LAW1010 Law and Legal Systems 2021

Law And Legal Systems LAW 1010
Semester 1 2021-2022
INSTRUCTION: Please make your entries in a coloured font

Test on November 1: Workbooks 1-3
YEARWOOD’S LEARNING GUIDELINES
Task 1: Before you attend the lecture: Read the prescribed text
Task 2: Before you attend the lecture: Make notes of the readings
Before any lecture you need to do the assigned readings, at least to some extent. Your professors often tell
students that this is an essential component of learning the course material (or having success in lectures).
And yet, few students actually heed this advice.
So, do the reading. And whilst you’re at it, take notes. The benefits here are three-fold (at least). First,
familiarising yourself with the lecture material in advance will mean you’re clued up on what will be
discussed, and you can spend more time in the lecture focusing on the important bits. Second, going over
the material at least twice will help you commit it to your long-term memory (great for exams). And third,
you can jot down any questions you might have and ask them during, or after, the lecture.
Reference: https://www.oxbridgeessays.com/blog/master-lecture-notes-tips-really-work/
Note-Taking is an important Skill. We recommend you consider the methods suggested at the above
link. To get you started, we recommend you use the Cornell Method. If it does not work for you,
experiment with other styles that fit your needs. For the Cornell Method, Follow this link:
https://docs.google.com/document/d/1X5vuSm8piiUwnsoYlyTt28inijWNTBvj7-jGWTUSmSQ/edit?
hl=en_US make a copy of this template if you are working on your computer, or replicate in your
notebooks.
For more information: https://www.timeatlas.com/cornell-note-template/
Task 3: Attend the lecture

The purpose of a lecture is not to give you all the information you need to pass your module. Lectures are
starting points for your own reading unless you want low marks. Lectures are used for a variety of
reasons:
● To give an overview of a subject, in which case you will need to use your reading to fill in the
detail.
● To cover an important detail, in which case you will need to use your reading to put it into
context and get the bigger picture.
● To cover a conceptual idea and give one or two examples of it in practice - you will need to use
your reading to find more examples to ensure you have grasped the concept fully.
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Whatever the purpose, you will need to be able to make effective notes.
Reference: https://canvas.hull.ac.uk/courses/30746/pages/introduction?module_item_id=71654
Task 4: During the lecture

It is important that you focus during lectures, having prepared for classes, with a view to having some of
your own questions, areas of confusion clarified. The point is not to write the lecture word for word.
“Essentially, you only want to write down the main important points. You do this by becoming a really
good listener. The trick to taking good lecture notes is to avoid the tangents and try to pinpoint the stuff
that is important - which may be examined, though not exclusively. Pay attention to signposts: These
might include:
● “You need to know X”
● Anything the professor says more loudly or with more emphasis
● Anytime there is a relationship (e.g. first…second…finally)
● Anytime there are significant signposts (e.g. especially, most significant, consequently, etc.)
At the end of the lecture, we may give a summary, conclusion, or review of the material. These are the
main takeaway points and are likely to be important. Don’t pack up your bags early. Wait until the
professor is done talking – in these last few minutes the professor may be telling you what s/he wants you
to know come essay or exam day.
As a side note, remember that what you do and do not take away from the lecture are equally important.
Did you have unanswered questions, or did your mind wander and miss a point? If the answer is yes, it is
important to get these addressed earlier rather than later to make sure that you have a complete set of
notes.
Reference: https://www.oxbridgeessays.com/blog/master-lecture-notes-tips-really-work/
For additional templates of the Cornell Method and further explanation, see
https://templatelab.com/cornell-notes/ . If you come across similar or better resources, feel free to share
them with us.
Asking questions
At the end of most lectures (and often during) the lecturer will ask if anyone has a question or if further
clarification is needed.
Please do not hesitate to use this opportunity to ask a question about anything you did not understand -
however dumb you feel. It is a cliché, but true, that the only dumb questions are the ones you didn't ask.
You will be amazed how often there is a collective sigh of relief when someone asks the question that
everyone was too afraid to ask!
Your lecturers are not scary and they are not judgemental, they are (usually) nice, friendly people! It is
important that you develop a good relationship with them. Asking questions is a way to show you are
genuinely interested in their subject and they will be happy to answer them.
Reference: https://canvas.hull.ac.uk/courses/30746/pages/introduction?module_item_id=71654
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Alternatively, if you have questions and want to submit them, send an email to the Course Director
or your Tutor at least 24 hours before class.
Task 5: Attend the tutorial

● See tutorial questions in this workbook.
● Before tutorials - Consider the Feynman Method to ensure you understand what you are engaging
with.
STEP 1
Write the name of a concept at the top of whatever place you are planning to record your notes. While
purists will push for a physical pen and paper, this isn’t necessarily prescriptive - for example a
whiteboard or digital note taking app may be used, as long as you maintain focus and attention.
STEP 2
Begin to write out an explanation of the concept on your recording area. The important thing here is to
write it as if you were explaining it to a layman who has no knowledge of the concept. This will begin to
highlight what you understand, but more importantly where you have gaps in your knowledge.
STEP 3
Pinpoint these exact gaps, essentially the areas where explanation is a struggle. Go back to your source
material, and reread and relearn these parts. Repeat Step 2 as a feedback loop as many times as you
require.
STEP 4
Once you have properly explained the concept, put on your editor's hat. If you are using overly wordy or
confusing language (or simply paraphrasing the source material) keep filtering your content. Humans are
really good at adding complexity - it takes a lot more cognitive effort to remove it. Simplify your
language, and, where possible, use simple analogy.
Reference: https://strategyumwelt.com/frameworks/feynman-technique
Task 6: After the lecture and tutorial

● Consolidate and review your notes.
● If you need further assistance, discuss the material with your tutor and/or attend office hours.
● Attempt past paper questions.
Note that the references/ footnotes throughout the workbook may not be in the OSCOLA form, so
please correct them.
WORKBOOK 1
The Nature and Functions of Law in the Commonwealth Caribbean
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Learning Outcomes
By the end of this part of the course you should be able to:
● Define what is “law”
● Differentiate law as to other social norms
● Identify the main legal theories
● Discuss the advantages and disadvantages of the main legal theories
● Explain the functions of law, with particular emphasis to the functions of law in the Caribbean
● Develop an understanding and perspective on the relationship between Law and Morality, and
Law and Justice
Task 1: Before you attend the lecture: Read the following

Background reading (This provides general reading that gives context, major ideas and themes,
vocabulary of the subject matter and credible information that can help you to understand the essential
reading)
Rose-Marie Belle Antoine. Commonwealth Caribbean Law and Legal Systems (2nd edn, Routledge
2008) Ch 1
Summary
Law and legal systems within the Caribbean are a product of our plural society and our colonial
past. Imperialism provided the region with much of its present identity. It is composed of many
independent and dependent territories. The Caribbean also includes several socioeconomic
groupings (e.g OECs, CARICOM, AOCs).
Law in the Caribbean is said by many to lack individuality. Many say it is poorly suited to
addressing the issues of contemporary Caribbean society. 'Boodram v AG' (dicta of Sharma
JA).
There is a notable turn to foreign sources of law (e.g North America, Europe) in the cultivation
and maintenance of our own law. This is for a variety of reasons - a perception of foreign
countries as better, higher efficiency, geographic dominance, americanization, mass media, etc.
Many sociologists, economists and historians attribute "the plantation paradigm" as an

explanation for the persistence of poverty in the Caribbean (in both a legal and economic
sense).
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There have been slight deviations from the Westminster legal system. Some Caribbean
territories (Jamaica, Guyana and Grenada) have experimented with socialism and democratic
socialism.
Legal displacement, though subtle, is also present in the Caribbean. This comes as a result of
our social, political and economic needs .(industrialisation by invitation, rise in MNCs, UN
coercion/influence).
2008) Ch 2
West Indian students of law are taught about Aquinas and law, and morality theories about the function of law in
society, but mention is hardly ever made of the important immoral function the law played in much of the history
of the Commonwealth Caribbean. This is its role in the infamous slave systems of the region.
The initiation of law into Caribbean society was within a colonial, imperialist and inequitable framework, as a tool
to legitimise the exploitative nature of plantation society thus Slavery created a duality in law and legal institutions.
The psychological impact and longevity of brutal slave societies also encourages what can be described as feelings
of insecurity and even self-hate in our societies and legal systems today. Perhaps this is the reason why today, we
still send our final appeals to the Privy Council located in England and so many Caribbean people doubt that we
can adjudicate final appeals for ourselves in a just manner.
Upon Independence, we ended up with written Constitutions with entrenchment provisions and saving law clauses,
instead of continuing with the pure Westminster model of unwritten Constitutions.
to our appreciation of law during slavery, which by any account, was immoral. Those who argue in the affirmative
believe that there is some kind of ‘higher law’, known as ‘natural law’ to which we must turn for a basic moral
code. There are diverging views on the source of that moral code, however. Some, like Aquinas, argue that it
comes from God.
The slave was, in fact, one of the ‘chief causes’ of modern law, for example, the law of contract was derived from
the ancient law of chattels.
Essential reading (This provides reading that gives specific examples, problem solving solutions, and
detailed analysis that provides tools for critical analysis)
Stanton-Ife, John, "The Limits of Law", The Stanford Encyclopedia of Philosophy (Winter 2016 Edition),
Edward N. Zalta (ed.), Available at: https://plato.stanford.edu/archives/win2016/entries/law-limits/
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Brian Tamanaha, “Understanding Legal Pluralism: Past to Present, Local to Global’ (2007) Vol. 29,
Sydney Law Review Read page 396-403.
A Framework for Legal Pluralism;

A. Six Systems of Normative Ordering in Social Arenas.
1. Official Legal systems-linked to an institutionalised legal apparatus of some kind; they
are manifested in legislatures, enforcement agencies, tribunals; they give rise to powers,
rights, agreements, criminal sanctions, and remedies.
2. Customary/cultural normative systems- include shared social rules and customs, as well
as social institutions and mechanisms, from reciprocity, to dispute resolution tribunals,
to councils of traditional leaders. Also referred to as ‘indigenous law’ or ‘traditional
law’; These terms are labels usually invoked in post-colonial societies.
3. Religious/cultural normative systems-are usually seen in terms distinct from and
broader than official legal systems, they also can contain a subset of norms that have
specifically ‘legal’ status, in two different senses: (1) through recognition by the official
legal system; or (2) on their own terms. The first sense incorporates and recognizes
customary religious practices such as marriages, divorces and inheritance. A number of
countries also recognize the jurisdiction of Islamic Courts and some officially recognize
Sharia as binding law.
4. Economic/Capitalist normative systems- range of norms and institutions that constitute
and relate to capitalist production and market transactions within social arenas. This
ranges from informal norms that govern continuing relations in business communities
(including reciprocity, and norms that discourage resort to official legal institutions in
situations of dispute), to norms governing instrumental relations, to standard contractual
norms and practices, to private law-making in the form of codes of conduct, shared
transnational commercial norms, arbitration institutions, and so forth, including shared
beliefs about capitalism (like ‘market imperatives’).
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5. Functional Normative systems-organised and arranged in connection with the pursuit of

a particular function, purpose or activity that goes beyond purely commercial pursuits.
Universities, school systems, hospitals, museums, sports leagues, and the internet (as a
network) are examples of functionally oriented normative systems, some operating
locally, some nationally, and some transnational in reach.
6. Community/cultural normative systems-In general terms, it is an imagined identification
by a group of a common way of life, usually tied to a common language and history and
contained within geographical boundaries of some kind, but there can be ‘communities’
of interaction which exist purely on the internet comprised of people from around the
world. At the local level, communities consist of thick, shared norms of interaction that
constitute and characterise a way of life — including customs, habits, mores, and so
forth — but at the broader level of the nation (or beyond) the bonds that constitute a
community can be much thinner and mainly defined by a perceived identity.
B. Clashes among Normative Systems, and what fuels them-
● Clashes can exist within competing versions of each type of normative ordering — as when
recognised human rights norms (one body of official law) are inconsistent with the norms of the
state law system (another body of official law); and clashes can exist between coexisting
normative systems — as when the norms of the official legal system conflict with customary or
religious or community norms (whether labelled ‘legal’ or not).
● conflicts are commonly fuelled from two different sources. Groups or actors who benefit from,
have a stake in, represent, or give rise to, the institutional structures of competing normative
systems (ie state officials and legal professionals, tribal leaders, clergy, business people) will
defend and exert the power of their particular system in situations of a clash, not only because of
their genuine commitment to and belief in the system, but also because their interests, identities,
status, and livelihoods are linked to it
● Individuals and groups within a social arena also drive conflict by strategic resort to sources of
normative ordering in an effort to advance their individual or collective goals or vision.
Example, women seeking redress and protection from official legal norms to escape oppressive
customary normative systems i.e. female circumcision
C. Power Differentials between Normative systems-
●
David A. Funk, Major Functions of Law in Modern Society Featured, 23 Case W. Res. L. Rev. 257
(1972) Available at: https://scholarlycommons.law.case.edu/caselrev/vol23/iss2/3 (While we put the link
here, we also want you to get comfortable searching for material, for those that are not listed you
can start with a google search, a Google Scholar Search or go directly to HeinOnline, quotation
marks are your friend in this case)
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Additional Reading (The name is on the tin! This provides you with additional sources of information
that goes beyond the background and essential reading)
Raz, ‘The Functions of Law: Essays on Law and Morality’ Clarendon Press (1979)
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What is Law? Definition(s) of law
Law can refer to rules which govern human behaviour or conduct. Therefore, law enables and disables
human behavior.
The following are some definitions/discussions of what is law:
● “In every language there is a word for law, in the sense of rules of conduct that are considered
obligatory by members of a community… laws prescribe rules of conduct in society. Law in this
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sense is common to all societies. There is no society that does not have rule breakers, and no
society without discord. Yet it is hard to imagine a society where there are no common rules.
cohabitation and cooperation are not possible except on the basis of some common understanding
of what behaviour is acceptable and what is not. The rules that indicate the right and wrong ways
of behaving are generally identified by the term ‘law’ or a word of equivalent meaning. There are
many kinds of law, such as moral law, religious law, laws of equitee, customary law, common
law, royal law, state law, and so forth.”1
● “... much of the confusion in defining law has been due to the different type of purpose sought to
be achieved, and in particular that jurists have not clearly distinguished between three types of
question, va (1) a definition, in the sense of an elucidation of meaning; (2) a criterion for the
validity of law; and (3) a general scheme for the criterion of validity of any legal system
whatever.2
….
Law requires a certain minimum degree of regularity and certainty, for without this it would be
impossible to assert that what was operating in a given territory amounted to a legal system.
Clearly, however, no exact criterion can be applied for determining what degree of regularity or
certainty is necessary to achieve this aim, and states may vary from arbitrary tyrannies, where all
are subject to the momentary caprices of a tyrant, to the elaborate and orderly governed states
associated with liberal democracies. Pollock urged that the exercise of a merely capricious power,
according to the whim of the moment, is not law, and criticised Austin on the ground that, on this
theory, the capricious order of a razy deposit would still be law until revoked.” 3
● “In the long march of mankind from the cave to the computer a central role has always been
played by the idea of law - the idea that order is necessary and chaos inimical to a just and stable
existence. Every society, whether it be large or small, powerful or weak, has created for itself a
framework of principles within which to develop. What can be done, what cannot be done,
permissible acts, forbidden acts, have all been spelt out within the consciousness of that
community. Progress, with its inexplicable leaps and bounds, has always been based upon the
group as men and women combine to pursue commonly accepted goals, whether these be hunting
animals, growing food or simply making money.
Law is that element which binds the members of a community together in their adherence
to recognised values and standards. it is both permissive, in allowing individuals to establish their
own legal relations with rights and duties, as in creation of contracts and coercive, as it punishes
those who infringe its regulations, law consists of a series of rules regulating behaviour, and
reflecting, to some extent, the ideas and preoccupations of the society within which it functions.
And so it is with what is termed international law, with the important difference that the
principal subjects of international law are nation-states, not individual citizens. There are many
contrasts between the law within a country (municipal law) and the law that operates outside and
between states, international organisations, and in certain cases, individuals.” 4
1
Suri Ratnapala, Jurisprudence (third edition), CUP 2017; p 5
2
Lloyds Jurisprudence, 9th edition p. 13
3
Lloyds Jurisprudence, 9th edition p. 15
4
Malcolm Shaw, International Law, 4th edition, page 1
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● “It appears that we are successful legal civilisations if we judge ourselves [the Caribbean] by how
admirably we have retained and maintained the English jurisprudence that we inherited or, more
accurately, was thrust upon us. However, we [the Caribbean] have exhibited failure in our
inability to put our own stamp, our own face, on our justice. Ultimately, law is meant to reflect
society and to engineer society. Yet our law still looks very alien and foreign to many [in the
Caribbean].
…
The region’s law and legal systems are still ‘striving’ to be West Indian. Apart from deviations
from Westminster-style democracy, as evidenced by the written Constitutions, there have been
experiments with socialism and democratic socialism in at least three countries: Jamaica, Guyana
and Grenada. In the latter two nations, the impact of these political changes extended to their
Constitutions. Grenada, the change was profound, even including a suspension of the
Constitution under a revolutionary government, with a substantial change to the court structure
which necessitated complex jurisprudential questions about State legitimacy. In addition, while
the base of the law and legal systems remains the common law, the detail of that law has been
changed according to the social, political and economic needs of the region, albeit not
substantially enough in the eyes of many.”5
Notice that we did not provide a dictionary definition, for the purpose of this course, we do
not expect to see dictionary definitions, wikipedia, quora or other non-scholarly sources.
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List some of the main characteristics of law based on the above definitions; consider the similarities
and differences of these definitions:
Main characteristics of law based on the above definitions:

