Fi We Law: The Emergence of Caribbean Jurisprudence and the Doctrine of Precedent

• Author: Leighton M. Jackson
• Pages: 3-32

Fi We Law: The Emergence of

Caribbean Jurisprudence and the

Doctrine of Precedent

Leighton M. Jackson

1. Introduction

When speaking of ‘Commonwealth Caribbean jurisprudence,’ one is



on a conceptual level. The laws in our states – constitutional, statutory

and judge-made – are for the most part, the rules originally devised for

and meant to govern societies other than our own. This does not deny the



  



reverence. Even in light of the modern day trumpeting of ‘globalisation’

the texture of Caribbean life – cultural, social, economic and political –



and continue to come.

           

so long after the institution of independent and sovereign legislatures,

native judges and lawyers, local legal education and world-acclaimed

local university scholarship in the social sciences. Keith Patchett, then

         

        

of Law, University of the West Indies (UWI), promised in 1963 that we

would be well on our way to creating a Caribbean jurisprudence when



textbooks and journals, current and full indices and digests of legislation,

law reporting with proper indexing and digests, a systematic approach to

law reform, especially in the matters of ‘lawyers law,’ critical commentary

on judicial decisions as a salutary check upon judicial scholarship, a West

Indian law school which teaches the law in use in the West Indies, and

not just in England, and the special problems facing the West Indian

lawyer, and, as an important unifying factor, a court of appeal with an

all-embracing jurisdiction.1 Much of these have been attained, perhaps not

1. K. Patchett, ‘English Law in the West Indies: A Conference Report’ (1963) 12 ICLQ 922, 962–66.

4

Transitions in Caribbean Law

perfectly but certainly, substantially, yet there has not been a satisfying

movement in the direction of a Caribbean jurisprudence.

       

for the emergence of laws, judicial decision-making and an institutional



to the realities of Caribbean societies? The answer is the lack of

commitment of our rulers – legislators, judges, lawyers and legal

educators – to the kinds of discourse, the kinds of argumentation,

to justify the meanings of our legal rules based on our existential

reality.2 In short, there has not been a creolization of the inherited laws

and institutions, as has happened in much else of Caribbean life and

institutions. The role of the types of legal argumentation or discourse

in the creolization of law in the Caribbean is what this work is about. I

advocate an approach that restricts the formalist application of case law

precedent; one that promotes a greater engagement of the other modes of

legal argumentation from a realist perspective. This will facilitate a more

speedy evolution of a legal system to one that is not a mere subsidiary of

a foreign nation’s jurisprudence, but a self-conscious, self-evolving, self-

evaluating dialogue for the emergence of i we law.3

2. English Law in the Caribbean or

Caribbean Law in English?

Dorcas Elizabeth White, one of the intellectual giants of

‘Commonwealth Caribbean Jurisprudence,’ not long after her graduation

from the new Faculty of Law of the University of the West Indies in 1974

and joining the Faculty as a lecturer, wrote two seminal unpublished

papers in which she sought to contain her seethe at Patchett’s notion

that there wasn’t any such thing as ‘West Indian law.’4 She presented a



2. In speaking of the advancements in the arts, Rex Nettleford observed that ‘To the one dimensional

mind this spells schizophrenia, but to the Caribbean person living in his/her existential crossroads

of existence, it is a source for creative action.’ R. Nettleford Inward Stretch, Outward Reach: A Voice

from the Caribbean (Macmillan Caribbean, London 1993) 9. However, we have not expressed our

existential reality in our jurisprudence because, according to Simeon McIntosh, of the commitment

of our ‘discourse’ to the British political idiom. S. McIntosh, ‘West Indian Constitutional Discourse:

A Poetics of Reconstruction’ (1993) 1 Carib L R 12, 17.

3. Understanding Jamaican

Patois: An Introduction to Afro-Jamaican Grammar (Kingston Publishers, Kingston 1991) 18.

4.       

          

Faculty of Law Library, nd), The term ‘Commonwealth Caribbean’ seems now preferred to the

term ‘West Indian’ especially in relation to law, as West Indies speaks of Columbus’s geographical

mistake as well as the fact that Commonwealth Caribbean indicates not only geography but is

limited to those states that received English law and legal system.