The Concept of a Caribbean Jurisprudence
There have been two central tenets — truisms perhaps — in the development of Caribbean regional legal institutions and legal education: firstly, that there is already a West Indian law or a common Caribbean law, which is judged as flawed and inadequate, and, secondly, that we need the development of something described as a �Caribbean jurisprudence’ upon which to found more relevant and responsive Caribbean lawmaking.
In conferences held in England in the early 1960s on �English Law in the West Indies,’ Sir Hugh Wooding, the former Chief Justice of Trinidad and Tobago, who was both a pioneer of Caribbean legal education and the region’s premier nationalist judge, described the existing system of law in the West Indies as �hopelessly inadequate to fulfil the requirements of our society and in many respects so unrelated to the verities of our life, economy and customs as to need urgent revision and thorough reform.’[10] In a later speech on regional integration in 1967, Sir Hugh Wooding spoke of an urgency to �cultivate a Caribbean legal philosophy’ that accorded with Caribbean legal realities, while maintaining the ethos of the common law.[11]This preoccupation of jurists in the 1960s, on the eve of the establishment of regional legal education in 1970, with the need for a Caribbean legal philosophy has been sustained into the twenty-first century. Underlying the call are familiar nationalist and regionalist anxieties - can the Caribbean develop the self-confidence to make law consistent with its �identity’ and will lawmakers and the legal profession accept the Caribbean on its own terms?[12] While other aspects of Caribbean life are said to represent idiosyncratic Caribbean culture, law is seen as an anomaly that has not come �home.’[13]
These chapters engage with, and re-present, this problematic of a Caribbean jurisprudence.
They illustrate the durability of the concomitant anxieties, hopes and feelings of community shared by lawyers in the Caribbean that are embedded within it. In the same breath, by pointing to legal interchange across and beyond the region, and the diversity amongst small Caribbean states in their history, political and business culture, and social and economic development, the contributions to this book also unmoor �a Caribbean jurisprudence’ as the foundational issue for Caribbean legal thinkers. By asking what the sources of law in the Caribbean are, how law is made and what law means in a transnational Caribbean, they point us towards a concrete examination of law in the Caribbean that does not over-privilege an autonomous, sovereign and homogeneous Caribbean arena in which we can readily discern �the emotion[s] of the people.’[14]In his contribution to this book, Leighton Jackson suggests that law in the Caribbean be �creolised,’ thus making a positive association between creolization and creativity and resilience.’[15] Though the term is not easily defined, the understanding of creolization that Jackson appeals to, arguably, is that of a framework for the �development of new traditions, aesthetics, and group identities out of combinations of formerly separate peoples and cultures,’ a creative interplay that generates something new and worthwhile out of the loss wrought by colonialism.[16] By choosing this concept of creolization, which is so heavily identified with the Caribbean, Jackson also posits the idea of an indigenous Caribbean legal tradition.
But perhaps Jackson’s creole jurisprudence may be more helpful as cultural concept already at play in the making and understanding of Caribbean law and the Caribbean than as a present goal of Caribbean legal thought. Anthropologist Aisha Khan warns against �construing creolization...as about needing to find something to celebrate and recover some optimism from a typically bleak portrayal.’[17] Crucially, she observes that calls for creolization - and we would add calls for a Caribbean or creole jurisprudence — tend to stay in the realm of the theoretical or abstract.[18] That abstract �Caribbean’ philosophy provides little direction when faced with concrete problems — such as should Caribbean lawmakers adopt the Business Judgment Rule that limits director liability when a director reasonably believed her or his decision was in the best interests of the company,[19] or how should the doctrine of uberrimae fidei, or utmost good faith, in insurance contracts be applied in the Caribbean,[20] or how should Caribbean public law respond to �new blends of public and private power,’[21] or when can a legitimate expectation arise in relation to an unincorporated treaty,[22] or what are the proper limits of implied constitutional norms.[23]
Moreover, if we regard a creole jurisprudence critically, then we will recognize that it is not �neutral’ and that �certain elements of representation...are always chosen, [and] certain others get left out’ of what is deemed Caribbean.[24] Creolization invokes an essentialized Caribbean, with a distinct, limited and readily identifiable logic.[25] Certain images figure more prominently than others as emblematically Caribbean — like children born out of wedlock and common law marriage in working-class black families. This concept can conceal the extent to which the Caribbean is imagined, including through the law, to be a space to which some belong and not others, distinctions and hierarchies which may be determined by race, gender, sexuality, class and origin.[26] For example, only towards the end of the twentieth century do we see what Godfrey Smith describes as a �constitutional space’ starting to emerge for indigenous people in the Caribbean.[27] Indigenous people have been, until recently, largely invisible as citizens of the Caribbean.
Further, when notions of unique Caribbeanness are wedded with the abstract nature of legal discourse, injustice and inequality are further masked and disempowerment entrenched.[28] Sir Hugh Wooding, for example, in 1967 identified the need for Caribbean law to recognize the ubiquity of heterosexual couples living together without the benefit of marriage but in �the true spirit of a husband-and-wife relationship.’[29] A Caribbean legal philosophy would insist, he said, that the common law husband be treated like a de jure husband, entitled to some exculpation if he �caught his woman in an act of quasi-adultery,' the paradigmatic act of provocation at common law.[30] But the call for a Caribbean jurisprudence here, Tracy Robinson argues, merely obscures the gendered assumptions that underlie the common law rule of provocation — that men have proprietary rights in women’s bodies and sexuality - and it betrays the way in which privilege, in the name of the developing Caribbean nation, is appropriated for certain subjects and not others.[31]
For such reasons, the project of defining and identifying a Caribbean jurisprudence, as a search for an emancipatory truth and a distinct and separate way of seeing the world, may not be as worthwhile an undertaking as has been assumed for decades. Still, we should not abandon it entirely, but instead view it as a form of cultural discourse or legal consciousness. When structured distinctions and hierarchies are taken into account, law in the Caribbean emerges as having different meanings for different people, not only in the past, but as a feature of the present.[32] Jackson’s interest in a legal realist analysis of Caribbean law is helpful here, and even more so what Sally Merry terms a �new legal realism.’[33] The latter continues the focus on the operation of law in everyday life but with a new interest in tracking �the flows of people, ideas, laws, and institutions across national boundaries,’ recognising the importance of �local cultural understandings of law’ and foregrounding �interactions in situations of unequal power.’[34]
Rose-Marie Antoine’s detailed inquiry into how judges balance the public/private divide in employment, and how they should do so is very much in this vein.
Courts and lawmakers today have to contend with institutional arrangements designed for very different political, social and economic times. Caribbean constitutions set up mechanisms for tempering the plenitude of governmental power, including an elaborate scheme, through service commissions, for regulating the government’s status as the single most important and the most powerful employer. But there now is a global trend towards reducing the size of government by privatizing some of the functions carried out by the state. Public sector reform designed to improve efficiency and accountability is a corollary to privatization in the Caribbean. Many of the privatization initiatives do not transfer resources and responsibilities entirely to the private domain, but preserve an important role for the state, creating what some now call the �third sector.’[35] This is characterized by centralization of policymaking and strategy and a decentralization of operational management,[36] or a hybrid of �public direction and private enterprise.’[37] Antoine points out a challenge faced by Caribbean courts in balancing public and private in this new terrain, namely, whether to extend public law protection and judicial review to contracts of employment or instead to focus on private law remedies. She prefers interventionist approaches by Caribbean courts to protect persons who are in effect employees of the state and vulnerable to the exercise of the tremendous state power.2.