● Rules of conduct for members of a community
● prescribed rules of conduct in a community
● laws are a common feature for all societies
● provides a common understanding of acceptable/unacceptable behaviours
● Laws indicate the right and wrong way of behaving
● are a framework of principles within which a society develops.
● Law regulates relationships within a society, community, between nations, within workplaces.
● Laws are intended to shape behaviour
● Laws shape relationships between societal members
● Law is a method of imposing particular behaviours
5
Rose Marie Belle Antoine, Commonwealth Caribbean Law and Legal Systems, p 5
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● the behaviour is encouraged through coercive force or the threat thereof

● Law exists universally though it is expressed differently and in different words.
● Law directs the behaviour of individuals and society.
● Law must be consistent over time
● Law is permissive and coercive
● International law is among nation-states, outside and between states, international organisations
as compared to municipal law , within a country and among individual citizens
In comparing law to…

● Social rules
● Rules of a club
● Rules of a university
… what makes law different?
● Law versus social rules - The character of compliance is the main distinguishing feature between
law and social rules. While a rule establishes a standard of general conduct, a law makes that
power strictly enforced.
● Law versus rules of a club - The rules of a club apply to its members only whereas the law seeks
to mandate a particular standard of behavior for everyone in the society.
● Law versus rules of a university - The rules of a university seek to govern and protect students,
staff and third parties who come on the compound while the law seeks to govern and protect
society as a whole and not a particular subset of society.
Social rules may differ depending on one’s religion and culture. Different cultures and religion have their
own beliefs and way of life.
Rules of a club are rules formulated for that specific institution. Only members of that club would adhere
to those rules.
Rules of a university are rules formulated for that specific institution. Only members inclusive of board
of directors, teachers, students and administrative staff would adhere to those rules.
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Laws are rules meant to regularize order between all members of society no matter their differences in
values and belief. All members of society must adhere to the laws set in place by the legislature.
Law is different because it is enforceable in courts.
Which definition of the law do you prefer? Justify your answer.
Law is that element which binds the members of a community together in their adherence to recognised values
and standards. it is both permissive, in allowing individuals to establish their own legal relations with rights and
duties, as in creation of contracts and coercive, as it punishes those who infringe its regulations, law consists of
a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society
within which it functions.
And so it is with what is termed international law, with the important difference that the principal
subjects of international law are nation-states, not individual citizens. There are many contrasts between the law
within a country (municipal law) and the law that operates outside and between states, international
organisations, and in certain cases, individuals.”
I have chosen this definition because it summarizes the functions and purpose of law. For members
of society who come from different social backgrounds to be able to cohabitate with one another,
there needs to be rules in place to maintain order. The legislature ensures that certain standards are
maintained and punishes those who infringe on those regulations in an effort to deter individuals
from committing offences.
This definition goes a little further as it also touches on international law. Law is not only
implemented to regulate a state, but there are legally binding agreements that maintain order and
good relations among other countries in the world to ensure peace and cooperation between
countries.
[1]
Malcolm Shaw, International Law, 4th edition, page 1
If you had to formulate your own definition of law, without paraphrasing or quoting any of the
above scholars what would it be?
Law is a system of obligatory rules and practices set in place by the State through its legislature, to
maintain order and a standardized behavior within a society of individuals who differ in values, beliefs,
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and norms in an attempt to achieve successful cohabitation.
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What are the main theories of law?
● Natural Law
● Positivist
● Realism
Natural law is:
Natural law is an old way of thinking about the nature of law. • It is premised on the idea that law
is not formally identified in courts but that there are principles of natural law. • These principles
are said to ‘objective moral principles which depend upon the nature of the universe and can only
be discovered by reason. ’ • The rules that govern human conduct are connected to the ‘immanent
truths concerning human nature’.
Positivist law is:
Legal positivism promotes a morally neutral idea of the law as something we should strive
towards. • It is premised on the idea that there is a separation between descriptions of law
and morality regarding law as it stands and how the law should be changed.
• It also assumes that descriptions of what is law should be separate from what law should
be.
• John Austin notes:
• ‘The existence of law is one thing; its merit or demerit is another. Whether it be or be not is
one enquiry; whether it be or be not conformable to an assumed standard, is a different
enquiry. A law, which actually exits, is a law, though we happen to dislike it, or though it
vary from the text, by which we regulate our approbation and disapprobation. ’ [The
Province of Jurisprudence Determined, Lecture V, CUP, 1995 (originally published in 1832)
p. 157] • Austin’s Command Theory of Law • “If a determinate human superior, not in the
habit of obedience to a like superior, receive habitual obedience from the bulk of a given
society, that determinate superior is sovereign in that society, and the society (including the
superior) is a society political and independent. ” • Austin’s Command Theory of Law In
summary Austin presented a ‘command theory’, which identified law as a set of commands
(orders backed by threats) from a sovereign (that is the superior habitually obeyed by inferior
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but does not obey anyone else) to citizens in a legal system.
law purely based on what the government decides.

H.L.A HART’s update to Positivist law:
Hart found that Austin’s command theory was unable to distinguish orders from a terrorist
and a pure legal system.
As such, he advanced that law is a set of rules that could be understood separate from
morality and are divided into two categories.
1. Primary rules - these are essential for a society’s survival. They impose obligations
and duties of a positive or negative form.
2. Secondary rule - these do not impose obligations but rather confer power.
Rules of Change - promotes the creation of new legal rules.
Rules of Adjudication - allows for the settlement of disputes.
Rule of Recognition - outline what rules have legal force.
Realism is:
Legal Realism examines the law from a real world perspective and suggests that it is not the actual
legislation that shapes legal decisions/outcomes but what judges will enforce and what a legal
community or general population will accept. A realism approach to the law also contends that
technical law as legislated is often faulty and may not conform to some commonly held human
principles.
The law is not derived from social interest and public policy. Judges make the law. The law is not
neutral and is not objective.
Legal Realists state that what influences the outcome of a case is not merely the facts or the
law but rather the judge, therefore their morals, their beliefs, their position within society,
their upbringing, their schooling, etc.
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There are four (4) main ideas to the legal realism
1. Law protects powerful economist interests first.
2. The outcome of a legal dispute is determined by a judge's morality, mood or the

judge's personality. (The outcome of a legal dispute is determined by the judge
(Subjective exercise) laws are actually not rational like positivist think. Laws are
rather ambiguous and often contradictory)
3. Since judges interrupt the law. Legal realists argue that judges should be motivated
by the public good.
4. Since lawyers can predict how a judge is going to rule by examining their
behaviour in past cases, they should use this to their advantage to choose their
forum wisely
Complete the table below (list as many advantages and disadvantages as you can):
Theory Advantages Disadvantages
Natural Law ● It is universal and absolutist so it ● It is not always simple. The determination of
is always relevant what is right and wrong is sometimes as
hard.
● Moral law is accessible by our
reason and it makes God’s reason ● Natural law philosophy stresses “what ought
accessible to a believer because to be done " and not necessarily "what is
humans and God share the same done "
rationality.
● The theory is based solely on right
● It is based on reasoning upon reasoning, which is a criterion that cannot be
reason and not revelation-this verified through empirical scrutiny.
allows for everyone to follow the
● There is what we call "the multiple-
principles.
conscience problem ". That is to
● It allows for a clear cut approach say,different individuals have different
to morality and establishes explanations for, and determinations of,what
common rules. is right and what is wrong. As regards this
problem, we call the Natural Theory of Law
'a harlot'.
Positivist ● Positivists rely on scientific data ● It is not fair for the sovereign to not be
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to make calculated decisions to bound by laws that they create

remain objective.
● Positivism disregards human behaviour and
● Positivists have set laws so there believes persons can disregard their
will be minimum room for error. emotions to be objective
● Inflexible; sees the law as black and white.
Realism ● The acknowledgement of ● Judges making decisions subjectively can

interpretation highlights the fact cause the decision made to be wrong, maybe
that the law is not always neutral not in their eyes but in society’s as they are
and objective. making decisions off their own standard.
Identify and define the features of another theory of law beyond the three which are explored
above/in the class.
Feminist Legal Theory
According to the ‘Stanford Encyclopedia of Philosophy’ a feminist philosophy of law

identifies the persuasive influence of the patriarchy and masculinist norms on legal
structures and demonstrates their effects on the material conditions of women and girls
and those who may not conform to cisgender norms. It also considers problems at the
intersection of sexuality and law and develops reforms to correct gender injustice,
exploitation or restriction
Postcolonial Theory
"Postcolonialism can be seen as a theoretical resistance to the mystifying amnesia of the
colonial aftermath. It is a disciplinary project devoted to the academic task of revisiting,
remembering and, crucially, interrogating the colonial past." -Leela Gandhi,
Postcolonial Theory: A Critical Introduction (Taylor & Francis 2020)
MARXIST LAW THEORY
Marxists believe that private property is the basis for the coming into existence of law
and state. They provide that property was the cause for creation of classes in the society
in which those who have the means of production can exploit those who do not have
these means by making laws to protect the private property. They base their arguments
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on the fact that there was neither law nor state in primitive society for there was no
private property. The theory has the assumption that people can attain a perfect equality
at the communism stage in which there would be no private property, no state and no
law. But, this was not yet attained and even the practice of the major countries like the
former United Soviet Socialist Russia (U.S.S.R.) has proved that the theory is too good
to be true [Beset; 2006 ]. Nevertheless, this theory is challenged and the theory of
private property triumphs.
The Inadequacy of (Western) Legal Theorization [This will be discussed in the tutorial]
What are the Gaps between traditional theories of law and law as lived and experienced in the history of
the Caribbean?
“No existing theory of law accounts for this situation in any satisfactory way; indeed it is all but ignored
by theories about law. The explanation for this gap is plain: legal theories have been produced by Western
theorists who see law much as I did, through the lens provided by our assumed view of the law in our
own societies”
Excerpt From: “(Oxford Socio-Legal Studies) Brian Tamanaha-A General Jurisprudence of Law and
Society-Oxford University Press (2001)
4. The functions of law

“Most conquered and colonized communities do undergo absurd legal experiences. When they encounter
law, it is largely to subdue and dehumanise them by denigrating their legitimacy over themselves, their
settlements, properties, estranging them from their inalienable rights and freedoms, desecrating their
culture and community stability among other irrationalities. (Kibboye Okoth-Yogo ‘The Meaning of Law
in relation to Kenya’s Legal System’ (2015) Working Paper Series, IJED Institute)
Function (Using Funk’s Classification. The Example

article is listed in your readings.)
Public Order Criminal code Act- Ensuring that individuals

adhere to rules to maintain order within society
by applying punishment when criminal
offences are committed
Social Control One of the functions of law is to control members of

society by coercion and threats of coercion so as to
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To maintain peace and order maintain peace and order. An example of this can
be seen with the criminal code act.
Social Cohesion Solidifies connectedness among groups in

society by reducing inequality- Passing
legislations just like Equal Opportunities Act-
in an effort to deter discrimination
Promote Change in Society By amending and repealing laws, making new

legislation for the changing times in society.
Legalization of Homosexuality,
Decriminalization of Marijuana etc.
Caleb Orozco v AG- Brought claim against

Belize stating that section 53 of the Criminal
Code Act infringed on their constitutional
rights for right to privacy. Section 53
criminalised carnal intercourse between that
which is not of the natural course of human
nature.
Misuse of Drugs Act Amendment 2017 (Belize)

decriminalizing marijuana. Individuals would
not be held criminally liable if found with
marijuana 10 grams or less.
Define Rights and Duties Indicating fundamental human rights such as

right to liberty, privacy, dignity, religion.
Constitution
duties as a civilian- e.g., Public Services

Regulations
Balance conflicting interests Mediating in affairs such as land disputes,

contractual differences, marriages etc.
Maya Leaders Alliance v GOB- Mayas who

were the first inhabitants took legal action
against the Government of Belize to declare
certain villages within the Toledo District of
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Belize as communal lands.
Dispense Justice To administer justice

Chapter 109b administrative justice act of
Barbados- this act lays down the conditions of
how justice is to be administered in Barbados
Allocate Power This deals with the allocation of governmental

power and designates which individuals or groups
in society may exercise which governmental
powers.
The Constitution of Barbados capture viii part 2 lays
down the conditions of the appointment, removal and
discipline of public officers.
To Legitimize To legitimize governmental institutions and

actions.
The Employment Rights Act, 2012 established the
Employment Rights Tribunal in Barbados which
regulates its own procedure and may make Rules
for that purpose.
Tip: Identify examples of legislation, cases, and other forms of regulation that match the functions
identified. Use your parliament’s website or Ministry of Justice website to assess some of those Bills and
match their functions. Searching Tips for Google (Google Country name AND Parliament AND Bills) 6
Try one or more of those tips to find the websites and then to examine the Bills. These tips link to some of
the ways you will learn how to use websites such as Justis and Lexis Nexis)
Thinking Point: As you progress through the course- examine the extent to which Funk’s taxonomy (the
categories he has devised) are effective and apply it to various forms of laws as we progress through the
course. How do the previous theories compare with the historical function of law in the Commonwealth
Caribbean? (We will examine the historical development of law in the Caribbean in Workbook 2.)
What do you think is the most important function of law?
The most important function is to regulate society. Determine what is acceptable behavior and provide
6
Google is the simplest search system and probably where you will often start your research (though you should
rarely end it there and instead use authoritative sources such as the various tools you have access to through the
library- such as Justis, LexisNexis) Here are some tips for searching:
https://www.lifehack.org/articles/technology/20-tips-use-google-search-efficiently.html
Alternatively, see: https://blog.hubspot.com/marketing/google-advanced-search-tips.
19
deterrent through punishment in order to get citizens to comply.
How do you feel about the above question? Is it a good question? What other follow up questions
would you need to ask to get a good answer
Do the functions of law match the functions of law of your country?
The functions of law do match the functions of the law in Barbados as the laws are designed to
protect the citizens of the country, protect public order and governance and also by promoting
social change in society.
5. Law and Morality
Read the extract from Raymond Wacks,7 below:
7
Understanding Jurisprudence, 4th Edition
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21
22
6. Tutorial Questions
(a) What are the gaps between traditional theories of law and law as lived and experienced in the history
of the Caribbean?
The three theories of law-(1)the Natural Law (2(Positivist)(3)Realism.

