends and the wider community. Natural
law theorist argue that law should reflect morality. Philosopher, Thomas Aquinas saw natural law as higher law
that comes from God, the principles of which should be reflected in the laws societies make for themselves.

Examples of the Relationship between Law and Morality:

R v. Knuller (Publishing etc.) ltd. [1972] 3 WLR 143:

The appellants were directors of a company that published a 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. The House of Lords held that while the offence of conspiracy to outrage
public decency was unknown to the law, the appellants by their actions were nevertheless guilty of behaviour
that could be deemed an offence known to English law, that is conspiracy to corrupt public morals.

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Shaw v. Director of Public Prosecutions [1962] AC 220:

Shaw had published a ladies directory. Lord Diplock said:

‘Shaw’s act of publishing advertisements for prostitutes soliciting fornication tended to corrupt public morals.
Therefore Shaw’s agreement to do that act was a crime at common law’

The court of appeal upheld a conviction against Shaw on the charge of ‘conspiring to corrupt public morals’.

**Morals of society or a section of society change over time and since the law and morality have an
interdependent relationship. The law changes sometimes when morality changes. Evidence of this can be seen
by:

1. Slavery laws- the worlds morality of what it saw as wrong changed and with it came the abolition of
slavery
2. Interracial laws- Love was now seen as being able to transcend the colour of one’s skin and therefore
the law changed.
3. Bastard laws- Even though sex before marriage is still frowned upon making the existence of a child
illegitimate was deemed as unfair and thus the elimination of the legal status of children as bastards

Morals have the ability to change depending on what they are based on. Some people take their morality from
a natural inclination of what is right or wrong. However, most people derive or based their morality on religion.
Religious morals are more often than not immutable and that is why most of the highly controversial topics
concern religious morals and their ability to accommodate a changing morality of some sectors of society.

Law and Religion

The law of the European colonisers was and continues to be Christianity. This has influenced English law and
helped to shape the morality of Caribbean people. The law is heavily influenced by Christian principles. Most of
the 10 commandments have been codified into law. The idea that one should love one’s neighbour as ones loves
oneself permeates the law of torts which enforces society’s conformity with the neighbour principle.

Some religious principles are codified into law but not others. Namely, Bigamy which is a crime and adultery can
play a factor in either spouse obtaining a divorce by virtue of it contributing to an irretrievable break down of
the marriage. Of particular note is fornication which is not illegal (Think about the nature of the law to be able
to enforce rule, is fornication too pervasive and “policeable” to be a crime?”. Other legal issues which have at
their base religion is abortion, sexual freedom and gay marriage.

**As it relates to sexual freedom, On Sunday June 29, 2014. Twenty-five Thousand (25,000) Jamaicans gathered
in half tree for a mass rally geared to send a signal to the government that the people of Jamaica disapprove
with any idea of repealing the buggery law (This criminalizes sex penetrative sex between 2 men)

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**As it relates to gay marriage the United States Supreme Court ruling in the case of Obergefell v. Hodges
legalized gay marriage in all states.

It must be noted that although our societies may be defined as pluralistic, our law and legal systems exhibit a
marked uniformity with respect to their ideological and philosophical stances. The law has adopted a largely
Anglo-Saxon, Christian perspective. Such a perspective embodies a particular concept of morality and justice
which is heavily based on religious principles.

Questions to ask yourself**

▪ Does the law protect and reflect everybody’s interest? - In relation to this question you should consider
whether the law practices legal pluralism or legal tokenism

▪ Should law reflect morality? In thinking about this question, consider whose morality the law should
reflect since we live in pluralistic societies.

▪ Why do we obey the law?