Introduction
When speaking of �Commonwealth Caribbean jurisprudence,’ one is faced with the difficulty that the term may be without meaningful content 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 comfortable but deceptive feeling of ownership — like wearing the ill-fitting garment of a loved one; you have a feeling of belonging in it, its ill-fit and your refusal to make alterations is proof of your commitment or sacrificial reverence. Even in light of the modern day trumpeting of �globalisation’ the texture of Caribbean life — cultural, social, economic and political — remains significantly different from the place from which these laws come and continue to come.The question is why this lag between law and society has remained 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 an Assistant Lecturer at the University of Sheffield, and who, a decade later, became the first Professor and Dean of the newly created Faculty 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 certain prerequisite institutions were in place: secondary sources, such as 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.[109] Much of these have been attained, perhaps not perfectly but certainly, substantially, yet there has not been a satisfying movement in the direction of a Caribbean jurisprudence.
The question therefore remains, what has stultified the movement for the emergence of laws, judicial decision-making and an institutional framework of law, which reflects and responds readily and meaningfully 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.[110] 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, selfÂevaluating dialogue for the emergence of fi we law.[111]2.