Natural Law is a law whose content is set by nature. Positivist Law believes law is about law depends on
social facts and not on its merits. Realism theory of law as a generalized prediction of what Courts will
do,believing the certainty of law is a myth and its predictability depends upon the facts which are before the
Court for decision.
There is “no existing theory of law that accounts for this situation in any satisfactory way; indeed it is all but ignored by
theories of law. The explanation for this gap is plain: legal theories have been produced by Western theorists who see
the law as much as we do, through the lens provided by our assumed view of the law in our own societies”.
(b) “It is not … the function of law to intervene in the private lives of citizens, or to seek to enforce any
particular pattern of behavior, further than is necessary to preserve public order and decency, to protect
the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation
and corruption of others, particularly those who are especially vulnerable because they are young, weak in
body or mind, inexperienced, or in a state of physical, official or economic dependence.”
Critically discuss.
This question speaks to the degrees of morality or immorality which is none of the courts business
I believe the only time the law should intervene is if it causes harm to others. What consenting adults do in
privacy, so long as it is not bringing harm to others who are not in a position to protect themselves such as
that of a child, an elderly person, a disabled or sick person, the law should not intervene. The legislature
23
cannot state that one has a legal right to privacy but on the other hand chastises him because he does not
conform to the moral values of the majority. Who decides what is moral and what is immoral? We all have
different lifestyles, values, and beliefs.
Law prohibits conduct that harms or endangers the public good; it defines and warns people about the
acts that are punishable by law; it distinguishes between serious and minor offenses; and it imposes
punishment to protect society and to meet the demands for retribution, rehabilitation, and deterrence.
See case of Shaw v DPP. Issue Conspiracy to corrupt public morals. The court found the defendant ‘s
decision to feature prostitute advertisement in his magazine as dangerous to the welfare of society and
it was their duty to protect the public majority’s morals, as well as safety and order.
The law should not intervene into the private lives of citizens unless their conduct is
considered a threat to the public. However, there are instances where citizens have to be
protected from themselves (paternalistic point of view) even though their actions are
conducted privately, such as in the case of R v Brown.
24
WORKBOOK 2
Historical Development of Law in the Caribbean
Learning Outcomes
● Discuss the historical functions of law in the Caribbean
● Define and understand reception of law
● Examine the role of the local circumstances rule in in the Caribbean and other Commonwealth
Jurisdictions
● Examine the inadequacy of mainstream theories in explaining the functions of law in the
Caribbean and advance arguments for Caribbean law

reading)
2008) Chp. 2
West Indian students of law are taught about Aquinas and law, and morality theories about the function of law in
society, but mention is hardly ever made of the important immoral function the law played in much of the history
of the Commonwealth Caribbean. This is its role in the infamous slave systems of the region.
The initiation of law into Caribbean society was within a colonial, imperialist and inequitable framework, as a tool
to legitimise the exploitative nature of plantation society thus Slavery created a duality in law and legal institutions.
The psychological impact and longevity of brutal slave societies also encourages what can be described as feelings
of insecurity and even self-hate in our societies and legal systems today. Perhaps this is the reason why today, we
still send our final appeals to the Privy Council located in England and so many Caribbean people doubt that we
can adjudicate final appeals for ourselves in a just manner.
Upon Independence, we ended up with written Constitutions with entrenchment provisions and saving law clauses,
instead of continuing with the pure Westminster model of unwritten Constitutions.
to our appreciation of law during slavery, which by any account, was immoral. Those who argue in the affirmative
believe that there is some kind of ‘higher law’, known as ‘natural law’ to which we must turn for a basic moral
code. There are diverging views on the source of that moral code, however. Some, like Aquinas, argue that it
comes from God.
25
The slave was, in fact, one of the ‘chief causes’ of modern law, for example, the law of contract was derived from
the ancient law of chattels.
2008) Chp. 5
legal system in the Caribbean belongs essentially to the common law legal tradition.The legal syte born
out of the experience of colonialism, during which laws were transplanted to the region.This
transportation process is important since it is the foundation of the doctrine of the reception law. The
English common law is incorporated as part of the domestic law of the new independent states because
it was imposed upon the colonies. So imposition is the transplantation of law during colonialism.
While the original dependency and Britishness of our law and legal system is accurately attributed to
the colonial policy of imposition, it cannot fully excuse the continuance of these attitudes in modern
independent states.
Imposition of law was primarily to maintain social order, indeed an unjust social order, to maintain
efficiency for the benefit of the metropolitan parent country. These laws were based on convenience, an
instrument of dominance and oppression.
Legal pluralism exists whenever social actors identify more than one source of law within a social
arena. legal pluralism can be separated into six categories:
● official legal systems
● customary/cultural normative systems
● religious/cultural normative system
● economic/capitalist normative system
● functional normative systems
● community /cultural normative systems
official or positive legal systems are linked to the legal apparatus and manifest in legislatures,
enforcement agencies, tribunals; they give rise to powers; rights, agreements, criminal sanctions and
remedies. The other five categories are systems of normative ordering that are distinct from the official
26
legal systems.
Bernard D, “The impact of the English common law on Caribbean society” Amicus Curiae Issue 97,
Spring 2014 http://journals.sas.ac.uk/amicus/article/viewFile/2268/2195
Britain expanded her influence throughout the new world and took to her colonies all of her institutions-
including social, financial, religions and legal and established them along identical lines with those in
the Mother country. With regard to the legal system, the common law of England became the common
law of the colonies and the structure of the court system in large measure mirrored that of England with
no regard for relevance or suitability to local conditions.
There will continue to be arguments for and against the retention of the Privy Council as the final court
of appeal to the Caribbean region. In some instances certain Caribbean states have established special
courts to meet the special needs in the particular society. Example the gun court in Jamaica.
Goveia E, ‘Change and Stability in a West Indian Slave Society’, Slave Society in the British Leeward
Islands at the End of the Eighteenth Century (1969)
Jackson, Leighton, ‘Fi We Law: The Emergence of Caribbean Jurisprudence and the Doctrine of
Precedent’ in Transitions in Caribbean Law (Ed) Berry, D and Tracy Robinson (Caribbean Law
Publishing Company, 2013)
27
Lewis, Gordon K, ‘The Social Legacy of British Colonialism in the Caribbean’, New World Journal,
1967 Available at https://newworldjournal.org/independence/the-social-legacy-of-british-colonialism-in-
the-caribbean/ [This article was extracted from a book by Professor Lewis on The Growth of the Modern
West Indies published by Monthly Review Press, 1967. Documentation provided in the book has been
omitted in this presentation.]
The English Antillean society has to be seen as an integral part of the larger Caribbean
society. At the same time it possesses, of course, its own unique characteristics. For each
metropolitan culture-system left its special mark upon its colonial subjects, the French in
Martinique, the Dutch in Suriname, the Spaniards in Cuba.
Dr. Elsa Goveia has used her book Historiography of the British West Indies to
unpack how long it took for the exaggerated racism of the pro-slavery creed to disappear
from nineteenth-century literature. Territories like Jamaica and Barbados met
Emancipation with systematic opposition, and some of the harshest passages of Sewell’s
remarkable volume, The Ordeal of Free Labour in the British West Indies, published
as a warning to the American Southern plantocracy on the very eve of the Civil War,
were reserved for the Bourbon intransigency of the Barbadian white oligarchy in whose
field of values, as he remarked, even remote descent from an African ancestor made
some unhappy creature a pariah in that Island’s little world.
The general outcome was that the society remained, after 1834, and well on into the
modern century, a basically disorganised society, with very few common values rooted
in common experience. The social differentiations, based partly on property, partly on
colour, remained fairly static for nearly a century, with the tempo of slow change
quickening somewhat during the nineteen-twenties and undergoing marked acceleration
28
during the nineteen-thirties. Each group “knew its place”. Many historians have worked
extensively in highlighting the withstanding prevalence of a skin colour dominated
society.
Malcolm, Howard N. ‘Towards the emergence of an Anglo-West Indian Jurisprudence.’ West Indian Law

Journal 18 (1993): 53–75.
Mohamad, Tun & Trakic, Adnan. The reception of English law in Malaysia and development of the
Malaysian common law (2015) 44 Common Law World Review 123-144. Available at
https://www.researchgate.net/publication/277885812_The_reception_of_English_law_in_Malaysia_and_
development_of_the_Malaysian_common_law
29
Philips, Anthony De V Philips, ‘Doubly condemned: adjustments to the crime and punishment regime in
the late slavery period in the British Caribbean colonies (1996) 18 Cardozo L.R. 699
Philips, Anthony De V Philips, ‘Emancipation betrayed? Social control legislation in the British
Caribbean (with special reference to Barbados), 1834 – 1876 (1995) 70 Chicago-Kent Law Review 1349
Case: Mabo v Queensland (No.2) HCA 23, (1992) 175 CLR 1 [uploaded to e-learning]
30
Issue: Whether the Meriam people did have traditional rights and interests in
the land of the Murray Islands and, if so, whether Australian law would protect those rights
and interests.
The Murray Islands lie in the Torres Strait, at about 10 degrees S. Latitude and 144 degrees E.
Longitude. The biggest of these islands was Mer.
The Meriam people were entitled to the land against the occupation, possession, use and enjoyment of
the land of the Murray Islands in the Torres Strait. They were in occupation of the islands for
generations before the first European contact
This case recognized the native titles as reflecting the ownership of lands by indigenous peoples and
relinquished the terra nullius tradition. Terra nullius-nobody's land
Findings presented in the case:

