Stare decisis and the development of Caribbean jurisprudence

• Author: Rosalea Hamilton
• Position: LL.B., Ph.D., Norman Manley Law School Mona, University of the West Indies, Jamaica
• Pages: 330-350

STARE DECISIS AND

THE DEVELOPMENT

OF CARIBBEAN

JURISPRUDENCE

ROSALEA

HAMILTON*

INTRODUCTION

A

fundamental principle in all legal systems is that past decisions should mould

future decisions so that similar cases can be treated alike. This doctrine of

precedent significantly contributes to the stability and certainty desired in a

legal system. However, its usefulness in developing a Caribbean1 jurispru-

dence is limited. This is a very important concern for the Caribbean, especially

is light of current discussions about a Caribbean Court of Appeal where it is

explicitly or implicitly assumed that Caribbean jurisprudential decisions will

be espoused,

A prior question to any discussion of developing a Caribbean jurisprudence

is:

"Is there

a Caribbean

jurisprudence?"

Some may argue that

by

echoing British

precedents and, by implication, British jurisprudential thinking, there is

nothing "Caribbean" about jurisprudence practised in the region. If this is so,

should a "Caribbean jurisprudence" be developed? If one considers law as an

essentially abstract, objective set of rules/norms whose meaning

is

settled,2 then

*LL.B., Ph.D., Norman Manley Law School Mona, University of the West Indies, Jamaica.

All references to "Caribbean'' in this paper mean "Commonwealth Caribbean," i.e. chose countries

in the Caribbean that were once part of the British Commonwealth-

- This view is derived from Kelsen's "pure theory" which sees law purely in terms of reason, abstracting

from socially derived value-judgments. See Kelsem Pure

Theory

of Law (Knight trans, 1967). To a

lesser extent, it is also consistent with Hart's concept of

law;

see Hart, The

Concept

of Law (Oxford,

Clarendon Press, 1961).

the continued application of British rules and precedents to the Caribbean can

be perceived as acceptable without the need to develop a "Caribhean jurispru-

dence"

or the need to establish a Caribbean Court of

Appeal.

Jurists in the

region have traditionally held this view of law and, feeling bound by British

precedents, have practised "mechanical jurisprudence"3 rather than develop a

Caribbean jurisprudence. If, instead, one

sees

law as essentially

a

social process

that is shaped by society and in turn shapes society, then a Caribbean

jurisprudence is a necessary development.

This paper adopts the view that there is an embryonic, fledgling Caribbean

jurisprudence that is being stifled by the doctrine of

stare

decisis.

Caribbean

jurisprudence will flourish only if judges move away from the stria binding

approach to British precedents. In examining this proposition, the doctrine of

stare decisis will be carefully examined, clarifying the distinction between a strict

binding precedent and a

less

strict approach to the doctrine of precedent and

discussing the controversy about the authoritative status of precedents. Next,

the strengths and weaknesses of the doctrine of

stare decisis

will be discussed.

Then, a conception of a desirable Caribbean jurisprudence will be offered as

well as a discussion of the extent to which the doctrine of binding precedent

has stifled its development. Finally, some concluding remarks,

THE DOCTRINE OF PRECEDENT

In analysing this doctrine, an important distinction can and should be made

between precedents in civil and common law countries. In civil law countries

based on Roman

law,

precedents may

be

followed and commonly

are,

but there

is no rule requiring one court to follow the decision of another where the facts

appear to be similar. Here it is assumed that legal rules applicable to any

particular case are fixed and codified so judges apply the rules without reliance

on personal views or interpretations of

others.

Although individual decisions

contain no future authority In themselves, they have value and judges do not

ignore them.

In common law countries, like Britain and the Commonwealth, the systems

of precedents carry much more weight. The doctrine of binding precedents

3 The

term was

used

by Roscoe

Pound in "Mechanical

Jurisprudence"

(1908) 8

Columbia

Law

Review

605

and applied to Caribbean judges by Howard Malcolm in "Towards the Emergence of an

Anglo-West

Indian Jurisprudence," (1993) 18

West Indian Law

Journal

53.