Intro to Caribbean Legal Systems - L6 v2 PDF

CARIBBEAN LEGAL SYSTEMS: DEFINITIONS OF LAW TYPES OF LAW CONCEPTS AND THEORIES LAW & MORALITY BUT MA’AM…WHAT IS LAW?  Firstly: there is no standard definition of “law”  Put simply, law may be described as an enforceable body of rules that govern a society. Note however, that this definition i...

CARIBBEAN LEGAL SYSTEMS: DEFINITIONS OF LAW TYPES OF LAW CONCEPTS AND THEORIES LAW & MORALITY BUT MA’AM…WHAT IS LAW?  Firstly: there is no standard definition of “law”  Put simply, law may be described as an enforceable body of rules that govern a society. Note however, that this definition is very limited.  Sir John Salmon defined law as “a body of principles recognised and applied by the state in the administration of justice.”  In this context, the words ‘principles’ and ‘justice’ signify regularity and uniformity. Salmon’s definition relates only to state law, that is, the law of a particular country. This does not include international law. DEFINITIONS OF LAW  Here are some more descriptions:  the legislative pronouncement of rules to guide behaviour  the total of those rules of conduct put in force by legislative authority of a state, or court decisions, or established by local customs  An institution essential to the social nature of man without which he would be a very different creature [adapted from CAPE Law Unit 1 Study Guide] …WHAT IS LAW?  Municipal Law Municipal law can be described as the law which is applicable within a particular state - also known as state law. This is divided into two broad categories:  Public law: deals with the rights and duties between individuals and the state. Public law includes both constitutional and administrative law, that is, the functions of the constitution, government organisations. These include local authority e.g. district/community councils. Public law also deals with crime. This involves the state’s power and control over an individual (sanctions of the law). (You will also note that this first CAPE unit is thus called ‘Public Law’ as it acquaints you with the aforementioned.)  Private law: deals with the rights and duties of individuals within society. Private law deals with the legal relationships of persons in everyday transactions. It is also concerned with the legal position of corporate bodies (legal personality) and associations of persons. Private law includes the law of tort (a civil wrong), contract law, commercial law, family law, and property law (which involves a consideration of rights which exist in property and also transfer of property e.g. lease). (You will cover some of these areas in CAPE Unit 2 ‘Private Law’) …WHAT IS LAW? International Law  International law is a set of laws which governs the relationship between states. …WHAT IS LAW? Criminal Law  Criminal law is concerned with legal rules which provide that certain conduct (or lack thereof - omissions) shall attract punishment by a state e.g. theft. Trials on indictment are usually brought in the name of the Crown (noted as ‘R’ for ‘Regina’ - e.g. R v. John Doe) or, after becoming a republic, in the name of the state eg The State v. Jane Doe. These trials are usually prosecuted by public authority (Office of the Director of Public Prosecutions). An individual generally cannot discontinue a criminal prosecution at will because this matter is brought in the public interest and by a public authority.  Sanctions are primarily intended to protect the community and punish the offender. …WHAT IS LAW? Civil Law  Civil law generally embraces the whole of private law and all divisions of public law except criminal law. The action is brought by private individuals. The claimant may discontinue the action at any time. The state does not interfere or prevent the maintenance of a civil case. …WHAT IS LAW? Substantive Law  This may be very loosely defined as written law (such as a constitution or legislation) which regulates the rights and duties of individuals in society, and between individuals and the state. …WHAT IS LAW?  Procedural Law This deals with the methods, structure or framework by which rights and duties are judicially enforced e.g. the legal rules governing the process of a court action. LAW – FUNCTIONS OF LAW  How does the law work? What is it meant to do? What does it actually do? How has it worked before?  Historical context, perhaps?  Antoine in the text ‘Commonwealth Caribbean Law and Legal Systems’ states that law was an instrument of social control and public order in the plantation society. She argues that any discussion on the role and functions of law and legal systems in the Commonwealth Caribbean should note its use in instituting and upholding the system of slavery and colonialism which previously existed throughout the region. She further argues that the brutal treatment meted out to the slaves was permitted by law.  Goveia in the text ‘Slave Society in the British Leeward Islands’ states that the slave laws were the most ubiquitous form of public control. LAW – FUNCTIONS OF LAW  Arguably, the primary function of law in the colonies was to maintain the slave system by guaranteeing the economic, social and racial subordination of Negroes.  Antoine also states that slavery created a duality in law and legal institutions. There was one set of laws and institutions for the master and another for the slaves. The penalties reserved for slaves were much harsher than those for the masters.  