Monday, March 13, 2006

Metaphysical laws

Can the law have been other than it was understood to have been at the time?

If it can, are we currently operating under a misunderstanding of the law?

Are there points of law that we are mistakenly taking for granted?

If we all think that the law says one thing, can we be wrong?

Can some future court say we were wrong, and that the law said something else?

The first of these questions concerned the Privy Council last week in Bowe v R (Bahamas) [2006] UKPC 9 (8 March 2006). The issue involved detailed analysis of legislation, but in essence the question came down to whether the death penalty was mandatory in the Bahamas in 1973, notwithstanding that cases had been conducted on the basis that it was.

The Privy Council answered the conundrum this way (para 42):

"… it took some time for the legal effect of entrenched human rights guarantees to be appreciated, not because the meaning of the rights changed but because the jurisprudence on human rights and constitutional adjudication was unfamiliar and, by some courts, resisted."

Further, it would be wrong to answer the question by now trying to assess what chance the argument would have had of being accepted in 1973.


"The task is to ascertain what the law, correctly understood, was at the relevant time, unaffected by later legal developments, since that is plainly the law which should have been declared had the challenge been presented then." (ibid)


"It matters little what lawyers and judges might have thought in their own minds: in the context of a codified Constitution, what matters is what the Constitution says and what it has been interpreted to mean. In 1973 there was no good authority contrary to the appellants' argument, and much to support it. In the final resort, the most important consideration is that those who are entitled to the protection of human rights guarantees should enjoy that protection. The appellants should not be denied such protection because, a quarter century before they were condemned to death, the law was not fully understood." (ibid)

At this point, it seems to be only a subsidiary consideration that there was no authority to the contrary as at 1973, as the governing matter ("the final resort") is that those who are entitled to human rights protection should be entitled to enjoy that protection. Question-begging, of course, as the issue was whether the people were (not "are") entitled to that protection.

Not to worry, for in Bowe the death sentences were quashed because the law as at 1973 was that the sentence was discretionary, not mandatory.

This interpretation was therefore carried through to the present pursuant to the legislative provisions. The cases of the two appellants were remitted for consideration of the appropriate penalty.

It seems, consequently, that we are governed by laws that we have not yet discovered, and may not be discovered until we are all dead.

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