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.
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).