“The study of law and legal systems is a diverse and intriguing subject which cannot be divorced from its proper social context” (Antoine, R. B. 2008, p. 10). Antoine stated that in the Commonwealth Caribbean, the law and legal systems were born “out of colonial experience” (p. 10). For Antoine, the notion of a commonwealth betrays the historical fact of imperialism and gave the region certain identity, which still survives even today.
The Commonwealth Caribbean according to Rose-Marie Belle Antoine is that part of the globe known as the West Indies (p. 10). It encompasses the independent and the dependent democratic states but currently, the dependent states are less in number than the independent states. Antoine noted that the independent countries of the region belong to a socio-economic grouping – a loose political community labeled the Caribbean Community (CARICOM).
While the Caribbean Communities are independent, Antoine noted that the reality of colonialism is still evident in the study of the Caribbean legal system. And despite of the attempts to fashion new identities since gaining independence, their legal expressions remains largely British” (Antoine, p. 10).
In the Caribbean Communities, the most important source of law is the common law or the case law. This law as explained by Antoine describes the doctrine of precedent as “a legal principles derived from examining the judgments of cases where there are no applicable statutes” (p. 117). However, this common law is both a legal source and an historical source because its existence according to Antoine is directly “linked to the experience of colonization in the region and the consequence of the reception and transplantation of law from England” (p. 117). Apparently, the common law reflects the particular value and the need of the society.
But the value that has been reflected here is the social condition by which this law has been formulated and the society’s need is the need of a contextual legal system that will confront the existing social realities. But with the application of the doctrine of precedent the Caribbean community finds that the Caribbean legal justice does not reflect the social value and the need of the society because its principle is not based on applying and interpreting legal norms of the Caribbean community and the court judgment is simply based on the analogy of reason and the previous court decision.
The concept of the doctrine of the precedent
Central to the concept of common law as a legal source is the Doctrine of the Precedent which was derived from a Latin adage stare decisis et non quieta movere or stare decisis for short, which means standing by decisions and not disturbing settled points, or simply translated as “let the decision stand” (Antoine, p. 118). Under the doctrine of judicial precedent, where there are no “appreciable statutes on a particular issue, the judge must look to the case law, that is, cases decided previously on the said issue, to find relevant law upon which to base the decision” (p. 118). In this case, the judge decision is based on reason by analogy and the case where the decision was based is called the doctrine of the precedent.
James Popple (1996) cited that the principle of stare decisis holds that courts should apply the doctrine of precedent. Citing the works of Morris et al. Popple pointed out that the general rules of the doctrine of the precedent can be summarized as follows:
- Each court is bound by decisions of courts higher in its hierarchy
- a decision of a court in a different hierarchy may be of considerable weight, but will not be binding;
- only the ratio decidendi of a case is binding;
- any relevant decisions, although may be considered and followed, and
- precedents are not necessarily abrogated by lapse of time. (Popple, p. 5).
Perhaps the simplest understanding of the doctrine of precedent is that it is a law made by judges rather than by legislation through the determination of legal cases. These cases according to David Wilkinson (2002) “constitute rules that must be followed by all courts of equal or lower standing in the hierarchy of courts” (p. 31)
The application of the doctrine of the precedent
From the way it looks, there seemed to have no problem regarding the application of the doctrine of the precedent in so far that the case in point bears similar circumstances. Besides, the doctrine of the precedent had been utilized in various countries particularly in Europe and America.
However, the Caribbean Court of Justice which implements the doctrine of precedent represents a legal system that does not reflect the particular values and needs of the Caribbean communities in the sense that under the present legal system of the Caribbean community, wherever a court or tribunal considers a decision on a question pertaining to the interpretation or the application of revised treaty, referral requirement is automatic and the court or the tribunal is oblige under article 214 of the Revised Treaty of Chaguaramas to refer the case to Caribbean Court of Justice (CCJ).
The implication of this is that CCJ will formulate decision on the case which maybe based on the previous decision or the doctrine of the precedent, to be respected and followed by the tribunal or the court as under the principle of stare decisis or the doctrine of the precedent, within the judicial system, all courts are bound by decisions made on the same matter by superior courts within that self-same system.
The irony is that according to Duke E. Pollard (2004) the system regarding the imposition by the Caribbean Court of Justice of the doctrine of judicial precedent appears to have “some room for conflicting judgments of national courts or tribunals on the interpretation and the application of the revised treaty” (p. 96). Delano Franklyn (2005) pointed out that the present form of CCJ “threatens to undermine fundamental human rights of Caribbean nationals” (p. 277).
The inability of the doctrine of the Precedent to the social values and need of the Caribbean society
The debate on the issue of the scope of responsibility of CCJ implied that the Caribbean legal system does not reflect the social values and need of the society as according to those who are pushing for the CCJ as a trade court, the CCJ does not address matters of justice. Pollard stressed that the doctrine of the judicial precedent should serve as a guide to lead towards justice and truth and it should not to be interpreted as “a potent force for petrifaction of law.
