Nature and Function of Law

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Nature of the Legal System

What is Law?

To put it concisely, law involves multiple social-historical phenomena which have taken on different forms and functions in different times and places and therefore cannot be captured by a singular definition of law.

Turn toward other Foreign law

Commonwealth Caribbean courts and jurists have resorted to less English jurisprudence turning to infrastructures such as Europe and North America; whom jurisprudence is more pronounced in constitutional adjudication due to the absence of a written UK Constitution.

Upon turning to the North American model of legal systems, we have adopted many of their case management, court practices, and rules. We also have been Americanized which is believed to be aided by their geographical proximity and the dominance of American television which brings trials, and racially constructed juries etc.

Other things have been borrowed from America Legal system such as Contingency fees.

Mitchell v DPP (1985) 32 WIR 241 (UKPC)

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The Plantation Paradigm

Economists, historians and sociologists refer to society as a "plantation model" as a reference to the fact that these countries were shaped and dictated by sugar plantations.

The plantation paradigm best explains the persistent poverties of the region, both in terms of economics and legal innovation; therefore the region cannot be referred to as endogenous.

There is no complete originality as the written Constitutions of the Caribbean borrowed heavily from international human rights instruments, and used less indigenous input than is usually expected.

The battles between the different imperialist powers did not allow the development of a unique West Indian Law and did not undermine the exogenous nature of law.

The legal and political systems of the original peoples is hardly acknowledged.

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Economic and Political Sovereignty and the impact of law

CARICOM's economic retaliation by the US for not voting to excuse itself from the jurisdiction of the International Criminal Court shows the region's economic and political sovereignty is not untouched by the dictates of larger states.

It is evident that these political realities have implications for the kinds of laws put in place. These laws do demonstrate the extent to which legal changes in policies may dictate from outside the region.

These vulnerabilities were born out of the colonial, imperalist construct in which law had an important part to play

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Pluralistic Societies-Rastafarianism and Beyond

There are several diverse ethnics, religious and class groups existing within societies.

Pluralism is not evident within the law and legal systems of the region. However, from a legal perspective, the commonwealth Caribbean can be seen as homogenous entity, jo9ned by strong British legal ties.

The major deviations are the hybrid legal systems of St Lucia and Guyana. These does not disturb the homogeneity within the Caribbean.

These countries do share same common law as basic law. there are differences within the social, political and economic policy within the law.

Groups which can be identified in the society (prominent in Trinidad and Tobago and Guyana) and to a limited extent, under the law, include religious and ethnic groups such as Muslims and Hindus.

Hindus and Muslims-ethnic and Muslim Groups

East Indians make up over 40% of the population of Guyana and Trinidad and Tobago.

The reluctance of the law to fully recognize and accept other cultures was demonstrated in a case from Trinidad and Tobago,

Mohammed v Moraine and Another: A Muslim student was suspended for wearing her Muslim mode of dress, the hijab, to school instead of the prescribed school uniform. In judicial review proceedings challenging the decision, the court seemed to take a non-committal stance on the issue of religious plurality or discrimination. It found that the relevant regulations under the Education Act had been construed too rigidly. However, it failed to find that the applicant’s constitutional rights to equality and against non-discrimination had been violated

Rastafarians

The law hardly has accepted the proponents of Rastafarinism when, not too long ago, at least one country placed on its statute books legislation which permitted the shooting of Rastafarians on sight.

This is seen in the Dread Act in Dominica in 1974. The statute betrays intolerance to cultural and religious diversity which is perhaps not typical in the region, but nevertheless indicative of the strong adherence, legally and culturally, to dominant social groupings.

The courts have been reluctant to accept Rastafarianism and its distinct set of beliefs as a religion recognised and protected under the law.

