About the Law BY LLBLAWS Discuss the connection between natural law theory and fundamental human rights as articulated in Commonwealth Caribbean constitutions. (Dec. 2009 #2) Generally, natural law theorists have purported that law comes from a body of rules or precepts that are distinct from human created legal systems. These rules are heavily influenced by morality and it centrally claims that there are moral principlesl of universal applicability, and principles of political morality in which human communities ought to be constituted and governed.
The question has been asked if Natural law has influenced the development of fundamental human rights which has been articulated in Commonwealth Caribbean countries, the short answer to this would be yes but after going through different aspects of the Jamaican constitution this view may or may not change. Before looking at the major proponents of natural law, a brief synopsis of the development of human rights will be given and how this has influenced Commonwealth Caribbean constitutions in particular the Jamaican constitution.
Fundamental rights are generally-regarded as a set of entitlements in the context of legal system, this system is said to be based upon basic or inalienable entitlements or “rights. These rights have been clearly expressed in the Jamaican constitution which has been influenced by the proclamation of the Universal Declaration of Human Rights on December 10, 1948 at the General Assembly of the United Nations. This has been adopted in the European Convention on Human rights which was adopted by the Nigeria Constitution which influenced the development of human rights in the Jamaican constitution in 1962.
The rights can be found in Chapter 3 Sections 13-26 in the Jamaican constitution. Based on this development it can be safely said that basic human rights are a common thread throughout the world including the Caribbean. The importance of human rights could even be traced as far back as to the period of Enlightenment in the 1700’s where John Locke and other philosophical thinkers used these rights to support the development of constitutions. AQUINAS Law is derived from the Latin word ‘lex’ which means to bind and Aquinas argues that law is necessarily binding because of its Justness – its connection to moral principles.
Aquinas began with addressing the question of the nature of law as he defines law s ‘an ordinance of reason for the good of the community promulgated by him who hath the care of the entire community (i. e. the person or persons having the power of the government. ) He believes there are four types of law: eternal law which comprises God given rules governing all creation, natural law which is that segment of eternal law with is discoverable by reason, divine law which is law that has been revealed in scripture and human law, which consists of rules supportable by reason, but articulated by human authorities for the ‘common good. He looks at laws as Delng ‘ratlonal’ ana Tor tne good 0T tne community wnlcn nlgnllg nts tne moral considerations which the law must Justify. He feels that unjust laws are made contrary to reason and is not true law but a perversion of the law of which individuals have no moral obligation to obey but even though the enactment of the laws may be unjust they must still be followed so as to prevent anarchy in the society. Laws are unjust when they: (i) further the interest of the law-giver only (it) exceed the powers of the law-giver (iii) impose burdens unequally on the governed people
It is not sufficient or acceptable for laws to be made for the benefit of a fraction of society only. Such laws would be evil for the rest of society and could not therefore be Justified. They must have been directed by some corruption of reason rather than reason itself. Any society in which the laws are not for the good of society would be operating on the basis of ‘evil in the guise of law, not on the basis of law. In other words, the rules of that society would be operating under the name of law but would not in fact be law since they are unjust and Justice is the ultimate principle of law and moral philosophy.
Such societies have existed in recent history for example Cambodia, Nazi Germany, and Apartheid South Africa. Aquinas argues that law cannot Just derive its legitimacy from the obedience of its subjects because people will even obey the laws of an evil regime which has taken place in the above stated countries. People will obey ‘evil laws’ if they are within their best interest to do so or if they are backed by sufficiently painful sanctions. Aquinas therefore spoke of the existence of some transcendental force from which we derive our moral principles and from which law derives its legitimacy.
Human rights are universal and immutable. This has been a well known view which has been expressed in the Jamaican constitution. All humans in Jamaica are recorded certain rights that are from nature and are not based on political philosophy. FINNIS Finnis acknowledges that principles of practical reasonableness which are self evident and basic are the main concerns of natural law. He believes in the forms of human good that are indispensible to a human beings title and well being. These include: Friendships, Religion, Aesthetics, Play, Practical reasonableness, Life,
Knowledge. Finnis believes that since these are essential to our well being then we lay moral claims to them. Religion for example should not be interfered with by anyone and we are free to worship and express our religious beliefs. Therefore in the making of our constitutions we should find a way to protect this right as well as our other rights. These rights preceded the making of our constitutions and were not created by our constitutions. These rights are enforceable by the individual citizen and are not dependent on politics but are grounded in a higher law of reasoning.
West Indian constitutions for example the Jamaican constitution are similar to Natural Law as they embody a fundamental rights provision, separation of powers which is a requirement of practical reasonableness; along with the independence of the Judiciary, which all play important roles in West Indian legal systems. wnat are tne Tunaamental areas In tne Jamalcan constltutlon tnat nave Deen purported by Natural Law theorists? The Separation of Powers doctrine though not expressly stated in the constitution is implied and has been entrenched in the Jamaican constitution similarly to our human rights.
