Continuity and Discontinuity of Law: A Reply to John Finnis

• Author: Simeon C.R. McIntosh
• Profession: Professor of Jurisprudence and Dean, Faculty of Law, University of the West Indies at Cave Hill, Barbados
• Pages: 47-104

Continuity and Discontinuity of Law | 47

CONTINUITY AND DISCONTINUITY OF LAW:

A REPLY TO JOHN FINNIS

2

In 1974, Grenada gained its independence from Great Britain

and a democratic system of government was established under the

newly adopted ‘Independence Constitution.’1 In March 1979, however,

the constitutionally elected government was overthrown in a coup

d’état and was supplanted by ‘The People’s Revolutionary

Government.’ The new government suspended the official

Constitution, substituting in its place a series of Proclamations ‘until

such time as a new constitution is drafted.’2 It also disbanded the

Grenada Supreme Court and replaced it with a new High Court and

Court of Appeal for Grenada. The Revolutionary Government remained

in power until October 1983, when, as a result of an internal palace

coup, the Prime Minister and several other ministers were killed.

Shortly thereafter, American armed forces intervened and the leaders

of the palace coup were arrested, enabling the Governor General of

Grenada to assume power. In early 1984, the Independence

Constitution was reinstated, but without those provisions pertaining

to the court system. The Governor General issued a Proclamation

that effectively retained the court system established by the People’s

Revolutionary Government.3

In due course, the arrested leaders of the palace coup were

charged with the murder of the Prime Minister and other ministers of

the People’s Revolutionary Government, and were subsequently tried

48 | Kelsen in the Grenada Court

in the High Court of Grenada.4 The accused challenged the

constitutionality of the Court, claiming that it lacked jurisdiction since

it had been established by the unconstitutional, revolutionary

government, and that the Governor General lacked any authority

under the Independence Constitution to retain an illegal and

unconstitutional court.

The motion was denied. The accused appealed the High Court’s

ruling to the Grenada Court of Appeal. The Court of Appeal concluded

that the People’s Revolutionary Government was indeed an illegal

government and the courts established by that government were

unconstitutional.5 The Court also concluded that the Governor General

lacked the legislative authority under the Independence Constitution

to retain the courts of the Revolutionary Government. However, the

Court reasoned that the Governor General acted in the best interest

of Grenada at a time of crisis and, therefore, held his decision to

retain the courts of the People’s Revolutionary Government

temporarily valid under the doctrine of state necessity.6 Therefore,

the High Court had jurisdiction to try the accused.

In the first essay addressing the validity of the Grenada court

system and the applicability of the doctrine of state necessity, I

questioned the soundness of the Court of Appeal’s reasoning.7 I

argued that the defendants’ jurisdictional challenge went beyond the

more limited question of the competence of the High Court and, in

effect, questioned the validity of the two political authorities – the

People’s Revolutionary Government and the Governor General –

responsible for the court’s existence. Since the defendants’ motion

questioned the establishment and validity of political authority in a

territory, it was therefore not a legal question for judicial determination

– particularly for a court created by that very authority. My argument

therefore held that the Court of Appeal’s decision presupposed the

constitutional continuity of the State and legal order of Grenada

throughout the period of revolutionary rule and that the People’s

Revolutionary Government and the Governor General remained

subject to the authority of the Independence Constitution throughout

Continuity and Discontinuity of Law | 49

that period. On this reasoning, the validity of the People’s

Revolutionary Government and the Governor General was a legal

question susceptible to judicial resolution. To the contrary, I argued

that the validity of a revolutionary regime is a meta-legal question

that must be resolved in terms of legal and political theory; that is,

the validity of a revolutionary regime only makes sense on the

supposition of discontinuity of law.8 Hence, a revolutionary regime

that seizes power in a territory by means of a coup d’état stands in

open defiance of the existing constitution and, as such, remains

forever invalid under that constitution. The revolutionary regime’s

validity is thus determined by its success in wresting ultimate political

authority in the territory. However, the more important question

focuses on the political legitimacy of the new regime – the justification

of why the people of the territory may wish to give allegiance to that

regime.9

I recount all this only as a back-drop against which to discuss the

problem of continuity and discontinuity of law. This essay is not

specifically about Grenada. Rather, it seeks to advance a charitable

reading of the theory of discontinuity of law as propounded by the

late Professor Hans Kelsen.10 But I am compelled to discuss continuity

and discontinuity conjointly, for, as dialectical terms, each is

incomprehensible independent of the other.

The theory of discontinuity asks when, and under what

circumstances, does one legal system cease to exist and a new one

is created in its stead?11 Otherwise stated, what events might be

considered disruptive of the continuous existence of a legal system,

bring about its disappearance and, perhaps, result in the creation of

a new system in its place?12 The answer is suggested by Professor

Kelsen’s claim that the ‘State and its legal order remain the same

only as long as the constitution is in tact or changed according to its

own provisions.’13 This implies that revolution or coup d’état would

be an instance of ‘illegal’ change, effecting a disruption in the

continuous existence of a legal system.14