In Forsythe v DPP and the AG of Jamaica, 2 :

The appellant who was a Rastafarian was arrested for the possession of ganja and dealing in ganja under the Dangerous Drugs Act. He sought Constitutional redress, on the ground that the Act contravened his Constitutional right to the enjoyment of his freedom of conscience in the practice of his religion as a Rastafarian, since using ganja was a part of the sacrament and essential practices of his Rastafarian faith. The court dismissed the application, albeit on the ground that the Dangerous Drug Act had been saved by the Constitution and was enacted in the interests of public health. The reasoning, in particular, the latter element of public health, is somewhat suspect, given that the court refused to consider the health benefits or otherwise of ganja and further, did not balance the use of ganja with any harms perceived. Further, the court relied on a UK precedent which was not on Constitutional law and did not take into account the impact of a written Constitution enshrining rights of religious freedom.

The Orisha or Orisa

Fared somewhat better than the Rastafarians, in Trinidad and Tobago

In 1991, after years of intense lobbying, the Parliament of Trinidad and Tobago gave them legal recognition by enacting the Opa Orisha (Shango) of Trinidad and Tobago (Incorporation) Act.

In the eyes of the law, they are all uniform subjects.

The Indigenous Peoples

If the law has largely failed to acknowledge the customs and norms of important groups in the society, such as the Muslims and Hindus, it is fair to say that it has almost entirely ignored the original peoples of the region, often called Amerindians.

Reception or imposition of law theories blatantly excluded their legal thought processes and institutions and refused to acknowledge that they had legitimate legal systems in place.

There are indigenous communities in certain countries of the region, notably Guyana, Dominica, Belize, Suriname, St Vincent and Trinidad and Tobago. In fact, the only known ‘Carib Queen’ of the hemisphere resides in the borough of Arima, itself an Amerindian name, in Trinidad and Tobago.

Today, the law acknowledges the existence of indigenous peoples primarily to regulate their habitat on reservations in Guyana, Belize and Dominica.42 There is a limited concept of self-rule.

Dominica and St Vincent were treated as Amerindian strongholds, reserved to the native populations by an Anglo-French treaty of 1660.

The rights of indigenous peoples are now being more fully recognized in international and regional spheres. One important mechanism in this endeavour is by acknowledging and incorporating indigenous historical customs and practices formally into the legal system.

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Pluralistic Societies and the Nature of law

West Indian societies are described as pluralistic societies, meaning that they are made up of diverse ethic, social and religious groups.

Mahammed v Moraine and Another (1995) 49 WIR 371

Court/Judicial body: High Court of Trinidad and Tobago

Background: The applicants in this case, who was a Muslim pupil, challenged the refusal of the school to allow her to wear dress conforming to the hijab, instead of the school uniform, and her subsequent suspension from attending classes. The principal and board of management of the school had explained that, if an exemption were allowed to her, other parents would also seek exemptions; further, that the uniform was a useful tool in administration, was conducive to good discipline, and created a sense of unity and of family. The applicant instituted proceedings for judicial review of the decision to suspend her and also claimed redress for contravention of her constitutional rights, in particular those under

section 4(a) (right to enjoyment of property)

(b) (right to equality before the law) and

(d) (right to equality of treatment by public authorities) the Constitution of Trinidad and Tobago.

Issue and resolution: School dress. The Court was asked to decide whether the applicant’s constitutional rights to equality before the law and treatment by public authorities were breached by the school’s refusal to allow her to wear her hijab. Quashing the school’s decision, the Court held that, although the school had the right to insist on compliance with school regulations, its policy was inflexible and it had been unreasonable in the exercise of its powers.

Court reasoning: The Court determined that the school exercised functions of a governmental and coercive nature when it refused admission to the applicant on account of her not wearing school uniform and accordingly was susceptible to proceedings for redress of constitutional rights. No violations of

section 4(b) (right to equality before the law) or

section 4(d) (right to equality of treatment by a public authority) were found in the absence of bad faith or hostile intention on the part of the respondents.

Nonetheless, the Court ordered that the respondents’ decision is quashed as they had applied the school regulations inflexibly and had not taken into account the psychological effect on the applicant of refusing to allow her to conform to the hijab. There was no evidence to support the respondents’ plea that conforming to the hijab would be conducive to indiscipline or would erode the sense of tradition or loyalty to the school, nor that it would accentuate distinctions between students from affluent homes and less affluent ones. In these regards the decision of the respondents had been an unreasonable exercise of their powers conferred by the Education Act and was unsustainable.