When a slave was executed his owner was compensated in the form of damages for his loss. Obeah acts were designed to rid the slaves of their cultural identity e.g. a slave was convicted for an offense based on the ‘Minje Mama’ or ‘Water Mother Peace’ which was considered an obeah practice. Antoine further argues that even after the collapse of the slave system, vagrancy laws were implemented which forced former slaves back to the plantation. Activities such as loitering were criminalised. Vagrancy laws remained an instrument of social control, maintaining the pre-emancipation status quo. THINK ABOUT IT…  Any comparison to slave laws in the American South? Thoughts?  Can we think of any other events in history where the law sanctioned horrible acts such as slavery? SO…WHAT IS IT ALL ABOUT THEN?  A few uses of the law: 1. Public order 2. Social control 3. Social cohesion 4. Defining of rights and duties 5. Balancing of conflicting societal interests SO…WHAT IS IT ALL ABOUT THEN? David Funk “Seven Major Functions of Law” (1972) Case Western Reserve Law Report 1. To allocate government power in the society 2. Legitimise government institutions 3. To order society 4. To control individuals 5. To adjust conflicts i.e. to adjudicate between individuals 6. To dispense justice 7. To change society  LAW - CONCEPTS  Important! Legal theory! Concepts of Law  Legal theorists, it is widely believed, constitute two main schools of thought: (1) Naturalists; and (2) Positivists. LEGAL THEORIES  In assessing the merits of any definition of law, the following theories will be examined:  Positivism/the Positivist’s perspective (Positive Law Theory – John Austin & Prof. H.L.A. Hart – enforcement and command as major requirements of the law).  Naturalist/Idealist views – There must be some element of universally acceptable principles of justice. LAW - CONCEPTS  Positive law: the central belief is that law has nothing to do with morals or religion, but is instead shaped by certain specifically approved or accepted procedures for law making.  Natural/Moral law – Naturalists believe that there is a higher law known as natural law to which society must turn for a basic moral code. They believe that law should not only be moral but should contain rules which prohibit immoral behaviour. However, there are diverging views regarding the source of the moral code. POSITIVE LAW THEORISTS  John Austin (Command theory)  In “The Province of Jurisprudence Determined,” Austin states that law is different from other rules; law is a command from a legitimate sovereign. This command is backed by sanctions. POSITIVE LAW THEORISTS  Professor H. L. A. Hart  In “The Concept of Law,” he disagrees with Austin’s ‘command’ theory. He argues that the command theory, while authoritative, makes the wrong assumption that all rules make commands or impose sanctions. There are many laws which merely confer rights and are not backed by sanctions.  He identifies two main sets of rules: primary and secondary rules. Primary rules – rules which any society needs in order to survive. These rules forbid conduct that is most destructive to the society. Even simple societies contain these rules. Secondary rules – These confer power rather than impose duties. These secondary rules are divided into 3 types: 1. Rules of Adjudication – These rules allow society to settle disputes. 2. Rules of Change – These rules promote change e.g. Parliament (new acts/the amendment or repeal of acts) 3. Rules of Recognition – These rules demonstrate the acceptance of the law by society. They explicitly identify which rules in society have legal force e.g. in the U.K. there is a single rule of recognition, that is, what the Queens enacts.  Antoine argues that positivists such as Austin and Hart only attempt to define what law is and not what it should be or its content. NATURAL LAW THEORISTS  St. Thomas Aquinas – He argued that the source of law comes from God. He was of the belief that the first precept of the law is that good is to be done and promoted and evil is to be avoided.  Thomas Hobbes – The philosopher states that the only way natural law could prevail was for man to submit to the commands of the sovereign. He argues in his text that moral judgements about good and evil cannot exist until they are deemed by a society’s central authority. The monarchy is the best form of government and the only one that could guarantee peace. There must be a supreme power of some kind in society.  Antoine states that moralists believe that the law should not only be moral in itself but should contain rules which prohibit immoral behaviour. In such a case, the law cannot divorce itself from these moral values. THINK ABOUT IT…  Who determines what is good and what is evil? Does it differ from society to society?  Should morals be included in the law? Why or why not? Does the idea of ‘whose morals’ make a difference to you or not? Explain THINK ABOUT IT…  Should moral and customary laws be included, that is, law which has not been approved by legislature but which are felt by the majority of society to be legally binding? Why, or why not?  