Caribbean Common Law System

Introduction

The mixed jurisdictions in both traditional and nontraditional forms: The Commonwealth Caribbean jurisdictions of Guyana, Trinidad, and Saint Lucia. In the three traditional mixes between civil and common law resulted from British military successes. Therefore, all three are subjected to similar legal pressures to assimilate: substantive changes to large areas of law; largely inaccessible civil law sources, written in languages which are few were able to read; adoption of English as the language of the laws, the government, and the courts; administration of justice following common law procedures by common-law trained lawyers and judges who were by-and-large unfamiliar with and unsympathetic to the civil law traditions they were administering; and so on (Glenn, 2008).

Judicial Law Making: Common Law

In common law, the courts are given the main task in creating the law. Decisions of the courts are an important part of the law and explaining how the case law system works makes the specific reference as to how law is made and is entirely concerns with rights and policy. The judicial law making is a common and generally accepted role in both legal systems. Judicial decisions play a creative part in the process of evolution of the law. But it seems that when major policy issues are involved, courts in the civil law system tend to observe a larger-degree of self-restraint in judicial law making than their counterparts in the common law system.

Concerning the application of general principles of law and of the doctrine of stare decisis made influence the appropriateness of judicial law making by the Caribbean Court. Additional influencing factor is the reluctance of courts in the civil law, common law and international law systems to act as legislatures.

The Meaning of Precedent

"The doctrine of judicial precedent constitutes an unnecessary restriction on the development of the law"

In common law, the “precedent” can be used in two senses. First – Judicial precedent is convenient shorthand for the obligation of the court to follow the decision or ruling of a court higher than it in the hierarchy of a legal system, unless it can distinguish the earlier case. Second- Superior court must follow its own earlier decision and must not depart from it unless it can distinguish the earlier case. This aspect of precedent is sometimes referred to as “stare decisis” (Nelson, 2006).

This two considerations scope the application of the doctrine and the extent to which it constraints judicial innovativeness in establishing and declaring applicable norms. And the latter consideration is a reference to the Caribbean Court’s appellate jurisdiction, but the Statement of the House of Lords regards the future application of the doctrine is a clear illustration of a general tendency in the common law system to structurally soften its rigid application (Lim A Po, 2003).

Stare Decisis

“That too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law” – The House of Lords.

The impact of decisions of the Caribbean Court has been reinforced by adoption of the doctrine of stare decisis. The binding force of precedents is considered to be one of the main distinct features of the common law system (Lim A Po, 2003).

Analysis

The introduction of the court in the jurisdiction of the court is a remarkable fact in common law and its absence in the civil law and international law systems (Lim A Po, 2003). In the final analysis, the doctrine of stare decisis is important in constitutional cases. Precedent may disregard if there is special jurisdiction. The special situations indicate that there mere wrongness of an earlier decision on the sole ground that it was wrong. The doctrine of precedent is vital to final appellate courts. Precedent provides the assurance of continuity, consistency, predictability and fairness in a legal system. However, the precedent must flexible to overrule the decisions or not (Nelson, 2006). It should be non-controversial that the responsibility of the court is foremost to seek and rationalize decisions within the existing body of regulations (Lim A Po, 2003).

References:

Glenn, J., 2008. Mixed Jurisdictions in the Commonwealth Caribbean: Mixing , Unmixing, Remixing. Electronic Journal of Comparative Law, Vol. 12 No. 1. [Online] Available at: http://www.ejcl.org/121/art121-10.pdf. [Accessed 12 Nov 2009].

Lim A Po, H., 2003. “Bridging the Divide” The Interface between the Civil Law System and the Common Law System with specific reference to the role of the Caribbean Court of Justice. [Online] Available at: http://www.caribbeancourtofjustice.org/papersandarticles/Bridging%20the%20Divide.pdf. [Accessed 12 Nov 2009].

Nelson, R., (Jud.) 2006. New Final Appellate Courts in the Commonwealth and Doctrine of Precedent. Caribbean Court of Justice. [Online] Available at: http://www.caribbeancourtofjustice.org/. [Accessed 12 Nov 2009].