Communal life is a predominant feature of the society. Behaviour was regulated in the interest of the
community.
Initial European contact was rare in the early 19th century.
Although the Murray Islands, prior to their annexation to Queensland in 1879, were not part of her
Majesty's dominions, Imperial and Colonial authorities were concerned for the maintenance of order in,
and the protection of the indigenous inhabitants of, those Islands and other islands in the Western
Pacific.
It seems that the Queensland authorities exercised some de facto control in the 1870s over islands in the
Torres Strait which were not part of that Colony's territory.
The Queensland Government passed the Queensland Coast Islands Declaratory Act in 1985.
The Murray Islanders argued, among other things, that the 1985 Queensland Act denied them equality
before the law and the enjoyment of their right to own property and arbitrarily deprived them of their
property.
By a majority of 4-3, the High Court held that the Queensland Coast Islands Declaratory Act was invalid
because it was inconsistent with the RDA. It discriminated against the Meriam people by purporting to
extinguish any rights they might have in their land.
Decision:
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The court held that the Crown's title to the Mer Islands was held subject to the rights and interests of the
Mer Islanders possessed under the traditional laws acknowledged and the traditional customs observed
by the indigenous inhabitants.
The courts also found that because the native title is held in accordance with the local native system:
1. it is only capable of entitlement and enjoyment within that system, and hence it is not capable of
alienation or assignment;
2. It does not constitute a legal or beneficial estate or interest in the land
Idowu William, 2004, “African Philosophy of Law: Transcending the Boundaries between Myth and
Reality” in Enter Text, On-line Journal, An Interactive Interdisciplinary e-Journal for Cultural and
Historical Studies and Creative Work, Vol. 4, No. 2, pp. 52-93. < https://www.brunel.ac.uk/creative-
writing/research/entertext/documents/entertext042/William-Idowu-African-Jurisprudence-Transcending-
the-Boundaries-between-Myth-and-Reality-an-essay.pdf> [Also, uploaded to e-learning]
It is widely acknowledged that the works on race and social history have a variety of projections of
Western culture superiority. These projections are, in part, aimed at creating negative stereotypes of
African people.
Eurocentrism is produced when third world structures are treated as phenomena to be judged by Western
standards. At best, their perceived development is rationalized or even denigrated.
The African predicament is often portrayed as a myth, as it is based on the assumption that African
history is not real. This is, however, an aspect of African life that is subject to the harassment of
Eurocentrism
The common denominator of the African predicament is the perception that African nations have no
history. This is often portrayed as a myth, and it has resulted in a torrent of dismal interpretations.
African jurisprudence seems to be engrossed in the quest for pertinence. Its counterpart in this quest for
significance and relevance is the controversy over whether there exists an African philosophy. There are
quite a several myths cast around the project that requires serious examination.
The first is that Africans do not have a distinct history apart from the history of contact with the West.
The second is that whatever African history or past Africans have, can be fruitfully considered as part of
the European history of Europeans in Africa. The loss of all that is African would offer no memorable
deduction from anything but earth's black catalog of crimes. Such prejudicial assertions about the
African past are not only mythical but also empirically false. Ancient civilizations had the hub of their
activity and operations built and constructed around African cultures, empires, and kingdoms. The
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significance of ancient Egyptian history, civilization, and kingdom for African history is three-fold.
The significance of ancient Egyptian history, civilization, and kingdom for African history is three-fold.
First, it shows that Africans have a distinct history that is their own. Second, it proves the point that
African history (and philosophy) has always had a strong connection, not dependence, with other
continents.
Hegel argued that Africa must be divided into three parts and that Egypt was not part of the African
Spirit. Much of what is loaded in Hegel's claim is tastelessly deliberate and a premeditated prejudice,
say Egyptologists.
Hegel argued that Black Africa and Egypt share a similar linguistic community. He argued that the
Egyptian civilization of 3400-343 BC was essentially African. It is yet to be proved, scientifically, that
the Jewish, Egyptian, and Berber languages have not descended from a common ancestor.
The African person and mind, it is not preposterous to argue, is not a modern or European invention but
a product of a particular, distinct and significant history. Prejudices are born in the minds of men and as
such may be heavily situational, situational, and contextual.
Any serious scholarship on the place of law in African realities must of necessity raise questions about
prevailing concepts and theoretical approaches. The architecture and furnishings of jurisprudential and
legal research have been by and large distilled from European and U.S. experiences.
The myth that Africans have little or no system of laws before the encounter with Europe is gravely
prejudicial. As argued by Sobande, three points of wisdom were the constituents of both traditional and
modern Yoruba society. The two functions of law in any human society are the preservation of personal
freedom and the protection of private property.
The absence of written forms of law furthers the communal feelings and belongingness such that anyone
trying to break the law is often helped and warned by fellow citizens. Oowe, i.e. collective or communal
help, is on the one hand a social concept, but on the other, it is essentially an agricultural engagement.
Max Gluckman argues that Africans had held a theory of law and government similar to that of Albert
Venn Dicey. The Barotse have a clear idea of natural justice, which they apply in their courts, he writes.
The third myth concerning African jurisprudence is the view that African philosophy has no respect for
individual rights. There is wide general recognition of the rights of the individual in African law. The
individual safeguards his rights within the ambiance of the communal life and spirit.
Dlamini, argues that African law's emphasis on collective and social cohesion is not at the expense of
the rights of the individual within that community. This debunks the revered and exaggerated opinions
of Fortes concerning the philosophy of society held by the Tellensi of Northern Ghana in West Africa.
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that the individual is treated as a legal subject in African law.
For example, when an individual has committed a crime, within the structure of law operative in that
society, he is punished for the offenses committed. But the most important truth about sage philosophy
is that it is individualistic, not corporate.
The individual in African society “develops the sense of duty and obligation to live and work for the
whole” but then it does not in any way vitiate the rights, obligations, and responsibility of the individual
in the African philosophy of law and society.
Among the Yoruba people, the adage ko ju ma ribi ese loogun re means that “the foot is the answer if
the eye would avoid mischief,” i.e. in situations of danger or crisis, one is expected to take appropriate
action.
The brand of individualism encouraged and emphasized in the African philosophy of society is one that
detracts completely from what C. K. Anyanwu branded as “psychic dissociation” in the society.
The fourth myth concerns the claim that the African philosophy of law is positive and not negative.
The implication for African law, reasons Driberg, consists in the fact that African law is a weak
instrument for curtailing crimes and criminal offenses in society.
In general, it is a necessary condition that laws in every human community respond to both positive and
negative aspects.
In an important sense, therefore, Yoruba jurisprudence recognizes and incorporates the salience of
punishment in any criminal matter.
Without names, where crimes are committed, it becomes very difficult to isolate and identify the culprit
for punishment.
The impossibility of the converse also stands.
Bertrand Russell was credited with the saying that fear is the basis of religion. This insalubrious
comment on religion, in general, has become associated with the practice of religion in Africa.
To this end, it is equally believed that every sphere of African possibility is influenced by religion.
” It is in the light of this that M’Baye contended that the basis of obedience or obligation in African legal
34
theory as a whole could be traced to a belief in “the will of the gods and the wishes of the ancestors.
These two ideas are different but are often conflated.
Fear of supernatural beings amongst Africans holds, but then it is restricted to areas of breach of sacred
rules of rituals and religion popularly called taboo.
According to him, the “breach of tribal customs is prevented by a special machinery, the study of which
is the real field of primitive jurisprudence.”
The sixth myth concerning the African conception of law centers on its so-called unity.
At best, the objection to this dimension of African law is often paraded in the denial of the existence of a
common African legal culture, African legal tradition, etc.
On another level, these myths offer somewhat effective stratagems to evade taking responsibility for the
often philosophically unsound melange their authors serve up as “African philosophy.
But nothing can be farther from his intention than this.
According to Nwakeze, the problem of Taiwo in understanding Okafor’s paper is the failure to admit or
understand the idea of conceptual dualism concerning Okafor’s use of terms such as African culture,
values, etc.
It is possible, and quite correct too, to talk of African culture, African legal tradition, African
personality, African socialization, norms, and values, etc.
The next myth concerning African jurisprudential thoughts concerns the misconception in some
quarters that the traditional political institutions on which the African conception of law was based were,
strictly speaking, authoritarian, despotic, and non-democratic.
These are the two hallmarks of democracy in the world today.
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This is one of the institutional checks against the excesses of the ruler or king.
Yoruba history is replete with dramatic instances of such institutional checks and balances. This is what
Elias meant when he wrote that African governments had evolved elaborate mechanisms for the control
of the evolution of “monarchical absolutism and political tyranny.
African jurisprudence, no doubt, shared and still shares part of that triumph
It is equally untrue in the light of the history of the world.
Of central interest is the racist thought of David Hume in the eighteenth century.
In his words, It is universally acknowledged that there is a great uniformity among the actions of men, in
all nations and ages, and that human nature remains still the same, in its principles and operations.
The same motives always produce the same actions: the same events follow the same causes.
In Taiwo’s words, I submit that one source for the birth certificate of this false universal is to be found
in Georg Wilhelm Friedrich Hegel’s The Philosophy of History... The ghost of Hegel dominates the
hallways, institutions, syllabi, instructional practices, and journals of Euro-American philosophy.
The only essential connection that has existed and continued between the Negroes and the Europeans is
that of slavery ... In significant senses, therefore, Humean and Hegelian notions and prejudice about
Africa are not founded on anything empirically true—not on observation, experience, or empirical
history—but derive their connection from the issue of slavery and the distorted interpretations of history
There are at least two sets of factors that can be generally adduced in any meaningful, scholarly work, as
having contributed to the mythical representation of African legal theory in general jurisprudence and
legal scholarship.
The first derives from the alleged question or fact of ignorance about the ability of the African to
ratiocinate and thus engage in conceptualizing the notions of law, or any other subject of intellectual
36
endeavor, for that matter.
More precise, however, is the view that the recourse to ignorance as a factor responsible for the myths of
African legal theory does not capture the force of its absence.
Our feeling is that ignorance is not alone in this task.
Elias sums it up in the following observation.
The absence of the former does not preclude the latter and conversely, the absence of the latter equally
does not preclude the presence of the former.
The problem of the twentieth century, as William DuBois conceived it “is the problem of the color line
—the relation of the darker to the lighter races of man in Asia and Africa, in America and the Islands of
the Sea.
Beneath Western historiography is the attempt to depersonalize and dehumanize the identity of the
African.
One of the methods by which this project has been pursued is the subjection of philosophical ideas and
doctrines to the prevailing socio-political and economic conditions which characterize the age in which
they were invented.
Finally, the question is what is the future of African jurisprudence or philosophy of law?
This is important in the sense that one of the myths, apart from those treated above, on African law
consists in its future or salience in the present world.
More than this, the fact that nation-states themselves are getting hooked up in the phenomena of
globalization as a result of the fact that there is the change of locus of authority and claims away from
nation-states to a new center of authority, the global world order, is a telling argument that the future of
African jurisprudence is being engaged in a form of historical and interpretive reconstruction.
37
Tip: You can also read further by consulting the footnotes in chapter 5 of Belle Antoine, Rose-Marie,
Commonwealth Caribbean Law and Legal Systems (2nd ed.) (Routledge, 2008).
Cases covering various themes on historical development of law in the Commonwealth Caribbean
are provided below. These are largely not required readings.
[The value of this is that there are a few areas of law, where knowledge of the cut off date, or what
doctrines were in fact received depending on conquest or settlement will help to determine a case.
Likewise, there are some jurisdictions that have enacted legislation that provided at the time of
Independence that some statutes from English law would continue in operation if there were no local
laws, or that amendments to some English laws would become a part of the local law, even after
Settled Colonies v Conquered Colonies
Settled colonies ; colonists carried with them only so much of the English law as was applicable to their
own situation and the condition of the infant colony. The date for establishment of the colony was the due
date of the reception. Settled colony described as one where there was no previous inhabitation by
indigenous (Amerindians) or civilized people or which has been inhabited by people from imperialist
country who abandoned the territory or had been destroyed.
Settled territories includes: Anguilla, Antigua , the Bahamas, Barbados, British Virgin island,
th
Montserrat and St. Kitts (They received English common law at end of 17 century
Conquered territory refers to that which was first held by one imperialist power and which was
subsequently transferred to another imperialist, conquering power after battle.
Conquered territories are: Dominica, Belize, Guyana, Grenada, St. Lucia, St. Vincent and Trinidad and
Tobago
Levy & Wood v Administration of the Cayman Island (1952-59) CILR 42

COA held in contest for land, ownership to gov was the natural consequence of the introduction of
the common law of England by the first settlers of the island. This was because Cayman Island
was a settled colony.
R v Samuel Vaughan (1769) 1 Cowp. 204
Blades v Jaggard (1961) 4 WIR 207

Blades v Jaggard (1961) – Jaggard was the Parish priest of the St Matthias Church, an Anglican
church in the Diocese of Barbados. He gave notice to the plaintiffs are regular worshippers at said
church that permission was given by the Bishop to allow building works to be done at the Church.
The plaintiffs then filed a writ against the defendants claiming: (1) a declaration that the work was
38
irregularly or illegally executed and without valid authority because proper procedure allowing
them to voice their opinion regarding the works were not followed.
The defendants submitted that the ecclesiastical law as part of the common law of England is not
applicable to Barbados, but only such statute law as has been enacted by the Barbados legislature.
It was held that (i) that ecclesiastical law as part of the common law of England applies in
Barbados; (ii) that an applicant for a faculty must beforehand obtain the views of the parishioners
(iii) in the circumstances the alterations being carried out were irregular and without valid
authority. Judgment for the plaintiffs.
Shillingford v AG of Dominica (1967) 12 WIR 57

Land registration - appellant registered as proprietor of certain lands including lands granted by
crown subject to certain conditions – nature of estates created by crown grants – effect of
conditions on estates granted by crown – lands abandoned by grantees and subsequently occupied
by appellant's predecessors in title and appellant – right of crown to re-enter lands granted and
resume possession – effect of non-production of crown grants – whether appellant's certificate of
title conclusive as against crown – whether crown suite act 1769 [uk] in force in dominica – title
by registration ordinance, cap 222 [dominica], ss 2 (3), 7, 8, 10, 18, 19, 121 – interpretation and
general clauses ordinance, cap 67 [dominica], s 31 – real property limitation ordinance, cap 16
[dominica] – transfer of land statute 1866 [victoria], ss 47 and 49 – land transfer act 1890
[victoria], ss 69, 74 – land transfer act 1875 [uk], s 7 – land registration act 1925 [uk], s 5 – crown
suits act 1769 [uk] – royal proclamation of 7
Kodeeswaran v AG (1970) AC 111

The appellant, a civil servant, sued the respondent, as representing the Crown, for the balance of salary due to him as
an increment but which was denied to him by the government because he did not pass a test in the Sinhala language as
required by a Treasury Circular issued in implementation of the Official Language Act, 1956. The suit raised
constitutional issues on the validity of the Act and the Treasury Circular, but the present appeal dealt only with the
preliminary issue of whether a civil servant had a right of action against the Crown for salary due in respect of services
which he had rendered. The District Judge held in favour of the appellant. The Supreme Court reversed that decision.
On appeal:-
Held, that under the common law of Ceylon an action did lie at the suit of a civil servant for remuneration
agreed to be paid to him by the terms of his appointment and remaining unpaid as arrears of salary which
accrued due during the currency of his employment (post, p. 1121A-B).Judgment of the Supreme Court of
Ceylon set aside and case remitted for further consideration on constitutional issues
Reception by Local Legislation

Reception of Law
39
• Legal systems in the Caribbean belong essentially to the common law legal tradition with some
historical linkage to the civil law legal tradition
• Legal system born out of colonialism where law was transplanted to the region
• Reception of law doctrine is where legal phenomena which were developed in a given
environment are consciously exported to another environment
It excluded the borrowing of jurisprudence that is case law or statute from countries other than the UK
Foreign jurisprudence can be applied with modifications through Use of words
Imposition – keeping with an accurate record of the history of the Caribbean which was neither peaceful
nor benevolent. Imposition is used to describe the transplantation of law during colonialism
Reception used in case law and other sources to retain integrity of the sources. Ideally used for the
concept of "borrowing "
Rudling v switch- when a king or queen conquers a country, he or she gains the right and property on
people and may impose laws as he pleases
Supreme Court of Judicature Act (1962) s.12 (Trinidad)

12. Subject to the provisions of any written law in operation on 1st March 1848, and to any written law passed
after that date, the Common Law, Doctrines of Equity, and Statutes of general application of the Parliament of the
United Kingdom that were in force in England on that date shall be deemed to have been enacted and to have
been in force in Trinidad as from that date and in Tobago as from 1st January 1889.
Jemmott v Phang (1963) 6 WIR 88

From Prof Belle Antoine - Here the issue was whether s 18 of the Gaming Act of the UK applied
to Trinidad and Tobago. The court held that the Act should apply. Section 12 of the Trinidad and
Tobago Judicature Act of 1962 provides that:
Subject to the provisions of any enactment in operation on the first day of March 1848 and to any
enactment passed after that date the common law doctrines of equity and statutes of General
Application of the Imperial Parliament that were in force in England on that date shall be deemed
to have been enacted and to have been in force in Trinidad as from that date, and in Tobago as
from the 1st of February, 1889.'.
This, therefore, was a reception of the law clause embodied in the Trinidad and Tobago legislation.
Rose v Chung (1978) 27 WIR 211

Rose and others v Chung and others- contains an exhaustive account of the application of the
reception of English law doctrine in Jamaica, some of which is reproduced here. Jurisdiction of the
court was questioned as to its power to grant damages either in lieu of or in substitution for
specific performance. It therefore found it necessary to consider the reception doctrine
40
R v Commissioner of Police ex p Cephas (No. 2) (1976) 24 WIR 402

• R v Commissioner of police and others- reasoning on the subject of applicability of an
English Statute to Jamaica. Court concluded that it is necessary to trace cases judicially decided in
Jamaica in which English statutes up to 1728 were esteemed, used and accepted to come to a
decision as to whether a particular English statute applied to Jamaica. Held that as a colony and
partial self governing colony, Jamaica continued to be bound by the development of the law and
equity by the doctrine of stare decisis until the country became an independent nation. It was found
that the court did no more than consolidate existing jurisdiction in one Supreme Court and to vest
in the court and every judge, powers of law and equity in civil cases. No new rights were created.
Reception or Imposition
Nyali v A.G. (1955) ALL ER 646 at 653
Nyali Ltd v Ag- lord Denning used transplantation
Kaadesevaran v A.G. (1970) AC 1111 at 1116