The principle of separation of powers is still a principle of normative value which ensures the security of human good. This doctrine has also been discussed in Hinds v R as the structure and provisions of the constitution all show an existence of the doctrine. The Bill of Rights contains fundamental human rights and can be found in Chapter 3 of the Jamaican constitution. The fundamental rights and freedoms listed in the Bill of Rights are understood to constitute the moral core of the constitution, thus they are of paramount importance to the ultimate political question of right governance.
This is evidenced in section 13 where it states: ‘… every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely the’ right not to be tortured, or to be deprived of life’ This view expressed in the constitution has also been supported by natural law theorists especially in the human forms from Finnis.
This section highlights the mportance of the freedom of choice of religion, life and other inalienable rights. Issues like the legality of homosexuality in Jamaica would not be an issue if the Jamaican constitution strictly followed the proponents of natural law as the real question is whether in a constitutional democracy, the state has the right to criminalise the practice of homosexuality among consenting adults. The Power of a state to criminalise any behaviour is one of its most important rights.
The state can criminalise certain forms of behaviour such as murder, rape, theft once these forms of behaviour violate our most human rights. Based on this then the other question to be asked is Where does the state derive the right to criminalise homosexual behaviour among consenting adults when the right to self-realisation, privacy and intimacy are protected under the constitution. Each individual has equal rights under the constitution, rights which are derived from nature in accordance to Aquinas and practical reasonableness in accordance to Finn’s.
Based on this the Jamaican laws against homosexuality are incongruous with theories of natural law, it is not that natural law has no place in the Jamaican constitution but the extent or the egree of the influence of natural law has been lessened in more recent times. Due Process: The right to due process of law or as stated in the Jamaican constitution as the protection of law clause is the greatest legal procedure of constitutional democracy. It can be found in section 20 (1) and (2) of the constitution.
It is based on the fundamental moral and universal right not to be disparaged or debased or to be arbitrarily and unjustly treated. Since the government is the principal agent of due process, It Tollows tnat It protects tne Inalvlaual Trom arDltrary government aeclslon making. It is one of the conditions that must be met for the morally acceptable exercise of power. It embodies the value of human dignity at the core of the natural law theory. It also supports natural law theory of ‘Just punishment’ and that persons should not be punished arbitrarily.
The issue of the mandatory death penalty for example is a concept that would not be accepted by natural law theories. In Jamaica for example some have argued that this form of punishment is arbitrary and goes against the separation of powers doctrine as the legislature seemingly adapts the role of the Judiciary in applying punishments for wrongful acts. This punishment also violates a person’s right to life which is unconstitutional. In the case of Boyce and Joseph v R2, the Barbadian appellants were both convicted of murder and were sentenced to death.
The Privvy Council held that the mandatory death penalty was cruel and inhumane but it was saved by the saving clause and held that they could not commute the sentence. The Caribbean Court of Justice however gave precedence to their fundamental human rights and commuted their sentences which would be in support of natural law theories. Another example of degrading punishments and reatments has been shown in the case of Pratt and Morgan v AG of Jamaica where it was held by the Privvy Council that having a person on death row for over 5 years was inhumane and as a result their appeal was allowed.
This Jamaican case saw many changes to other Constitutions of the Caribbean Commonwealth but certain sections of the Constitutions have been protected by different savings law clauses. The fact that the Jamaican constitution is able to save certain laws which natural law theorists find to be against human rights shows even more that influence of natural law continues to decrease in some way or another. Savings Law Clauses A general savings clause refers to the entire Bill of Rights, while a special savings clause refers to a specific section or provision of the Bill of Rights.
They both serve to compound the problem of reading and understanding the fundamental rights provisions. They are each in tension with the fundamental rights provisions. The Jamaican constitution has allowed for the modification clause which allows existing law to be modified so as to bring it into conformity with the Constitution. As in the case of DPP v Mollison the possibility of modifying the existing law so as to preserve he substantial effect while removing the inconsistency.
The modification clause however did not protect the existing laws against constitutional challenge and could be overridden which was done in this case as the appeal by the Director of Public Prosecutions was dismissed. With the incorporation of savings law clauses in Commonwealth Caribbean constitutions including Jamaica, there has been a shift from pure natural law beliefs to a mixture of positive law in the very general sense of the word. It is clear that fundamental human rights have been entrenched in Commonwealth Caribbean Constitution.
There is a natural law inclination or connection in Caribbean constitutions, what has changed however is the interpretation of these fundamental rights within the Caribbean context. The issue of Abortion for example in one Interpretatlon vlolates tne rlgnt to IITe out In anotner Instant It may De practlcea to protect the life of the mother or for the right to individuality and freedom of choice. When Juxtaposed with original natural law concepts the right to life would still be violated which contradicts the fundamental right to life but in todays context this may be interpreted differently.
