Commonwealth Caribbean Law and Legal Systems

While it seemed clear that the doctrine of precedent does not reflect the social values and needs of the society based on the absence of the interpretation and the application of legal norms, Antoine pointed out that the doctrine of precedent has both the advantages and disadvantages in the Caribbean legal system. The doctrine of the precedent according to the statement of Lord Hoffman has become the backbone of the stability of the Caribbean legal system.

Regarding the actions of the Privy Council overruling and reinstituting the precedent Hoffman stated, “If the board feels able to depart from a previous position to come out differently, the rule of law itself will be damaged and there will be no stability in the administration of justice in the Caribbean” (as cited by Antoine, p. 121). The disadvantages are obviously the fact reality that it does not reflect the social values and the need of the society. Thus, Antoine suggested that the doctrine of the precedent “must be flexible enough to accommodate changes in society and the needs of the legal system” (p.

121). In this case, it appears that despite the seemingly obvious inability of the precedent to reflect the social values and the need of the society, the application of the doctrine of precedent remains central in the Caribbean legal system. As mentioned earlier, in the doctrine of the precedent lower court are bound to submit to uphold the implementation of the precedent by the higher courts as the operation of the precedent depends on a system of hierarchy of courts.

The doctrine of the precedent strictly does not admit any information or facts no matter how relevant they are. Antoine stressed that not every element or aspect of a decision is binding on a judge in a particular case but only the particular principle, rule or ruling of law contained in the decision. This element of the decision according to Antoine is called the ratio decidendi. Antoine further stressed that not every statement of law or legal principle contained within a decision is binding in a particular case.

She defined ratio decidendi as “the principle or proposition of law stated by the judge to be applicable to resolving the precise legal issue before the court” (Antoine, p. 122). However, no matter how excellent is the ratio decidendi this does not apply to the doctrine of the precedent rather, to be able to sustain its binding doctrine, Antoine points out that it is essential to isolate the ratio decidendi. (p. 122). This suggests that despite of the disadvantages of the doctrine of the precedent in the Caribbean community, it will remain part of the Caribbean legal system.

That everything that might impair its implementation should be isolated in favor of its implementation. Apparently, since the principles of law are embedded in decided cases, the doctrine of the precedent is dependent on an efficient system of recording the law for its sustainability, accessibility, and viability. Therefore the lack of an adequate system of law reporting “is an acute problem in the jurisdiction of the Commonwealth Caribbean, which are under-resourced with respect to this aspect of the administration of justice” (Antoine, p. 127).

Despite that this problem can be resolved by the availability of modern technology such as the websites, it remains a severe defect in the legal system as it could lead to unsatisfactory exposition of the legal principles of the Commonwealth Caribbean law. This problem also reveals that the doctrine of precedent not only deprive the Caribbean community of the basic benefits of the law, but it also do not reflect the real social values and need of the community. The application of the doctrine of precedent in the Caribbean legal system means the handing down of an unexplained verdict derived from a similar case.

Wilkinson aptly stated, “Theoretically, the doctrine of the precedent must be strictly applied, but in practice the court often find ways around it” (p. 32). While this may be good at some point, ultimately however, determining the identity and the similarity of two cases can only be made precisely by investigating and knowing the facts and reasoning of the cases. In the application of the doctrine of precedent, the principle of stare decisis requires that the previous decision be followed in ensuing cases except when it is overruled or distinguished.

Thus, obviously, the doctrine of precedent poses legal weaknesses that might even affect the justice of the case that it sought to resolve. Another problem of the doctrine of the doctrine of the president was cited by Neil Dusbury (2008). Duxbury stated, “… the notion of the binding precedent does not capture any of these qualities, it offers no insight into how the capacity of earlier decisions to constrain today’s judges is different from that of statute law to do same” (p. 59) In general, the problem with the doctrine of the precedent is that it is a law because the court say so.

In other words, it is to be followed by lower courts and even by courts of equal hierarchy even if the decisions of the previous cases were erroneously decided. The consequence is that a similar case will suffer the same fate with out the benefit of exploring the real truth through investigation and interpretations of relevant evidences and facts. In view of all these however, the purpose of the application of the doctrine of precedent is to come up with a more practical, less expensive litigation of a particular case.

The doctrine of the precedent has become integral and an important element of the Caribbean legal system so long that the decisions that have been decided by the court to a particular case are right. Nevertheless, an internet article entitled Precedent and Analogy in Legal Reasoning published 2006, presented an analysis of the doctrine of the precedent which indentified a flaw in the arguments in the application of the doctrine of the precedent. This flaw lies in the possibility of the court to imposed wrong judgment on a particular case that will serve as precedent for the future similar cases.

The article calls the flaw as the doctrine of the precedent redundant. By simply looking at the obvious implication of the doctrine of the precedent, one can easily grasp the actuality that precedent does not reflect the social values and needs of the Caribbean community. This is so because the cases where this doctrine were applied never had the chance to explore the pertinent facts and evidences that may be relevant to the merits of the case. Conclusion

The doctrine of the precedent had been used in most countries particularly England, Europe, and America and even in most Asian countries where the doctrine was used efficiently and effectively in making court decision. The difference however is that in those countries, the precedent was applied as reference or guide towards formulating decisions. In the Caribbean community however, the doctrine of stare decisis requires the courts to fully observe and follow the precedent which effectively denied the Caribbean Community of the legal justice system that reflect their social values and needs.

Since the doctrine of the precedent is integral in the Caribbean Legal Justice, the suggestion to align the doctrine of the precedent in the context of the Caribbean community will certainly be beneficial to the Caribbean Community in terms of the equal opportunity for the protection of the law through interpretation of the legal norms in the application and used of evidences and facts that maybe helpful in determining the merits of the case.

Reference Books Antoine, R. B. (2008) Commonwealth Caribbean Law and Legal Systems UK: Routlege-Cavendish Publishing

Bernardo, G. D. (1998) Normative Structures of the Social World The Netherlands: Rodopi Duxbury, N. (2008) The Nature and Authority of Precedent UK: Cambridge University Press Fiadjoe, A. (1999) Commonwealth Caribbean Public Law Great Britain: Routledge Franklyn, D. (2005) We Want Justice USA: Ian Randle Publishers Pollard, D. E. (2004) The Caribbean Court of Justice Jamaica: Ian Randle Publishers Popple, J. (2006) A Pragmatic Legal Expert System England: Dartmouth Publishing Company Limited Wilkinson, D. (2002) Environment and Law London: Routledge