In Kaadesevaran v AG,6 Lord Diplock explained that ‘in the case of most former British colonies . . . the
English common law is incorporated as part of the domestic law of the new independent State because it
was imposed upon the colony” The discussion on reception thus centres around the transplantation of the
English common law. The attitude toward the imposition of English law is important in deciding to what
extent English law informs or should inform the law of the Commonwealth Caribbean in form and
substance……..While the original dependency and ‘Britishness’ of our law and legal system is accurately
attributed to the colonial policy of imposition, it cannot fully excuse the continuance of these attitudes in
modern, independent societies.
Rose-Marie Belle Antoine. Commonwealth Caribbean Law and Legal Systems (2nd ed, Routledge 2008)
p74
The Date of Reception

Blades v Jaggard (1961) 4 W1R 207
41
This case deals with the date of reception in Barbados. In this case, 1625 was the date accepted by
the courts but others argue that reception occurred in 1628 when the Montgomery Patent was
imposed as this established Crown control.
Shillingford v. A.G. of Dominica (1967) 12 W1R 57

From Prof. Belle Antoine - Where the date is contentious, the effect could be that English law
could be ignored to prevent the anomaly of the territory being pinned to ancient statute. This
occurred in Shillingford v AG of Dominica. Here, the Court of Appeal of the West Indian
Associated States found no evidence that English Acts were treated as in force in Dominica before
1775.
Jemmot v Phang (1963) 6 W1R 36

By s 4 it was provided that no Act passed by that Parliament after its enactment “shall extend, or be deemed to extend,
to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has
requested, and consented to, the enactment thereof”. Moreover, except for the self-governing dominions therein
specifically named, the United Kingdom Parliament thereafter continued to be constitutionally competent, if and
whenever it might be deemed appropriate, to enact legislation having force and effect in the dependent or not-fully-
independent territories under the sovereignty of the Crown.
s 19 of the Judicature Ordinance, Cap 3, No 1 [T], which that Act repealed, provides that: 'Subject to the provisions of
any enactment in operation on the 1st of March, 1848, and to any enactment passed after that date, the Common Law,
Doctrines of Equity, and Statutes of general application of the Imperial Parliament that were in force in England on that
date shall be deemed to have been enacted and to have been in force in Trinidad as from that date, and in Tobago as
from the 1st of February, 1889.'
The Local Circumstances Rule

Nyali Ltd v AG (1955) All ER 646
Following debate in Parliament over the need to establish a second bridge to link Mombasa Island with the Mainland,
where, according to the Hansard, the Members of Parliament acted on information that the ex parte applicants parcels
of land were on a road reserve and resolved that the apartments on the ex parte applicant’s parcels of land be
demolished to clear way for the building of the bridge. Soon thereafter the 1st Respondent moved to give notice to the
ex parte applicants to demolish the buildings on the suit properties and marked the areas to be demolished by placing
42
large X marks on the properties.
The response: Firstly, the suit properties are freehold titles that were registered under the Land Titles Act and not the
Government Land Act. 1 They were not subject to a lease that would revert back to the government at some date in the
future. On the contrary, the certificate of title under the Land Titles Act granted them inviolable rights to use the whole
area that the Suit properties covered. There were accordingly no roads on the properties that were proclaimed or
reserved. Therefore, the provisions of section 85 of the Government Land Act that protects proclaimed and reserved
roads do not apply to this case. Titles to the suit property were however issued in 1935 even before the LG Act came
into existence. The area was therefore private property and not a public street as alluded by the Respondents.
Moreover, even when the “old Nyali Bridge” was in existence the Suit properties were still private property and the
bridge was being maintained by a private entity. 2 Therefore, the above provisions of the LG Act on public streets and
roads do not apply in this case.
The Bridge that used to be on the tamarind property was actually a private bridge which had been built by Nyali Ltd
which used to own the property in the early 1930s. The reason why Nyali Ltd. had built the bridge was to transport
their sisal product from the Mainland to the Island. The company used to charge - toll fee to citizens to use the bridge.
This reflected in the case of Nyali Ltd. v. AG {1955] ALL ER 646 where it was held that the bridge was a private
bridge.
Republic v Kenya Urban Road Authority & 2 others Ex parte Tamarind Village Ltd [2015] eKLR
Nyali Ltd v Ag - ‘Wise Provision’ - the task of making qualifications of English law to suit the circumstances of
overseas territories calls for wisdom on the part of their judges. As to the application of the common law in a
f2qawaEoreign jurisdiction, the court recognised the wisdom of applying the common law qualified as necessary to suit
the local circumstances.
Meanwell v Meanwell (1941) 2 DLR 655
43
A.G. v. Stewart (1817) 2 Mer 143 35 ER 895
Leong v Lim Beng Chye (1955) A.C. 665

From Prof. Belle Antoine - The test for determining the degree of suitability was put forward in
Leong v Lim Beng Chye. Here, the Privy Council held that a rule of law should not be held
inapplicable to local circumstances unless some solid ground is established to show an
inconsistency with the settlers’ needs.
Alteration of received law by subsequent local legislation
Colonial Laws Validity Act, 1865 (28 & 29 Vict. c. 63)
Cooper v Stuart (1889) 14 App. Cas 286

The Governor of the colony, before 1824, had made a land grant that was subject to a reservation that the
government could reacquire, at any time, a portion of the land that might be needed for public purposes.
The landowner argued that this reservation was invalid because it was against a long-standing principle of
property law known as 'the rule against perpetuities'. The Privy Council eventually held that the reservation
was valid, but they first had to decide whether the laws of England operated in the colony at the time of the
grant. They held that New South Wales should be treated as a settled colony as at 1788, such that applicable
English law arrived with the first settlers. They so held on the basis that the land was 'practically
unoccupied without settled inhabitants'.
(1) When there are no land laws in a colony at the time of annexation, transactions relating to land are
governed by English law, so far as that law can be justly and conveniently applied, including the rule as to
44
perpetuities as between subject and subject.
(2) The reservation of a power in a Crown grant of land in New South Wales, made in 1823, to resume a
portion of the land for public purposes is not repugnant to the grant, and, if the rule as to perpetuities is
applicable to the Crown in England, it is not applicable to the Crown in that colony
Boodram v AG of TT (1999) 1 WLR 1709

In the case of Boodram v. Baptiste [1999] 1 W.L.R. 1709 the Privy Council rejected an argument that
execution by hanging violates the prohibition on cruel and unusual punishments in the Bill of Rights
1689 despite compelling evidence that hanging often involves unnecessary pain and suffering for the
prisoner.
Phillips v Eyre (1870) LR 6 QB 1

Case summary: The plaintiff had been arrested in Jamaica during a civil uprising. When he
returned to England, he sued the governor of Jamaica in England for false imprisonment and
assault.
The court considered the rule of double actionability. The court laid down the test for whether a
tort committed abroad was actionable in this jurisdiction, Justice Whiles stated ,‘As a general rule,
in order to find a suit in England for a wrong alleged to have been committed abroad, two
conditions must be fulfilled. Firstly , the wrong must be of such a character that it would have been
actionable if committed in England.
Secondly, the act must not have been justifiable by the law of the place where it was done.’
Rule : When a tort has been committed on foreign soil, it cannot be brought on home soil unless it
was actionable if it had occurred on home soil, and without legal justification at the place it
occurred.
Li Hong Mi v AG of Hong Kong (1920) AC 735

Case Summary: The appellant, who was a natural-born British subject, had been employed as Government interpreter
in the Police and Supreme Courts for many years. He subsequently entered the service of solicitors practising in the
colony. On November 2, 1917, the Governor made an order for his arrest and detention for six days. On December 21
the appellant brought the action out of which this appeal arises. On January 15, 1918, the Governor in Council made
an order under s. 4, sub-s. 11, of the Ordinance prohibiting the appellant from being within the colony for the space of
fifteen years. The grounds on which this order was made were stated in accordance with form No. 7, as required by s.
4, sub-s. 14 (13), to be that the appellant had made a practice of champerty, the institution of fraudulent claims, the
preparation of false evidence, the improper exploitation of litigants, and the dishonest conduct of litigation and of the
45
proceedings incidental thereto; and that he had been guilty of the following misconduct: "(a) Champerty, the
institution of a fraudulent claim, and the preparation of false evidence, in connection with O.T. action No. 247 of
1913. Un Takkwong v. Un Ting Tsun. (b) Champerty and the improper exploitation of litigants in connection with O.T.
action No. 105 of 1912. Ho Chiu-lam v. Ho Ngok-Lau." The statement of claim in the action was delivered on March
7th, 1918. The appellant was to face a sum of 15 years of deportation from Hong Kong, China because it was alleged
that he had made a general practice of champerty and other forms of misconduct. In proceedings under s. 4 of the
Deportation Ordinance, 1917, of Hong Kong, for the person against whom the proceedings are taken, and the order of
deportation under sub-s. 14 (11) (13), and Form No. 7, must state a specific offence or misconduct within sub-s. 14
upon some particular occasion. On 26th and 27th February, 1920, Douglas Hogg K.C. and Sir Albion Richardson
represented the appellant. Their argument: The deportation order was invalidly made, having regard to the
construction of the Deportation Ordinance, 1917. On November 5th 1917, the Secretary for Chinese Affairs
interviewed the appellant, but the report was never submitted to the Courts. Their Lordships came to the conclusion
that the allegations were sweeping or general and the Ordinance speaks to specific crimes done by a British subject.
Their Lordships therefore humbly advised His Majesty that the provisions of the Ordinance have not been complied
with, and that the judgment of the Supreme Court of Hong Kong, dismissing the action.
In re The Queen v Marais (1902) AC 51
Liyanage v The Queen (1967) 1 AC 259

Case Summary: The parliament of Ceylon made a law that retrospectively created new
crimes so as to punish those who attempted a coup d’etat, saying it worked
retrospectively and that it would cease to function as a law once court proceedings
ended against the perpetrators of the coup d’etat. This act legalised holding Ds without
warrant for arrest or trial for longer than the period allowed by law, altered the law of
evidence so as to ensure their conviction and made admissible to the court statements
made by them that would normally have been inadmissible AND it specified what
punishments should be given to them. The Privy council (NB NOT binding on UK
courts) rejected the argument that Ds should be acquitted on grounds of natural justice
but did quash the convictions because the act of the Ceylon parliament usurped the
judicial function of the courts, making a law specifically for punishing Ds, and thus
breaching the separation of powers which was enshrined under the constitution of
Ceylon.
(Ceylon) The appellants had been convicted of grave criminal offences under laws of the
Parliament of Ceylon. The Act under which they were convicted was passed after an abortive
46
coup, and deprived the appellants retrospectively of their right to trial by jury providing for their
trial by three judges appointed by the Minister, imposed a minimum sentence of ten years, and
provided for forfeiture of their property.
Held: The convictions were quashed by the Privy Council on the footing that the laws offended
against Ceylon’s written constitution. It offended fundamental principles which had been inherited
into the Ceylon constitutional framework. The Ceylon (Constitution) Order in Council, which
contained the phrase ‘laws for peace, order and good government’ coupled with the Ceylon
Independence Act were intended to and did give the full legislative powers of a sovereign
independent state. The Independence Act provided for certain limits on UK legislation which had
previously been enacted and for the removal of a bar to enactments repugnant to UK laws.
‘Therefore the legislative power of Ceylon is still limited by the inability (which it inherits from
the Crown) to pass laws which offend against fundamental principles.
Rediffusion (Hong Kong) Ltd v AG of Hong Kong (1970) AC 1136
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (2008) UKHL 61
For ease of reference, see the case in its entirety here: House of Lords - R (On The Application of Bancoult) V Secretary of State For Foreign and
Commonwealth Affairs (parliament.uk)
This appeal concerns the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004 (“the Constitution Order”):
“(1) Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and
the Government of the United States of America, no person has the right of abode in the Territory.
(2) Accordingly, no person is entitled to enter or be present in the Territory except as authorised by or under this Order or any other law for the
time being in force in the Territory.”
It is common ground that as British Indian Ocean Territory was originally ceded to the Crown, Her Majesty in Council has plenary
power to legislate for the Territory. The law is stated in Halsbury’s Laws of England (4th ed 2003 reissue) vol 6, para 823:
“In a conquered or ceded colony the Crown, by virtue of its prerogative, has full power to establish such executive, legislative, and
judicial arrangements as this Crown thinks fit, and generally to act both executively and legislatively, provided the provisions made
by the Crown do not contravene any Act of Parliament extending to the colony or to all British possessions. The Crown’s legislative
and constituent powers are exercisable by Order in Council, Letters Patent or Proclamation…”
47
The power of the Imperial Parliament to legislate for the colonies

Madzimbamuto v Lardner-Burke (1969)1 AC 645
From Prof. Belle Antoine - On the question of Zimbabwe’s independence, the Privy Council, in
Madzimbamuto v Burke, felt that Britain had the right to revoke independence, within the context
of Zimbabwe’s struggle for political freedom.
The power of the Imperial Parliament to legislate for independent former colonies
British Coal Corporation v The King (1935) AC 500
Independence – Saving of Existing Law

Trinidad and Tobago Order in Council 1962
12. Subject to the provisions of any written law in operation on 1st March 1848, and to any written law passed
after that date, the Common Law, Doctrines of Equity, and Statutes of general application of the Parliament of the
United Kingdom that were in force in England on that date shall be deemed to have been enacted and to have
been in force in Trinidad as from that date and in Tobago as from 1st January 1889.
Barbados Independence Order 1966

