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Faculty of Law of the University of the West Indies in 1974 and joining the Faculty as a lecturer, wrote two seminal unpublished papers in which she sought to contain her seethe at Patchett’s notion that there wasn’t any such thing as �West Indian law.’[112] She presented a two-pronged attack.
First, at the continuing efficacy of the Privy Council dictum in Robins v National Trust Co[113] [114] which proclaimed the indivisibility of �English law,’ its binding nature on �colonial’ courts and the supremacy of the House of Lords as the authority to settle what this �English law’ is. Second, and even more intensely, she seethed at the way the local Commonwealth Caribbean courts literally followed this commandment, necessarily viewing themselves as �colonial courts.’ While the objective of White’s essays was to set the legal record straight,6 she made as her central point the fact that acceptance of this heretical doctrine, together with the existence of the Privy Council as the highest court of appeal for our jurisdictions, meant that �the courts of the Commonwealth Caribbean have been hedged in’ and that this foreclose[d] any “opportunity Io... contribute to” the development of any “common pool of case law”’ in the way in which other ex-colonial common law jurisdictions such as Australia, Canada and the United States did.[115]As a first step, White rejected the indivisibility of English law and asserted that the concept of Jamaican law or Barbadian or Trinidad and Tobagan or Guyanese law is not a myth. She said that �When law once derived from the traditional English source has been received into a territory that law without losing its textual similarity to English law in force in England assumes a new identity and becomes the law of the “receiving” territory.’[116] White was clear that there is no confusion between the textual similarity with the source of the rules and the identity of those rules; �its identity is inextricably bound up with the “receiving” territory.’[117] She acknowledged that the law in force in the Caribbean was derived �almost in toto from a foreign source’ and might not be very relevant to the region’s needs, but she said,
The fact is: West Indian law may be bad law, it may be irrelevant law, unsuitable to the peculiar circumstances of the region; It may be imposed law — that is, the law directed to the colonies by the British Parliament; it may be all that or even worse but it is still West Indian law.[118]
�This,’ White says, �is the only starting point.’[119] But only the starting point.
Creolization of English Law
The question then is where have we gone from this starting point; or more pertinently, where do we go? Put another way: How do we make this law that is ours relevant and suitable? Patchett in his ironically titled article, �English Law in the West Indies: A Conference Report,’[120] concluded that, �At the present time it is premature to speak of “West Indian” law.’[121] Though Patchett was a lifelong exponent of the need to make the law fit the peculiar needs of the society in which it is meant to govern, his approach was more pedantic than robust, calling for the establishment of a host of institutions and �mechanics’ before this can take place, rather than resorting to resistance and rebellion and the use of our own creative ingenuity as lawyers and judges.[122] While the institutions mentioned by Patchett are important, one can believe that even then we will only have a Caribbean jurisprudence when we have the cultural self-confidence to own up to the fact that we will have as much ownership of law as we make our own. The fact is that most of the institutions that Patchett advocated are now in place but the journey must now be charted. From �the starting point,’ moving on has to be based on our methods of argumentation, which White caustically refers to as �the dreaded opportunity to think.’[123] Caribbean realism must inform the interpretation and application of the rules — the creolization of English law.
The push by the first cohort of graduates against the immorality of a jurisprudence looking outwards for its values is in line with the views of the early social scientists produced by the UWI. Edward Brathwaite and others like him clearly saw the indigenous creations of these societies. This he describes as creolization, the summary of the �cultural action— material, psychological and spiritual—based upon the stimulus/response of individuals within the society to their environment and—as white/ black, culturally discrete groups—to each other’ as the integral factor for the creation of an autonomous society.’[124]
Law is one of the last remaining institutions in the Caribbean that has resisted local residence — the process of creolization.
The resistance is accomplished mainly by the obsequious adoption of English legislation and the overemphasis on English precedent and tradition as the preferred methodology of argumentation utilized by Caribbean lawyers and judges. This insulates the legal system from the local reality while embracing traditions and precedents created elsewhere. We have not begun to start; the start is to recognize that we have what we can call our own and thereby mobilize the outgrowth through the use of the creative intellect.White, writing in 1976 refused to discuss judicial law making in the Caribbean �for the simple reason that there has been none because the West Indian judiciary seemed singularly lacking in creative initiative mainly because they have taken the judicial Committee’s dictum [that House of Lords’ precedents dictate the law in the Caribbean] too literally.’[125] More than 30 years later, we have not moved much further because the methods by which Caribbean lawyers and judges resolve legal issues place too much emphasis on the doctrine of precedent in its formal sense, at the expense of discourse that is �real.’ It succumbs too credulously to what Professor Edward H. Levi refers to as �the pretense’ that assumes the law is a system of known rules applied by a judge.[126] Thus we go searching relentlessly for that case or that dictum that is on all fours with the facts presented for resolution and limit the usefulness of even the doctrine of precedent by looking to facts rather than the principles for differences or similarities.
The failure is not to be laid solely at the door of the judges and the legislators, but also in the halls of the legal academy, the academics and the lawyers it has spawned, for the lack of searching theoretical and philosophical discourse and critique. This has its roots in our legal education and its pedagogy that emphasize the principle of precedent, even in statute-based subjects, through the memorization, or at best, familiarization with as many cases as possible per topic, with the hope that every conceivable nuance of fact may be uncovered not through abstraction but by crude analogy.
Also, by failing to stress the skill of handling primary sources of law, authoritative texts and journal articles that critically guide the approach to legal analysis over pre-digestion of these materials that produce second-hand knowledge of the law, the student is unaware of and incapacitated to other structures of legal argumentation. Their instinct, like the argument of counsel and the judge, becomes a predictable recitation of case after case, without any incisive and critical analysis of principle or evaluation of outcome.The evolution of law in other common law states show that the doctrine of precedent by itself is a slow and unproductive source for the transformation of law. Law was not all about precedents, but in truth about �the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men’ and even more that �the law embodies the story of a nation’s development through many centuries and cannot be dealt with as if it contained only axioms and corollaries of a book of mathematics.’[127] Like all societies, the Caribbean has a story to tell through its laws; a story yet to be told.
However, notwithstanding that the establishment of legal education in the Caribbean was to be based on the ideals of legal realism and sociological jurisprudence, the praxis of law in the region maintains its foundations in the formalist traditions.[128] Our preoccupation with a formal version of the doctrine of precedent is not only the product of a postcolonial psychosis, which, despite independence, has not seen the kind of self-confidence in the legal culture that is exhibited in indigenous areas of Caribbean life, such as in the art, dance, literature and music, but it is re-enforced by our system of legal education. A broader use of the different methods of argument that is part of the accepted common law legal culture is the only way to manumit our legal system from its colonial moorings and into the sea of dialogue about ourselves.
Patchett reminds us that Caribbean courts �have been empowered to take into account the circumstances which obtain in the West Indies and in their decisions they could well contribute to the development of a differently conceived democratic society.’[129] However, he quite rightly observes that this is a potential development that depends on the guts of the persons occupying judicial office �as well as their understanding of the role in which they have been cast.’[130]This is an argument for a consciousness-of-self approach to legal reasoning and it finds useful analogy with the experience of the United States over the self-same terrain, which has the great advantage of speaking out aloud and critically about what their judges do in legal reasoning. Finally, it is urged that we must make a transformation in the curriculum of the Faculty of Law that will be more conducive to producing the kind of graduate fit for the task.
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