Hindu Marriage Act 1992 – Trinidad and Tobago

https://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/45.03.pdf

Muslim Marriage and Divorce Act 1980

​https://www.lawnet.gov.lk/marriage-and-divorce-muslim-2/

Trinidad and Tobago Carib Reserve Act 1978 – Dominica

http://sundominica.com/articles/the-carib-reserve-act-597/

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Dependent Territories

The law and legal systems of the Commonwealth Caribbean dependent territories must be considered separately from those of the independent territories

As colonies, these territories are under the sovereignty of the British Crown. Consequently, the UK (Westminster) Parliament retains the right to legislate for them.

This concept of sovereignty was described in Tito v Waddell (No 2) as ‘in the sense of government, power, ownership and belonging’. There is, however, a convention which prescribes that the UK Parliament should not legislate for the colonies without their consent.

The application of Acts of the Westminster Parliament to the colonies is limited by two constraints.

First, the statute must expressly state that it is to apply to the colony or colonies or show necessary intention.

Secondly, the application of British imperial legislation is limited by the local circumstances rule to the effect that it can only apply if it is appropriate to the conditions of the colony. Where Westminster legislation applies, it overrides any local statute with which it conflicts\

In the Cayman Islands, the position is further complicated by the fact that the Cayman Islands was formerly a dependency of Jamaica.

This dependent legal relationship creates a dilemma in the legal and social consciousness of the citizens who live there. While they may wish to retain their status as British territories, they also want their laws to be more representative of their own social mores, as is the case with the independent countries. As a result, they may resist what they perceive to be legal initiatives by the British which are insensitive to their concerns.

This is seen in late 1997 and early 1998, cruise ships containing tourists who were also homosexuals attempted to land in the Cayman Islands, Bermuda and the British Virgin Islands. There were public protests by citizens however the homosexuals were offended and such they went to British Government. The British Government in turn instructed the British Caribbean territories that they would have to remove from their statute books laws outlawing homosexuality. This, of course, caused a great outcry among different countries due to 'strong cultural and religious forces . . . opposed to removing any ban on homosexuality.’

There has also been opposition in the dependent territories to the abolition of the death penalty, long since effected in the UK. In addition, there has been some deviation from orthodox British law both in case law and statute.

With the exception of Montserrat, British Caribbean territories are well-developed offshore financial industries.

In fact, the Cayman Islands and the British Virgin Islands are two of the most established and successful offshore financial centres in the world.

These dependent territories have been allowed to design and implement laws for their respective offshore regime which differ radically from, and even conflict with, those of the ‘mother country’

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Law as a Moral Force

G Dworkin, ‘Delvin was right: law and the enforcement of morality’ (1999) 40 (3) William and Mary law Review 927.

The law allows by way of reasons for coercion, the report made clear at least one ground that is not allowed: It is not the duty of the law to concern itself with immorality as such.

Although rape is both harmful and immoral, the reason the law prohibits it is only that it is harmful-is not available to liberals who wish to reject some thesis about the enforcement of morality. The thesis has to be formulated in terms of different parts of morality. Some parts may be enforced by the law; some parts may not.

What are the parts of morality that may not be enforced? Here, matters are less clear, but they seem to include various ideals, such as ideals of virtue and character, certain ideals of fairness or fittingness, and ideals of sexual conduct

Has society the right to pass judgement at all on matters of morals?

If a society has the right to pass judgement, has it also the right to use the weapon of the law to enforce it?

If so, ought it to use that weapon in all cases or only in some; and if only in some, on what principles should it distinguish?

Devlin offers an answer to the last question: There is no logic to be found in this. The boundary between the criminal law and the moral law is fixed by balancing in the case of each particular crime the pros and cons of legal enforcement in accordance with the sort of considerations I have been outlining.