Provided that the Governor may at any time after 22nd November 1966 exercise any of the powers
conferred upon the Governor General by sections 4(3) and 10(1) of this Order and sections 60(1), 89(2),
90(1) and 91(1) of the Constitution set out in the Schedule to this Order (in this Order referred to as "the
Constitution") to such extent as any, in his opinion, be necessity or expedient to enable the Constitution to
function as from the appointed day.
For the purposes of the exercise by the Governor under the proviso to subsection (2) of the powers
conferred by the said sections 89(2), 90(1) and 91(1), the references therein to the Prime Minister and the
Leader of the Opposition shall be construed as if they were references respectively to the Premier and to the
Leader of the Opposition as defined for the purposes of Schedule 2 to the Barbados (Letters Patent
Consolidation) Order 1964(b); and the other powers referred to in that proviso shall be exercised by the
Governor acting in accordance with the advice of the Premier.
Save where the context otherwise requires, expressions used in sections 1 to 12 of this Order have the same
meaning as in the Constitution and the provisions of section 117 of the Constitution shall apply for the
purposes of interpreting those sections as they apply for the purposes of interpreting those sections as they
48
apply for the purposes of interpreting the Constitution.
The Barbados (Letters Patent Consolidation) Order 1964 (in this Order referred to as "the existing Order")
is revoked; but the revocation of the existing Order shall not affect the operation on and after the appointed
day of any law made or having effect as if made in pursuance of the existing Order and having effect as
part of the law of Barbados immediately before the appointed day (including any law made before the
appointed day and coming into operation on or after that day).
The British Caribbean Court of Appeal Order in Council 1962(a) (as amended by the British Caribbean
Court of Appeal (Amendment) (No. 2) Order in Council 1962(b)) is amended by the deletion of the words
"and the Chief Judge and other judges of the Island of Barbados" in paragraph (b) of article 3(1) (which
specifies the judges of which the Court consists):
Provided that, if provision is made by an order paragraph (b) of section 10(1) or by any other law for the
continuance on or after the appointed day before the British Caribbean Court of Appeal of any such
pending appeals as are mentioned in that paragraph, the, for the purposes of such appeals, Barbados shall
continue to be a Territory for the purposes of the first mentioned Order and the Chief Justice and other
Judges of the Supreme Court of Barbados shall be members of the Court ex officio.
The West Indies (Dissolution and Interim Commissioner) Order in Council 1962(c) is amended by the
deletion of sub-paragraph(b) (which specifies Barbados) of the definition of "the territories" in article 2(1);
but nothing in this subsection shall affect the operation on and after the appointed day of any law having
effect as part of the law of Barbados immediately before that day by virtue of the provisions of article 15 or
16 of that Order.
Subject to the provisions of this Order, the Constitution shall come into effect on the appointed day.
Existing laws
4.1
Subject to the provisions of this section, the existing laws shall be construed with such modifications,
adaptations, qualifications unawed exceptions as may be necessary to bring them into conformity with the
Barbados Independence Act 1966 and this Order.
4.2
Where any matter that falls to be prescribed or otherwise provided for under the Constitution by Parliament
or by any other authority or person is prescribed or provided for by or under an existing law (including any
amendment to any such a law and under this section) or is otherwise prescribed or provided for
immediately before the appointed day by or under the existing Order, that prescription or provision shall, as
from that day, have effect (with such modifications, adaptations, qualifications and exceptions as may be
necessary to bring it into conformity with the Barbados Independence Act 1966 and this Order) as if it had
49
been made under the Constitution by Parliament or, as the case may require, by the other authority or
person.
4.3
The Governor General may by order made at any time before 30th November 1967 make such amendments
to any existing law as may appear to him to be necessary or expedient for bringing that law into conformity
with the provisions of the Barbados Independence Act 1966 and this Order or otherwise for giving effect to
or enabling effect to be given to those provisions.
4.4
An order made by the Governor-General under subsection (3) shall have effect from such day, not earlier
than the appointed day, as may be specified therein.
4.5
The provisions of this section shall be without prejudice to any powers conferred by this Order or by any
other law upon any person or authority to make provision for any matter, including the amendment or
repeal of any existing law.
4.6
In this section "existing law" means any law having effect as part of the law of Barbados immediately
before the appointed day (including any law made before the appointed day and coming into operation on
or after that day).
Parliament
5.1
The persons who immediately before the appointed day are members of the Senate established by the
existing Order (in this section referred to as "the existing senate"), having been appointed as such under
sub-paragraphs (a), (b) and (c) respectively of paragraph 10(2) of Schedule 2 to that Order, shall as from the
appointed day be members of the Senate established by the Constitution as if they had been appointed as
such under subsections (2), (3) and (4) respectively of section 36 of the Constitution and shall hold their
seats as Senators in accordance with the provisions of the Constitution.
5.2
The persons who immediately before the appointed day are President and Deputy President of the existing
Senate shall as from the appointed day be President and Deputy President respectively of the Senate
established by the Constitution as if they had been elected as such under section 40 of the Constitution and
shall hold office in accordance with the provisions of that section.
50
5.3
The persons who immediately before the appointed day are members of the House of Assembly the
established for Barbados (in this section referred to as "the existing Assembly") shall as from the appointed
day be members of the House of Assembly established by the Constitution as if elected as such in
pursuance of section 41(2) of the Constitution and shall hold their seats in that House in accordance with
the provisions of the Constitution.
5.4
The persons who immediately before the appointed day are Speaker and Deputy Speaker of the existing
Assembly shall as from the appointed day be Speaker and Deputy Speaker respectively of the House of
Assembly established by the Constitution as if elected as such by that House in pursuance of any provisions
in that behalf.
5.5
Any person who is a member of the Senate or the House of Assembly established by the Constitution by
virtue of the preceding provisions of this section and who, since he was last appointed or elected as a
member of the existing Senate of the existing Assembly before the appointed day, has taken the oath of
allegiance in pursuance of paragraph 21 of Schedule 2 to the existing Order shall be deemed to have
complied with the requirements of section 59 of the Constitution relating to the taking of the oath of
allegiance.
5.6
The Standing Orders of the existing Senate and the existing Assembly as in force immediately before the
appointed day shall, except as may be otherwise provided in pursuance of section 50(1) of the Constitution,
be three Standing Orders respectively of the Senate and the House of Assembly established by the
Constitution, but they shall be construed with such modifications, adaptations, qualifications and exceptions
as may be necessary to bring them into conformity with the Constitution.
5.7
Notwithstanding anything contained in section 61(3) of the Constitution (but subject t the provisions of
subsections (4) and (5) of that section) Parliament shall, unless sooner dissolved, stand dissolved on the
expiration of five years from the first sitting of the existing Assembly after the general election of members
of the Assembly last preceding the appointed day.
Ministers and Parliamentary Secretaries

6.1
The person who immediately before the appointed day holds the office of premier under the existing Order
51
shall, as from the appointed day, hold office as Prime Minister as if he had been appointed thereto under
section 65(1) of the Constitution.
6.2
The person (other than the Premier) who immediately before the appointed day hold officers Ministers
under the existing Order shall, as from the appointed day, hold the like offices as if they had been appointed
thereto under section 65(2) of the Constitution.
6.3
Any person holding the office of Prime Minister or other Minister by virtue of subsection (1) or (2) who
immediately before the appointed day was charged with responsibility for any subject or department of
government shall, as from the appointed day, be deemed to have been assigned responsibility for the
corresponding business or department of the Government under section 72 of the Constitution.
6.4
The persons who immediately before the appointed day hold office as Parliamentary Secretaries under the
existing Order shall, as from the appointed day, hold the like offices as if they had been appointed thereto
under section 73(1) of the Constitution.
6.5
Any person who holds office as Prime Minister or other Minister or Parliamentary Secretary as from the
appointed day by virtue of the provisions of this section shall be deemed t have complied with the
requirements of section 69 or section 73(2), as the case may be, of the Constitution relating to the taking of
oaths
Leader of the Opposition

7.1
The person who immediately before the appointed day is the Leader of the Opposition (as defined for the
purposes of Schedule 2 to the existing Order) shall, as from the appointed day, hold office as Leader of the
Opposition as if he had been appointed thereto under section 74 of the Constitution.
Privy Council
8
The persons who immediately before the appointed day are members of the Privy Council established by
the existing Order, having been appointed as such under clause 3 of the Barbados Royal Instructions
1964(a), shall, as from the appointed day, hold office as members of the privy Council established by the
52
Constitution as if they had been appointed thereto under section 76(1) of the Constitution:
Provided that for the purposes of subsection (3) of that section the date of appointment of any such person
shall be the date on which the period of his last appointment under the said clause 3 commenced or was
deemed to have commenced for the purposes of that clause.
Existing judges and public officers

9.1
Every person who immediately before the appointed day holds or is acting in a public office shall, as from
the appointed day, hold or act in that office or the corresponding office established by the Constitution as if
he had been appointed to do so in accordance with the provisions of the Constitution:
Provided that any person who under any existing law would have been required to vacate his office on the
attainment of any age or on the expiration of any period shall vacate his office on the attainment of that age
or at the expiration of that period.
9.2
The provisions of subsection (1) shall apply in relation to the office of a Judge as if that office were a public
office.
9.3
Any person who, by virtue of the provisions of this section, holds or is acting in the office of the Director of
Public Prosecutions or a Judge as from the appointed day shall be deemed to have complied with the
requirements of section 79(7) or, as the case may be, section 83 of the Constitution relating to the taking
and subscribing of oaths.
9.4
In this section "existing law" has the same meaning as in section 4.
Pending legal proceedings

10.1
The Governor General may by order make such provision as may appear to him to be necessary or
expedient for:
1. the continuance on or after the appointed day before the High Court of Appeal established by the
Constitution of any proceedings pending immediately before that day before the Supreme Court of
Barbados;
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2. the continuance on or after the appointed day before the said Court of Appeal or the British
Caribbean Court of Appeal or the abetment of any appeal pending immediately before that day
before the British Caribbean Court of Appeal from the Supreme Court of Barbados;
3. the enforcement of any judgment of the Supreme Court of Barbados or the British Caribbean Court
of Appeal given but not satisfied before the appointed day; and
4. the enforcement of any judgment of the British Caribbean Court of Appeal given on or after that
day by virtue of provision made in pursuance of paragraph (b).
10.2
In subsection (1) -
"appeal" includes a case stated or question of law reserved;
"judgment" includes a decree, order, ruling, sentence or decision;
"the Supreme Court of Barbados" includes the Full Court of that Court.
10.3
The provisions of this section shall be without prejudice to the provisions of section 4 and to any powers
conferred by this Order or by any other law upon any person or authority to make provision for any of the
matters referred to in subsection (1).
Appeals to Her Majesty in Council

11.
Until Parliament otherwise provides, an appeal shall lie under section 88(1) of the Constitution from
decisions of the Court of Appeal established by the Constitution to her Majesty in Council in the cases
mentioned in paragraphs (a) and (b) of section 3 of the British Caribbean (Appeal to Privy Council) Order
in council 1962(a) as if references therein to the British Caribbean Court of Appeal were references to the
Court of Appeal established by the Constitution.
Alteration of this Order

12.1
Parliament may alter any of the provisions of this Order in the same manner as it may alter any of the
provisions of the Constitution:
Provided that section 3, section 5(1) and (7), section 9 and this section may be altered by Parliament only in
54
the same manner as the provisions specified in section 49(2) of the Constitution.
12.2
Section 49(5) of the Constitution shall apply for the purpose of construing references in this section to any
provision of this Order and to the alteration of any such provision as it applies for the purpose of construing
references in the said section 49 to any provision of the Constitution and to the alteration of any such
provision.
The reception of Common law
Reception of law as a liberating concept

• Doctrine contains within itself sufficient ammunition to liberate societies on the receiving end
from the negative aspects of the phenomenon, leaving behind only its intrinsic value
• The negative implications may culminate in the abortion of the true development of the legal
system and indeed the society
• The value of received law is the belonging of transplanted societies to a great legal tradition
• Judges must seek ways to emphasize the positive aspects of the doctrine
The rule on local circumstance can be an elastic concept as broad as the court is willing to accept it The
importance which a court is willing to give to cultural and social differences, policy and the like is surely
liked to the value that the court places on these differences to the particular society
In the Caribbean we have taken only timid steps toward this more liberating concept of receiving the law.
BB
Doctrine contains within itself sufficient ammunition to liberate societies on the receiving end from the
negati
ve aspects of the phenomenon, leaving behind only its intrinsic value
The negative implications may culminate in the abortion of the true development of the legal system and
indeed the sociey
The value of received law is the belonging of transplanted societies to a great legal traditionJudges must
seek ways to emphasize the positive aspects of the doctrine
The rule on local circumstance can be an elastic concept as broad as the court is willing to accept i
The importance which a court is willing to give to cultural and social differences, policy and the like is
surely liked to the value that the court places on these differences to the particular society
In the Caribbean we have taken only timid steps toward this more liberating concept of receiving the
law.
Mohammed v Mohammed (1965) 12 WIR 125

This case dealt with the granting of the decree absolute, in relation to divorce. The relevant rule of
law to this course and section relates to the construction of statutes which tend to incorporate the
English law in the Caribbean jurisdiction as expounded by Kelsick J in the TT High Court.
The relevant statutory provision in Trinidad defined the Trinidad Supreme Court’s jurisdiction in
this matter as being, “exercis[able] as nearly as possible in accordance with the practice and
55
procedure for the time being in force in the High Court of Justice of England, so far as such
practice and procedure is not displaced by rules of court made in pursuance of this Ordinance.”
The matter in contention was not addressed in the Trinidad Ordinance and so the case turned on
the meaning of “For the time being in force”, to determine what English law should be applied.
Kelsick J examined how the term had been used in other statutes as well as the interpretation of his
colleagues and Stroud’s Legal Dictionary. Kelsick J came to the conclusion that the English law
for the time being in force included rules of law in English cases and statutes, and that the phrase
did not represent a fixed time. Therefore, the law to be applied was not necessarily the law which
existed when the legislation was passed, but the law as it presently stands. To be clear, where there
is no provision in the local legislation which would displace the English law, then the rule of law
which is in force at the time that the instant case is being heard is the one to be applied, and not a
repealed legislation or an overturned case.
Johnson v R (1966) 10 WIR 402
Frankland v R (1987) 2 WLR 1251
Invercargill City Council v Hamlin (1966) AC 624

Facts: Hamlin built a house in 1972 in Invercargill. 17 years later in 1989, Hamlin noticed cracks
in his house's foundations. The building company no longer being in existence, he sought damages
from the local authority which had supervised the construction. A builders report revealed the
council had signed off building consent on the house when it had substandard foundations.
Hamlin sought compensation from the council, who refused to pay.
Issue: Did the council owe a duty of care for building inspections? Was the council liable even
though the event happened 17 years ago?
Held:The High Court found the council liable, and awarded damages of $53,550. The council
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subsequently unsuccessfully appealed to the Court of Appeal, as well as the Privy Council
The State v Sookraj Evans (1975) 23 WIR 189
1
The historical functions of law. Please explain the historical functions of law in the Caribbean.
For example:
● Social control – the slave plantation was a ‘total’ institution (think prison or an asylum) with
limited privacy so all aspects of life subsumed to a ‘single authority’, daily life exhibited in front
of each other and all daily activity tightly scheduled.
● Inequitable facilitation of the economy – the law accommodated and encouraged economic
relations between plantation owners but aimed to restrict or limit economic relations between the
enslaved
● Limitation of Cultural Expressions
● Creation and Maintenance of Racial Stratified Society
● Maintenance of Plantation Economy and Dependence between Slave Country and Mother
Country
● Limited political participation for blacks and enabled participation for whites
Philips argues that slaves were “doubly condemned”. What does that mean?
Slaves were subject to punishment on each plantation and also to punishment by the public
authorities. They were condemned through substance as well as through process.
Philips argues that the dominant white elite controlled the system of administration of “justice”
with the “blindfold off”. What does that mean?
The planters and the political elite generally legislated new forms of labour coercion in an effort
to counteract freedom and maintain the viability of the plantation enterprise. The law
traditionally reflected the socio-economic needs of the law-making class and did not cater to the
needs of the slaves.
Slaves were subject to judgement without trial as the law did not allow slaves to be tried by a
jury. Often times slaves were served harsher penalties than the whites as magistrates had the
57
jurisdiction to punish offenses as they saw fit.
The historical functions of law can in part be understood through the doctrine of reception and the
significance of that doctrine. The functions were deeply interwoven with colonialism, racism and
dispossession. Consider the following from this brief article below "Doctrines of Dispossession" -
Racism against Indigenous peoples.”8
The Phantom of Racism - Racism and Indigenous Peoples