The application of the doctrine of precedent in the Caribbean legal system however, has made some obvious glitch. H. R. Lim A Po in an address to a Symposium on the Caribbean Commonwealth entitled “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 pointed out that the application of the doctrine of the precedent in the common law courts made the court decide not only arguments, but are also expected to provide precedence as to how similar case could be settled in the future.
The problem with this application according to H. R. Lim A Po is that the rule of binding precedents is applied also in the interpretation of statutes which may not be on the same legal justification with the civil law courts. In this case, the application of the doctrine of the precedents might not reflect the social value and need of the Caribbean Community as most of the statutes were not formulated in the context of the Caribbean Community but in the context of the English law.
Thus, according to Antoine, despite of the attempts to fashion new identities since they became independent, the legal expression of the Caribbean community still ‘remains largely British.’ The doctrine of precedent in its basic intent inhibits change. While the law should serve as a mirror of the society, which means that the law must change and that it should always be contextual to reflect the needs of the changing times and changing conditions of the society, the doctrine of the precedent restrain this change.
According to Albert K. Fiadjoe (1999), society is not static and “social conditions demand change.” (p. 200). Fiadjoe pointed out that the economic conditions in young Caribbean Commonwealth countries “require a fresh look at the laws which govern trade and commerce.” (p. 200).
The Caribbean legal system functions through the Caribbean Court of justice which has two forms of jurisdiction: appellate and original jurisdiction. Lim A Po stated that the Caribbean Court serves as international tribunal in the interpretation and application of the treaty of Chaguaramas by applying rules of international law in exercising original jurisdiction. In this system, the court exercised exclusive jurisdiction and is not allowed to bring in other findings or evidences on the grounds of stillness or weakness in the law. The court simply cannot avoid making judgment on the grounds stated, and employing the doctrine of the precedent the court judgment shall comprise a legally binding precedent.
The application of the doctrine of the precedent in the Caribbean legal system creates bias in the Caribbean justice because stare decisis or the doctrine of the precedent is not a doctrine of the civil law or of the international law. In other words, although this doctrine is also a product of rational arguments based on facts and evidences, this preserved judgment is not fresh or precisely suited to the particular case in which this doctrine is put into effect. From this, it is quite obvious that the doctrine of the precedent does not reflect the social values and needs of the Caribbean community.
Perhaps the clearest explanation why the application of the doctrine of the precedent in the Caribbean legal system does not reflect the social values and needs of the Caribbean communities is seen in the difference between the civil law and the common law system. While the doctrine of the precedent is strange to civil law, it converges in the common law courts along with the practice of the continental courts. In the civil law, as Lim A Po stated, the focal tasks of the courts are to decide on specific cases through interpreting and applying legal norms.
Whereas in the common law, decision is based on analogy of reason, and aside from making judgment on disputes, the courts are supposed to provide precedence as to how similar case ought to be settled in the future. It means the entire decision of the court will be preserved for future judgment of similar case. There would be no need of arguments, or presentation of evidences, or interpreting and applying legal norms as the previous ruling of the court will be applied.
The above comparison shows that the civil law considers the social values and needs by applying and interpreting legal norms which based on the need and situation of the society. By norms, means the law that is formulated on the values and needs of the society. According to Guiliano Di Bernardo (1998) the meaning of norm is “the pattern of due behavior” (p. 223). Di Bernardo describes norm as “a complex situation or events.”
This complex situation according to him “includes not only linguistic expression but also some empirical context of its use including social relations, behavior, and some psychical phenomena related with formulation or an use of this expression” (Di Brnardo, p. 223).
From this, it is clear that legal norms depict the social values and needs of the society as it include in its context existing social relations and behavior of the particular community. In contrast, instead on drawing judgment through interpreting and applying legal norms the common law utilized previous decision which may include interpretations of statutes which are derived not from context of the Caribbean community but perhaps mostly from the English tradition which depict British influences in the Caribbean legal system.
The debate on strictly adhering to the precedent
One of the arguments on the debate regarding the doctrine of the precedent is the extent to which judges actually apply the doctrine of the precedent. Popple noted that some of the theorists “contend that this doctrine is simply part of the public discourse that judges use to justify their decisions” (p. 5). Citing a particular opinion, Popple puts it, “the degree of the certainty and stability in the law secured by the doctrine of stare decisis is far less than it appears to be” and that one of the most important social function of this “is to maintain at a maximum the feeling and appearance of certainty and stability” (p. 5).
According to Antoine, the recent constitutional decisions have triggered this debate which also include arguments about the relative value of strictly adhering to precedent over finding new legal solutions which might better fit society’s needs. Antoine stated, “The debate ensues because of a long train of constitutional law cases involving the death penalty, in which the Privy Council overruled a number of established precedents on various aspects of the issue before it. In some instances, the Privy Council not only overruled established precedents, but soon thereafter, reinstated them, causing these aspects of the law to be in a state of flux” (p. 121).
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.
The weakness of the Doctrine of the precedent
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.
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.
- 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
- Internet Source
- Lamond, Grant (2006). Precedent and Analogy in Legal Reasoning. Standford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/legal-reas-prec/
- Po, H. R. L “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 Justice”