Should the law of a given state (municipal/state law) be the only law that is accepted? Or should international law be included in the definition of law? MORALS…TO BE OR NOT TO BE… Case: Shaw v. DPP (1962) [criminal law]  The defendant was convicted for the offense of conspiracy to corrupt public morals when he published a pornographic book. It was a ladies’ directory containing names, addresses, photos and other details of prostitutes. Viscount Simmonds stated that the supreme and fundamental purpose of the law is to conserve not only safety and order but also the moral welfare of the state. The House of Lords upheld the conviction. MORALS…TO BE OR NOT TO BE…  Case: Knuller v DPP [criminal law]  The defendant and others published advertisements inviting men to contact them for homosexual purposes. They were convicted of the charge ‘conspiracy to corrupt public morals’ and ‘outraging public decency’. In 1967, the Sexual Offenses Act was passed which stated that homosexual acts between consenting adult males in private were no longer a criminal offense. Lord Reid, who had dissented from the majority decision in Shaw’s case, felt that Shaw should still apply if only to avoid inconsistency. He stated, “I read the Act as saying that, even though it may be corrupting, if people choose to corrupt themselves in this way, that is their affair, and the law will not interfere, but no licence is given to others to encourage the practice.” MORALS…TO BE OR NOT TO BE…  Think about it…What are public morals? 1962 vs today – any change? MORALS…TO BE OR NOT TO BE…  Can we agree that society’s morals change over time?  For example, homosexuality is now being accepted in the wider society e.g. the U.K. and parts of the USA, and slowly in the Caribbean. In a given society, it is unlikely that all members agree and share identical moral values e.g. some persons consider murder to be wrong while others believe that there are some situations in which murder may be justified.  There is no general consensus in relation to the death penalty. Many arguments suggest that this sanction is inhumane and is not a deterrent to commit murder, while others believe in ‘an eye for an eye’ on this point. MORALS…TO BE OR NOT TO BE…  Other moral debates include race, gender equality and cultural identity e.g. polygamy in varying religions, etc. however in Western civilisation this is considered immoral.  What do you think about the acceptance of other cultural practices which may differ from the ‘status quo’ in a given state? MORALS…TO BE OR NOT TO BE…  Caribbean example re cultural/religious acceptance: Antoine suggests that the law can hardly be said to have accepted the proponents of Rastafarianism when in the 1970s Dominica had valid legislation which permitted the shooting of Rastafarians on sight. The Prohibited and Unlawful Societies and Associations Act No. 32 of 1974 of Dominica, called the ‘Dread Act’ provided as follows:  “No proceedings either criminal or civil shall be brought or maintained against any person who kills or injures any member of an association or society designated unlawful, who shall be found at any time of day or night inside a dwelling- house.”  The Act also further provided a rule that any Rastafarian [wearing hair in the dreadlock style] or other member of a prohibited society could be arrested without warrant. Security forces also received immunity from this killing of members of the Rastafarian movement. MORALS…TO BE OR NOT TO BE…  Elliott and Quinn in the text ‘English Legal Systems’ state, “moral values are often reinforced by pressures in society.” Loss of status and being shunned by the community are powerful incentives against immoral conduct.  What about this: many persons are opposed to prisoners and teenagers having access to condoms although there is a continuous threat of HIV in our society. There are also divisive views to the legalisation of sex work which some argue could result in the reduction of health risks. MORALS…TO BE OR NOT TO BE… Why does society obey the law? Legal theorists  Austin believes persons obey the law because of the sanctions imposed, while Hart believes that persons obey the law because of acceptance of it. He (Hart) suggests that in order for law to promote social cohesion in a simple society with only primary rules, members must not only obey these rules, but also consciously see them as common standards of behaviour, breaches of which can be legitimately criticized. Some arguments suggest that society obeys the law because of the belief that it is right or morally correct. Antoine asks whether there is an obligation to obey rules emanating from the state, which are immoral e.g. the apartheid laws of South Africa. Persons who obey such laws may have believed that they were simply obeying the law, yet they may be brought before international courts (human rights issues). THE NATURE OF LAW?  Nature or essence of law – consult the definitions  No singular ‘true’ definition  Nature of law is found in its ability to make rules (think about why) LAW…THE BEGINNING  The Origin of the Legal System as we know it:  So wait…part dis ting come from?!  We mentioned this earlier in a Caribbean context…  English Perspective  After the Norman Conquest, William the Conqueror helped establish a unified legal system in Britain which previously had was a random system of laws taken from various invaders  The birth of the phrase ‘common law’ was due to the new process of standardised laws, which meant a set of laws ‘common’ to the whole of England ORIGINS OF LAW  Caribbean context:  Europeans come to the West Indies  They implement their laws in the various countries which they invaded  Previous laws used by native populations eroded  European laws transported to the colonies and received there.  Some islands were ruled by many different powers eg Guyana: French, Dutch, English  We now have many different systems in the Caribbean…  Roman Dutch  English common law  Hybrid WHAT TO DO NEXT?  Homework:  ***List the main features of positive law and natural law. Your research should include some of the theorists and their arguments supporting each framework. Which, if either, do you agree with? Think about why or why not.***