“Racism has historically been a banner to justify the enterprises of expansion, conquest, colonization and
domination and has walked hand in hand with intolerance, injustice and violence." - Rigoberta Menchú
Tum, Guatemalan Indigenous Leader and Nobel Peace Prize Laureate- "The Problem of Racism on the
Threshold of the 21st Century"
“Historians and academics agree that the colonization of the New World saw extreme expressions of
racism - massacres, forced-march relocations, the "Indian wars", death by starvation and disease. Today,
such practices would be called ethnic cleansing and genocide. What seems even more appalling for
contemporary minds is that the subjugation of the native peoples of the New World was legally
sanctioned. "Laws" of "discovery", "conquest" and "terra nullius" made up the "doctrines of
dispossession", according to Erica Irene Daes, chairperson/rapporteur of the United Nations Working
Group on Indigenous Populations, in a study on indigenous peoples and their relationship to land.”
Specifically, in the fifteenth century, two Papal Bulls set the stage for European domination of the New
World and Africa. Romanus Pontifex, issued by Pope Nicholas V to King Alfonso V of Portugal in 1452,
declared war against all non-Christians throughout the world, and specifically sanctioned and promoted
the conquest, colonization, and exploitation of non-Christian nations and their territories. Inter Caetera,
issued by Pope Alexander VI in 1493 to the King and Queen of Spain following the voyage of
Christopher Columbus to the island he called Hispaniola, officially established Christian dominion over
the New World. It called for the subjugation of the native inhabitants and their territories, and divided all
newly discovered or yet-to-be discovered lands into two - giving Spain rights of conquest and dominion
over one side of the globe and Portugal over the other. The subsequent Treaty of Tordesillas (1494) re-
divided the globe with the result that most Brazilians today speak Portuguese rather than Spanish, as in
the rest of Latin America. The Papal Bulls have never been revoked, although indigenous representatives
have asked the Vatican to consider doing so.
These "doctrines of discovery" provided the basis for both the "law of nations" and subsequent
international law. Thus, they allowed Christian nations to claim "unoccupied lands" (terra nullius), or
lands belonging to "heathens" or "pagans". In many parts of the world, these concepts later gave rise to
the situation of many Native peoples in the today - dependent nations or wards of the State, whose
ownership of their land could be revoked - or "extinguished" -- at any time by the Government.
Indigenous leaders today contend that it is essentially discriminatory that native title does not confer the
same privileges as ordinary title. According to Mick Dodson, an Australian Aboriginal lawyer, the
concept of extinguishment "treats indigenous rights and interests in land as inferior to all other titles".
According to indigenous law and custom, indigenous interests can only hold native title, and, according
8
Available at: https://www.un.org/WCAR/e-kit/backgrounder4.htm
58
to the law put into place since then by the European immigrants, native title can be extinguished.
The United Nations first focused its attention formally on the problems of indigenous peoples in the
context of its work against racism and discrimination.
In 1970, the Subcommission on Prevention and Discrimination and Protection of Minorities (a subsidiary
body of the Commission on Human Rights) commissioned Special Rapporteur Martinez Cobo of Ecuador
to undertake a study on "The Problem of Discrimination against Indigenous Populations". That
monumental study, completed only in 1984, carefully documented modern discrimination against
indigenous peoples and their precarious situation. His report catalogued the wide variety of laws in place
to protect native peoples: some of these were discriminatory in concept, and others were routinely
disregarded by the dominant community. It concluded that the continuous discrimination against
indigenous peoples threatened their existence…..
World Conference against Racism
The problems indigenous people face will be high on the agenda of the World Conference against
Racism, Racial Discrimination, Xenophobia and Related Intolerance set to take place from 31 August to
7 September in Durban, South Africa. At that meeting the international community is expected to
broaden its focus on the wide variety of modern forms of racism and discrimination. The title of the
Conference makes it clear that the fight against racism is more than just about colour.
What is the relationship between these histories and present global protests? Are there any connections?
We will discuss these in tutorials. Think about the legal, financial, cultural significance of these
foundations. Using HeinOnline or Google Scholar, find an article that addresses the significance in the
contemporary moment. All you are expected to do is the AIC (Abstract Introduction Conclusion)
method for this purpose. Read the Abstract, Introduction and Conclusion and determine whether
the article is relevant.
The relationship between them is that the present global protests are in fact a result of history, as racism has only been
magnified in today’s world to a point where these protests are necessary. In history there were also the laws made and
abided by that encouraged and allowed the racist ideals, and even though some of those laws have been abolished its
practise has becom cultural making it tradition and many still uphold it.
2
What is Reception of Law?
Belle Antonine describes the doctrine of reception of law as the process whereby legal phenomena which
were developed in a given environment are consciously exported to another environment. Reception
means the transplantation of one type of law onto another. The basic condition of reception is that one law
should penetrate another law in a wider legal area. An important feature of reception is the combination
of the reception of an existing great code with that of a new method of legal thought.
59
The reception of law as we discuss therefore is a type of transplantation, though there was no equality of
this transplantation as it was a uni-directional movement; i.e. the British law was received by Caribbean
(and other colonies)
Read Mabo v Queensland (No.2) HCA 23, (1992) 175 CLR 1 - Look for this case on Justis, or
LexisNexis. Alternatively, there are websites such as Austlii, Bailii that are committed to providing
free access to judgments and laws. (Should laws and cases be freely available online in your
opinion?)
In Reading Mabo v Queensland (the judgment in some formats is 182 pages) - We are reading to focus on
the Reception of Law. You can look for Reception of Law in the Index of the Judgment, or do a search
for reception of law if you are searching online. The relevant (10 page) extract begins: “Reception of the
common law
The means by which the municipal laws of England, including the common law, became the law of a
country that had been outside the King's dominions were stated by Blackstone as follows…”
In reading the extract Mabo v Queensland answer the following:
1) What is the difference between settled and conquered territory?
Settled colonies ; colonists carried with them only so much of the English law as was applicable
to their own situation and the condition of the infant colony. The date for establishment of the
colony was the due date of the reception
Conquered territories; the colonists retained the existing legal system only in so far as it was
not repugnant to natural justice. It was retained until such time as other arrangements could be
made for English law to be introduced. The date of reception is the date which the crown directed
that English law come into operation
2) What is the doctrine of terra nullius?
The Doctrine of Discovery was the principle used by European colonizers starting in the 1400s in
order to stake claim to lands beyond the European continent. The doctrine gave them the right to
claim land that was deemed vacant for their nation. Land was considered terra nullius (vacant
land) if it had not yet been occupied by Christians. Such vacant lands could be defined as
“discovered” and as a result sovereignty, title and jurisdiction could be claimed. In doing so the
Doctrine of Discover invalidated the sovereignty of Indigenous nations and gave Christians the
right to subjugate and confiscate the lands of Indigenous Peoples.
3) What was the view of European peoples of other peoples? Do you think this doctrine preceded
contact with new people or was developed in contact with these new peoples?
Throughout, the doctrine of the reception law it is considered that the view of the European was one of superiority. This
doctrine was in force prior to contact. The Europeans, according to Belle Antoine imposed their laws on the lands
which they settled or conquered as they considered indigenous people “uncivilized”.
60
4) What is the modern assessment of terra nullius?
In our society land belongs to the state and we pay taxes to own it or to exercise rights as an owner so
we end up having adverse possession.
5) What role does international law play in that reassessment.
International Law can play a vital role in cases such as Mabo v Queensland, since there are two
sources of laws that it involves: international conventions and treaties and customary international
law. In customary international law, it is a legal system that is based upon continued customs of
nation states, in which general state practice has become the rule of law. International treaties and
conventions are much clearer in their purpose and legal principles and are signed and ratified by
participating nation states.
With the above explanation of the International Law it clearly defined that or ratified that the
Aboriginal peoples were in possession of the land before the coming of the Europeans and
therefore had long possession and developing it in accordance with their customs.
https://the-role-of-international-law-in-the-development-of-australian-common-law/
Watch this clip to see the outcome of this case:
https://www.youtube.com/watch?v=yzS82Mbuhwk&ab_channel=POPHISTORY
Though that case was Australian, the experience of Colonialism and the disregard of indigenous peoples
was common across the British Empire. Summarize
Terra Nullius = Land that belongs to no-one.
Explorer James Cook (in 1770) declared Australia Terra Nullius even though indegenous peoples lived there. Eddie
Mabo et. al. filed to be the legal owners of Murray Island (part of Queensland). They lost the first case but won when
they went to the High Court to strike down the concept of Terra Nullius. In June 1992 the High Court held that the
lands were NOT Terra Nullius when the British arrived. In 1993 the legislation “Native Title Act” was passed. This has
huge implications worldwide as every colonized territory had first nations people living in them.
Consider: Cal v Attorney-General 135 ILR 77 | Cal and Others v Attorney General of Belize and another;
Coy and Others v Attorney General of Belize and another (2007) 71 WIR 110
Summary: The facts: —The claimants, members of the indigenous Maya community in Southern Belize (and,
in particular, the residents of two of the villages, Santa Cruz and Conejo, in its Toledo District) sought relief
61
from the defendants for alleged violations of Sections 3, 3(a), 3(d), 4, 16 and 17 of the Belize Constitution.
They claimed that the Government of Belize had failed to recognize, protect and respect Maya customary land
rights, which constituted property as affirmed by Maya customary law, international human rights law and the
common law.
The defendants maintained that the claimants could not claim any right or title to land based on Maya
customary land tenure. They contended that any native title had been extinguished when the British Crown
acquired territorial sovereignty in 1862 and it became the Colony of British Honduras by Letters Patent. The
Government of Belize had succeeded to that territorial sovereignty when the country became independent in
1981; thus only rights and interests in the land granted by the defendants existed.
Held:—The declarations and orders granted can be found at paragraph 136 of the judgment.
(1) Maya customary land tenure did exist in Southern Belize, in the Toledo District, particularly in the Santa
Cruz and Conejo villages. Since there was a tendency to use English law concepts which were inappropriate in
interpreting native title, much caution was needed. Overwhelming evidence from Maya and expert witnesses
with relevant knowledge of Maya history, ethnography, culture, land tenure and land use patterns supported
Maya customary land tenure, as did the finding of the Inter-American Commission on Human Rights in the
Maya Indigenous Communities case9 which, although not binding, could be persuasive since Belize was a
member of the Organization of American States and therefore a party to the American Declaration of
the Rights and Duties of Man, an international treaty within the proper remit of the Commission (paras.
13–49).
3) The acquisition of sovereignty over Belize by the British Crown and later independent governments had not
extinguished the claimants' native title. 11 Neither did the system of reservation by the several Crown Lands
Ordinances nor the succeeding National Lands Act 1992 extinguish those pre-existing rights and interests in
the land. The radical title vested in the defendants was burdened by those rights (paras. 69–93).
62
(4) The claimants' interests in land based on Maya customary land tenure constituted “property” protected by
Sections 3(d) and 17 of the Belize Constitution. This conclusion was supported by the finding in the Maya
Indigenous Communities case and the specific reference to Belize's indigenous peoples in the amended
preamble of the Constitution. Indigenous title was now correctly regarded as sui generis12 and its nature and
incidents were to be ascertained as a matter of fact by reference to traditional laws and customs.
See: https://www.youtube.com/watch?v=mvsPaAxa2Ws&ab_channel=Channel5Belize
https://www.youtube.com/watch?v=wJ2REMjxVYk&ab_channel=PlusTVBelize
Consider: Public Counsel v Fair Trading Commission BB 2006 HC 16|| What is the relevance of the history
of the Common Law according to the Court in this judgment?
As a settled territory in the doctrine of imposition, historically the English common law was
received by Barbados through colonization. These laws, which were instituted in two different
ways; incorporation clause and proclamation, were still binding. Hence in case Public Counsel v
the Fair Trade Commission, Lord Blackman’s reasoning was that since Barbados law is based on
the English common law, the interveners were not entitled to costs.
Briefly discuss the relevance of the concept of reception to contemporary legal systems. Is the term
“reception” problematic? Understanding the historical functions of law, is “imposition” a more
appropriate term?
63
Taking a sword to the doctrine of reception - the Local Circumstances rule.

The reception of English law in Malaysia and development of the Malaysian common law by Tun Abdul
Hamid Mohamad and Adnan Trakic. Extract below.
Many judges have emphasized the need for Malaysian courts to start developing the Malaysian common
law just as some other common law countries have done since they obtained their independence.
For example, in the High Court case of Syarikat Batu Sinar Sdn Bhd v UMBC Finance Bhd, 64 the
learned Peh Swee Chin J reminded the Malaysian judges of the need to develop the Malaysian common
law by saying:
We have to develop our own common law just like what Australia has been doing, by directing our minds
to the ‘local circumstances’ or ‘local inhabitants’.
The danger of blindly following English or other Commonwealth judicial decisions without having any
regard to the local circumstances and inhabitants was also highlighted by Gopal Sri Ram JCA (as he then
was) in Tengku Abdullah ibni Sultan Abu Bakar v Mohd Latiff bin Shah Mohd.
However, as the learned judge pointed out, decisions in Malaysian cases should never be made solely by
reference to English or Commonwealth judicial decisions without taking into consideration the local
circumstances and inhabitants. This is what he said: ...
We are of the view that our courts, when faced with a case of undue influence in the sphere of the law of
contract, must primarily hearken to the words which Parliament has used to introduce the doctrine into
our jurisprudence. While we may refer to the decisions of courts of those jurisdictions where the law is
akin to our own, we must therefore ultimately have regard to the words of our own statute. In our
judgment, it would be quite wrong, and indeed wholly out of place, to decide a Malaysian case solely by
reference to English or other Commonwealth decisions. Indeed, the more recent decisions of the English
courts demonstrate that their concept of the doctrine and the relationships to which it may be extended do
not accord to the standards of our society ... Our society, on the other hand, has an entirely different set of
moral standards. It would therefore be quite wrong to blindly follow all foreign decisions if the result
64
would facilitate moral decadence within our social structure.