R v Gibson [1991] All E.R. 439, CA

Shaw v DPP [1962] A.C. 220; [1961]2 WLR 897

Conspiracy to Corrupt Public Morals – Prostitution – Public Morals – Court’s Ability to Create New Offence

Facts

The defendant created magazines, which contained personal adverts for prostitutes. This included their personal contact details, photographs and descriptions of their services. The solicitation of prostitution was now illegal by virtue of the Street Offences Act 1959. The defendant also received money from the prostitutes for the directory; thus, he was living on the earnings of prostitutes. The defendant was convicted of conspiracy to corrupt public morals, as well as acting contrary to s30 of the Sexual Offences Act 1956 (living on the earnings of prostitution) and s2 of the Obscene Publications act 1959 (publishing an obscene article).

Issues

The defendant appealed the conviction of conspiracy to corrupt public morals, arguing that this was not a charge recognised by the law of England. The issue for the Court was whether there was a charge of conspiracy to corrupt public morals and if the court had the discretion to create such an offence.

Decision/Outcome

The appeal was dismissed and the conviction was upheld. The Court found the defendant’s decision to feature prostitute adverts in his magazines as dangerous to the welfare of society and it was their duty to protect the public majority’s morals, as well as safety and order. This meant that the Court was able to create offences in order to adapt to changing standards in life and in regard to the values and morals of society. Thus, this case created the new offence of conspiracy to corrupt public morals and established that an offence that was not written in criminal statute could be recognised as a legal charge.

Knuller v OPP [1972] 3 WLR 143; [1973] 2 All ER 446

Conspiracy to Corrupt Public Morals – Homosexual Practices – Shaw v DPP followed – Courts no longer Create New Criminal Offences

​​​​​​​​​​​​​​Facts

The defendant was the director of a company, which published regular magazines for distribution. Inside the magazines, there was a page that had columns to advertise homosexual practices. It was concluded that this information encouraged males to meet up and engage in homosexual activity. The defendant was convicted for conspiracy to corrupt public morals.

Issues

The defendant appealed his conviction for conspiracy to corrupt public morals. This was on the issue of whether there was an offence of conspiracy to corrupt public morals recognized by the law of England and if he could be convicted of such an offence.

Decision/Outcome

The appeal was dismissed and the conviction was upheld. The law does recognise conspiracy to corrupt public morals as an offence, as this was created by Shaw v DPP and this was to be followed. This case established that the courts has a duty to protect society’s morals and can enforce their own decisions. Lord Reid commented that he did not agree with the Shaw v DPP verdict and he had dissented in that case, but he also did not wish to reconsider this decision now. He stated that while decisions are not always binding on other courts, there is a need for certainty in the law that means not every disagreeable decision should be reversed. The courts now have no power to create new criminal offences and can only be created by Parliament.

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Rule of Law

The preambles to several of our constitutions contain references to the rule of law’. What does this concept mean? In a Commonwealth Caribbean context, it may mean that public authority is only to be exercised in accordance with stated law and the constitution. In a broader sense, however, the concept of the rule of law has connotations of the appropriateness of law

The function of the legislature in a free society under the Rule of Law is to create and maintain the conditions which will uphold the dignity of man as an individual. This dignity requires not only the recognition of his civ il and political rights but also the establishment of the social, economic, educational and cultural conditions which are essential to the full development of his personality.

If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy . But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that good should triumph.

The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. That much is common ground. It is also to be insisted that the rule of law is just one of the virtues which a legal sy stem may possess and by which it is to be judged.

It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man.

A non-democratic legal s stem, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.

This does not mean that it will be better than those Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law.

The Basic Idea

The rule of law’ means literally what it says: the rule of the law. Taken in its broadest sense this means that people should obey the law and be ruled by it. But in political and legal theory it has come to be read in a narrower sense, that the government shall be ruled by the law and subject to it.

It has two aspects: (1 ) that people should be ruled by the law and obey it, and (2) that the law should be such that people will be able to be guided by it

The ideal of the rule of law in this sense is often expressed by the phrase ‘government by law and not by men’

But is not that a tautology? Actions not authorized by law cannot be the actions of the government as a government. They would be without legal effect and often unlawful.

For the lawyer anything is the law if it meets the conditions of validity laid down in the system’s rules of recognition or in other rules of the system. This includes the constitution, parliamentary legislation, ministerial regulations, policemen’s orders, the regulations of limited companies, conditions imposed in trading license's, etc.

Government by law and not by men is not a tautology if ‘law’ means general, open, and relatively stable law.

The doctrine of the rule of law does not deny that every legal system should consist of both general, open, and stable rules (the popular conception of law) and particular laws (legal orders), an essential tool in the hands of the executive and the judiciary alike.

As we shall see, what the doctrine requires is the subjection of particular laws to general, open, and stable ones. It is one of the important principles of the doctrine that the making of particular laws should be guided by open and relatively stable general rules.

This is the basic intuition from which the doctrine of the rule of law derives: the law must be capable of guiding the behaviour of its subjects.

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RULE OF LAW CONT'D

Principles:

Many of the principles which can be derived from the basic idea of the rule of law depend for their validity or importance on the particular circumstances of different societies.

All laws should be prospective, open, and clear. One cannot be guided by a retroactive law.

The law must be open and adequately publicized. If it is to guide people they must be able to find out what it is. For the same reason its meaning must be clear. An ambiguous, vague, obscure, or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it.

Laws should be relatively stable. They should not be changed too often. If they are frequently changed people will find it difficult to find out what the law is at any given moment and will be constantly in fear that the law has been changed since they last learnt what it was. But more important still is the fact that people need to know the law not only for short-term decisions.

Firstly, A=a law is either retroactive or not, but it can be more or less clear, more or less stable, etc. It should be remembered, however, that by asserting that conformity to the principles is a matter of degree, it is not meant that the degree of conformity can be quantitatively measured by counting the number of infringements, or some such method.

Secondly, the principles of the rule of law affect primarily the content and form of the law (it should be prospective, clear, etc.) but not only them. They also affect the manner of government beyond what is or can usefully be prescribed by law

Thirdly, though the rule of law concerns primarily priv ate citizens as subject to duties and governmental agencies in the exercise of their powers (on which more below), it is also concerned with the exercise of private powers.

The making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules. It is reinforced by a belief that the rule of law is particularly relevant to the protection of equality and that equality is related to the generality of law. The last belief is, as has often been noted before, mistaken. Racial, religious, and all manner of discrimination are not only compatible but often institutionalized by general rules.

Two kinds of general rules create the framework for the enactment of particular laws: those which confer the necessary powers for making valid orders and those which impose duties instructing the power-holders how to exercise their powers. Both have equal importance in creating a stable framework for the creation of particular legal orders

The independence of the judiciary must be guaranteed. It is of the essence of municipal legal systems that they institute judicial bodies charged, among other things, with the duty of applying the law to cases brought before them and whose judgments and conclusions as to the legal merits of those cases are final. Since the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly.

The principles of natural justice must be observed. Open and fair hearing, absence of bias, and the like are obviously essential for the correct application of the law and thus, through the very same considerations mentioned above, to its ability to guide action.

The courts should have review powers over the implementation of the other principles. This includes review of both subordinate and parliamentary legislation and of administrative action, but in itself it is a very limited review—merely to ensure conformity to the rule of law.

The courts should be easily accessible. Given the central position of the courts in ensuring the rule of law (see principles 4 and 6) it is obvious that their accessibility is of paramount importance. Long delay s, excessive costs, etc., may effectively turn the most enlightened law to a dead letter and frustrate one’s ability effectively to guide oneself by the law.

The discretion of the crime-preventing agencies should not be allowed to pervert the law. Not only the courts but also the actions of the police and the prosecuting authorities can subvert the law. The prosecution should not be allowed, for example, to decide not to prosecute for commission of certain crimes, or for crimes committed by certain classes of offenders. The police should not be allowed to allocate its resources so as to avoid all effort to prevent and detect certain crimes or prosecute certain classes of criminals.

The eight principles listed fall into two groups.

Principles 1 to 3 require that the law should conform to standards designed to enable it effectively to guide action.

Principles 4 to 8 are designed to ensure that the legal machinery of enforcing the law should not deprive it of its ability to guide through distorted enforcement and that it shall be capable of supervising conformity to the rule of law and provide effective remedies in cases of deviation from it.

The Value of the Rule of Law

The rule of law is often rightly contrasted with arbitrary power

Arbitrary power is broader than the rule of law. Many forms of arbitrary rule are compatible with the rule of law

The arbitrary use of power for personal gain, out of vengeance or favouritism, is most commonly manifested in the making of particular legal orders. These possibilities are drastically restricted by close adherence to the rule of law

We value the ability to choose styles and forms of life, to fix long-term goals and effectively direct one’s life towards them. One’s ability to do so depends on the existence of stable, secure frameworks for one’s life and actions. The law can help to secure such fixed points of reference in two ways:

(1) by stabilizing social relationships which but for the law may disintegrate or develop in erratic and unpredictable ways;

(2) by a policy of self-restraint designed to make the law itself a stable and safe basis for individual planning. This last aspect is the concern of the rule of law

This second virtue of the rule of law is often, notably by Hayek, identified as the protection of individual freedom.

More important than both these considerations is the fact that observ ance of the rule of law is necessary if the law is to respect human dignity. Respecting human dignity entails treating humans as persons capable of planning and plotting their future. Thus, respecting people’s dignity includes respecting their autonomy, and their right to control their future. A person’s control ov er his life is nev er complete.

Naturally, there are many ways in which one person’s action may affect the life of another. Only some such interferences will amount to an offence to the dignity or a violation of the autonomy of the person thus affected. Such offences can be divided into three classes: insults, enslavement, and manipulation.

An insult offends a person’s dignity if it consists of or implies a denial that he is an autonomous person or that he deserv es to be treated as one. An action enslaves another if it practically denies him all options through the manipulation of the environment. One manipulates a person by intentionally changing his tastes, his beliefs or his ability to act or decide. Manipulation—in other words—is manipulation of the person, of those factors relevant to his autonomy which are internal to him. Enslavement is the elimination of control by changing factors external to the person.

The law can violate people’s dignity in many ways. Observing the rule of law by no means guarantees that such violations do not occur. But it is clear that deliberate disregard for the rule of law violates human dignity. It is the business of law to guide human action by affecting people’s options. The law may, for example, institute slavery without violating the rule of law.

The v iolation of the rule of law can take two forms. It may lead to uncertainty or it may lead to frustrated and disappointed expectations.

Some Pitfalls

The undoubted value of conformity to the rule of law should not lead one to ex aggerate its importance. We saw how Hayek noted correctly its relev ance for the protection of freedom. We also saw that the rule of law itself does not prov ide sufficient protection of freedom.

In considering the relation between the rule of law and other values the law should serve, it is of particular importance to remember that the rule of law is essentially a negative value. It is merely designed to minimize the harm to freedom and dignity which the law may cause in its pursuit of its goals however laudable these may be.

Finally, regarding the rule of law as the inherent excellence of the law means that it fulfils essentially a subservient role. Conformity to it makes the law a good instrument for achieving certain goals, but conformity to the rule of law is not itself an ultimate goal. This subservient role of the doctrine shows both its power and its limitations. On the one hand, if the pursuit of certain goals is entirely incompatible with the rule of law, then these goals should not be pursued by legal means. But on the other hand one should be wary of disqualifying the legal pursuit of major social goals in the name of the rule of law.

After all, the rule of law is meant to enable the law to promote social good, and should not be lightly used to show that it should not do so. Sacrificing too many social goals on the altar of the rule of law may make the law barren and empty.

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The Historical Function of Law in the Commonwealth Caribbean

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Law as an Instrument of Change and Social Reform