It seems that most of the Malaysian legal fraternity agrees that there is a dire need for Malaysian common
law, but the disagreement is over the question of how to develop it.
We argue, and many would share our views, that the existing legal framework already allows for the
development of the Malaysian common law. In fact, the Malaysian courts have been developing
Malaysian common law in the past and are continuing to do so. Any English law that has been accepted
by the Malaysian court in toto or in part crystallizes into Malaysian common law. There is nothing wrong
with accepting the English law in toto, but that has to be done in compliance with section 3(1) of the Civil
Law Act 1956. If there is lacuna in the Malaysian law, then the court may apply English law in toto
provided all the hurdles in section 3(1) are satisfied. In this way, the English law crystallizes into a
Malaysian common law through the statutory doors of section 3(1). This was done by judges in many
cases in the past.
Therefore, in case of a lacuna in the law, it becomes mandatory for the court to refer to English law which
needs to be able to pass through three hurdles as before it can be applied in Malaysia, namely:
● ‘cut-off dates’,
● ‘local circumstances’
● ‘local inhabitants’. – law applied in so far as inhabitants permit
If the English law passes these three hurdles, then it shall be applied by the court. However, if it fails to
comply with any of these hurdles, then the court may either adopt part of it with or without qualification
or completely reject it. In either situation (i.e. whether the court rejects English law completely or in part
and there being no written law in Malaysia), the court is allowed to develop the Malaysian common law.
Dato’ Abdul Hamid J in Nepline went further, and said that in developing the Malaysian common law the
court then is free to refer to ‘any source of law, local or otherwise, be it England after 7 April 1956,
principles of common law in other countries, Islamic law of common application or common customs of
the people of Malaysia’.
In conclusion, the debate on whether Malaysia needs to sustain strong links with English law is likely to
continue. Irrespective of which side of the argument one may take, the truth is that Malaysia’s links with
English law have contributed tremendously towards the development of the plural Malaysian legal
system, which is highly regarded in the region. We submit that the abolition of section 3 of the Civil Law
Act 1956, or the Act as a whole, as some propose, is not necessary. The argument that the Act stifles the
development of the Malaysian common law is untenable. The existing framework within the Act allows,
if not promotes, the development of the Malaysian common law. In doing so, the judges are allowed to
refer to other sources of law, including Islamic law, provided that the prescribed methodology and
procedure under section 3 is followed. In fact, we do suggest certain amendments to section 3 which
would enable smoother reference to Islamic law principles in civil matters. The judges are not only
allowed but in fact they are encouraged to draw on inspiration from the wide spectrum of Islamic civil
laws to fill in the lacunas in the law whenever the need arises. The precedent for that can be found in
Nepline, as discussed earlier.
65
The Caribbean response to reception of English law.

Rose Marie Belle-Antoine argues that judges have failed to apply the local circumstances rule itself,
instead viewing English statute and statutory interpretation and general legal principles as binding
regardless of the suitability of the statutory provision to local circumstances.
Though the case of National Trust for the Cayman Islands v Humphreys (Cayman) Ltd (2003 CILR 201)
shows a more enlightened approach. [Tip: check the references to the case in Rose Marie Belle-
Antoine, Commonwealth Caribbean Law and Legal Systems, 2nd edition]
What does the case National Trust for Cayman Islands demonstrate on the issue of reception?
Provide a case summary below and highlight the main points regarding reception of law.
Issue- The courts had to decide whether laws prohibiting contingent fee arrangements for attorneys
should apply to Cayman Islands
Held (summary) - Decisions of the English court of appeal found such laws to be unlawful and
were not binding in the Cayman Islands because the local circumstances were different. In review
of English Law history against contingent or conditional fees, it was found that they were a
product of particular abuses which arose in the conditions of medieval society.
The courts held that conditional or contingent policies could not be said to be against public policy
in the Cayman Islands.
Further, Justice Bernard provides examples of Judicial Adaptation of English Common Law to
Local Law in the extract below.
Law of movable and immovable property

As mentioned earlier, the Civil Law of Guyana Act, Cap 6:01, sought to codify certain portions of the
Roman-Dutch Law in relation to immovable property. Section 3(c) expressly provided that the English
common law of real property shall not apply to immovable property in Guyana and section 3(d) is to this
effect:
“There shall be as heretofore one common law for both immovable and movable property, and all
questions relating to immovable property within Guyana and to movable property subject to the law of
Guyana shall be adjudged, determined, construed and enforced, as far as possible, according to the
principles of the common law of England applicable to personal property: with certain provisos”.
The effect of this was that all English principles concerning personalty were now to be applied to
immovable and movable property alike in Guyana.
The concept of the “chattel house” unknown to English law is a peculiar phenomenon of Caribbean
society and most territories have given it statutory recognition. Under section 2 of the Summary
Ejectment Ordinance, Cap 27, No 17 of Trinidad and Tobago “premises” meant “lands, houses or other
corporeal hereditaments, and includes chattel or movable houses”. In a case in 1963 the learned judge
66
stated in his judgment that the manner of its statutory insertion indicated that the chattel house had
become a part of the common law of Trinidad and Tobago, [and] it seemed appropriate, therefore, to
apply the principles developed by the courts in England to this locally important, if novel, offshoot in the
law of real property. He held in that case, inter alia, that the house (the subject matter of the dispute) was
a type of fixture which attracted a relaxation of the general rule as to annexation of chattels to the soil and
was consequently removable as a tenant’s fixture at the end of or during the term of the tenancy.
3.
Pluralism
Watch this video:
https://www.youtube.com/watch?v=oFv25e1h-mc&ab_channel=IGDSUWISt.AugustineUnit
● How does she define true solidarity?
“If we are to fight oppression, if we are to fight discrimination against marginalized people, we
have to be true to our solidarity. This means we cannot see one oppression as more important than
the other. We cannot fight one inequality as more pressing than the other. If we are to stand in true
solidarity with each other then we have to understand what oppression is for each and every
distinct people and recognize we are all in this global struggle. The struggle is not for one people,
its for humanity that one day we can live in a just world, a more fair and equitable world…That we
can share this world in a mutual way… its only our unity that is going to bring our freedom.”
● How does she suggest we engage with difference?

Understand all the Caribbean experiences and as a collective, through networking, challenge and
reject the oppressive systems and support each other.
● What role does she suggest imperialism plays in our collective oppression?
To divide and conquer nations, to spread the idea that we are all different from each other.
● What is legal pluralism?
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Legal pluralism is a theory which outlines that there is a multitude of varying legal orders within every
society. This may range from local levels like villages and towns to global levels such as international
law. Along with these, societies house varying, exotic forms of law, such as religious law, customary
law, indigenous law, and distinct ethnic or cultural laws.
● How does Tamanaha define law? How does that differ from the theories you have engaged
with previously?
● What are the systems of normative ordering he identifies? Are they relevant to the
Caribbean?
The systems of normative ordering are:
● Official or positive legal systems

● Customary/cultural normative systems
● Religious/cultural normative systems
● Economic/capitalist normative systems
● Functional normative systems
● Community/Cultural normative systems
● Identify clashes between normative orders in the Caribbean currently. Use case law,
newspaper articles or social media posts to discuss in tutorial.
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“Most conquered and colonized communities do undergo absurd legal experiences. When they encounter
law, it is largely to subdue and dehumanise them by denigrating their legitimacy over themselves, their
settlements, properties, estranging them from their inalienable rights and freedoms, desecrating their
culture and community stability among other irrationalities. — Kibboye Okoth-Yogo ‘ The Meaning of
Law in relation to Kenya’s Legal System’ (2015) Working Paper Series, IJED Institute
To what extent is this true in light of the case law you have identified? In what ways have we sought
to humanise our societies as formally colonized States?
4
The Adequacy of Caribbean (Third World) Theorization
In reading Idowu William, 2004, “African Philosophy of Law: Transcending the Boundaries between
Myth and Reality” and recalling the inadequacy/gaps between traditional theories of law and law as lived
and experienced in the history of the Caribbean, do you think the theorization/understanding of the
historical (and perhaps present day) functions of law in the Caribbean better explain law and its function?
(Tip: the article by William is long. Use the note taking and reading strategies to analyse this
article.)
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5. The creolization of common law

What does Leighton Jackson mean by the creolization of common law? Is Howard Malcom assessment
correct that there is the emergence of a Caribbean jurisprudence (law)?
Leighton’s creolisation of common law can be interpreted to mean a “framework for the
‘development of new traditions, aesthetics, and group identities out of combinations of formerly
separate peoples and cultures,’ a creative interplay that generates something new and worthwhile
out of the loss wrought by colonialism”
6. Tutorial Question
Barbados recently announced plans to become a Republic. Based on your understanding of the historical
functions and reception of law in the Caribbean Critically discuss whether becoming a Republic means
that we can “own” our law?
Barbados already owns its law. Republic status will not make any significant change in the law
and how it is applied.
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WORKBOOK 3
Legal Systems (and Types of Law)
Learning Outcomes
● Understand the methods and purposes of classification of legal systems and legal traditions
including their practical utility
● Define the concepts of a legal family, legal tradition and legal culture and to distinguish hybrid
legal systems and plural legal systems
● Understand the features of the civil and common law traditions
● Understand the features of the hybrid legal system
● State some of the types of law within a legal system

(You do not have to read everything. Use the reading and study techniques in the workbook to
determine what readings work for you.)
reading)
2008) Chp. 3, 4 and 9 (covers equity but we do not focus on this)
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Prof Antoine’s discusses common law, civil law, socialist and religious traditions. We will focus on
common law, civil law and hybrid systems. In relation to hybrid systems, we will look at Guyana which
has Roman-Dutch law and Saint Lucia which has a civil code.
2008) Chp. 3
THE DIFFICULTY IN DEFINING LEGAL SYSTEMS:
The initial question to be asked is: What type of legal system is found in the region?
First we must try to define the term ' legal system'.
This can be said to be the sum of legal rules, legal institutions and machinery which operate within the
particular country or jurisdiction.
The difficulty with this is that legal systems are not necessarily confined to a particular geographical
jurisdiction. Within any country's legal system there will be certain rules which may originate from
outside that country's geographical location, for example, international law. These laws although of
foreign origin, are still considered part of that country's legal system.
A legal system may also exist apart from a State. It may be less than the State. Quebec and Toronto may
be viewed as two separate legal systems although they belong to the nation State of Canada. This is due
to their difference in legal rules, traditions and institutions.
The aforementioned description of a legal system also does not account for its fundamental
characteristics. It also ignores the comparative analysis of legal systems which allows us to categorise
them and separate them into distinct models.
The term 'legal system' therefore has a more specific and deeper meaning than 'the particular collection
of legal rules, institutions and machinery in a given jurisdiction'.
THE CONCEPT OF LEGAL TRADITION OR LEGAL FAMILY:
The comparative study of different legal systems goes beyond a mere examination of legal rules,
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institutions and machinery to determine the different characteristics and similarities which exist between
various legal system models.
● Various types of legal systems are often termed legal traditions or families. All legal systems in
the world can be classed according to a particular legal tradition or family.
● The description 'legal family or tradition' takes into account historically grounded values and
attitudes about the nature of law, the role of law in society and how the legal system should be
organised and operated. The legal tradition is also shaped by cultural identity and peculiar legal
concepts of the society. This is not always definitive as it is often not easy to distinguish
between them.
● The grouping of laws into limited and distinct categories of legal families may be seen as an
oversimplified way of adequately describing the legal system which exist. While this method of
categorization seems to help us attempt to study the world's laws, legal institutions and
concepts, it is not infallible and is essentially an exercise of convenience.
WHICH CRITERIA TO BE USED?
Which legal family best describes the legal systems of the Commonwealth Caribbean?
If
we accept form as an essential criterion, we may agree that there are two main existing legal traditions:
● Th common law legal tradition of family and;
● The civil law legal family
Systems which originated in England and were transplanted through the process of colonization may all
be said to belong to the common law legal tradition. However, if different criteria is used we may be
able to distinguish different categories within these systems.
For instance, Grenada and the republic of Guyana would be able to stand apart from the rest of the
Commonwealth Caribbean at least at particular moments of their historical and social development.
Grenada, through the promulgation of the People's Laws under the PRG socialist regime and the
republic of Guyana via its Constitution, which declared that Republic to be socialist. These two
countries can thus be said to belong to the Socialist Legal tradition. This category has been described as
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a major legal tradition.
Some jurisdictions within the region exhibit hybrid tendencies by displaying characteristics of both civil
law and common law legal systems. These are described as hybrid or mixed legal systems.
There is no general agreement as to the method of classification. Some focus on achieving a socialist
state, while others place more importance on the sources or origins of law and its structure and method.
In comparing legal systems, technique and social objectives, philosophical and politico economic
principles make a substantial difference to the outlook of the law.
It is also noteworthy that the classification of legal systems is not static as it may vary according to time
and historical and social development. E.g the former USSR.
DISTINGUISHING CRITERIA OF LEGAL TRADITIONS:
The most common criteria for categorising legal traditions are: legal technique, historical and legal
sources, ideology, religion,legal institutions, economics, geography and race.
Although 'religion' is not mentioned this can be considered under the heading 'historical background and
development' or even 'ideology'.
Consider the way in which law is organised and promulgated. For example, the civil law has the
tendency to use highly technical codes which contain legal rules. The common law tradition, however,
relies on precedent or judge made law to promulgate legal rules.
The question of whether the law and legal institutions are substantially influenced and supported by the
factor of religion is highly relevant. This is epitomised in Islamic and Hindu countries.
While the common law grew up in England as a creation of the judges of the King's Court. It is therefore
sometimes accused of being a tool of the upper class on the basis that judges belong to that class and the
legal tradition is imbued with their values. French civil law, on the other hand, was heavily influenced
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by the political principles of egalité.
2008) Chp. 4
2008) Chp. 9
detailed analysis that provides tools for critical analysis.)
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Philip Genty, “Overcoming Cultural Blindness in International Clinical Collaboration: The Divide
Between Civil and Common Law Cultures and its Implications for Clinical Legal Education” (2008) Vol
15 Clinical Law Review, pp. 137-145, 149-151
Dmyto Lukianov, “Legal Families Approach: Consistent Patters and Trends”, (2015) Vol 2 (1) European
Political and Law Discourse
Abstract
Author analyzes the problem of combining legal systems to the legal families to create a proper
methodological base for their research. Characteristics of the legal system and its components
are given in the article. Author examines approaches to classification of legal systems
represented in science, starting since 1874 and ending opinions of contemporaries. It is argued
that an ideological component (legal awareness and legal culture of society) should be
recognized the main criteria of typing legal systems in legal families. The form of the all others
phenomena of the legal system (legal norms and their system, sources of law enforcement and
others features) are the result of this ideological component.
LEGAL SYSTEM: CONCEPT AND MAIN FEATURES
The term “legal system” refers to the nature and content of the law generally, and the structures
and methods whereby it is legislated upon, adjudicated upon and administered, within a given
jurisdiction. The legal system can be defined as formed under the influence of certain objective
patterns harmonized set of all legal phenomena of society which are in stable relationships
among themselves and with other social systems.
Main features of the legal system:
1. The legal system is a kind of social system. There are other types of social systems –
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political, economic, religious, etc. – in addition and in conjunction with it.
2. The legal system is formed usually within a state (in this case, using the name of
“national legal system”). But in some cases the legal system may go beyond the limit state and
embrace social systems of different countries (so having religious legal systems – Muslim,
canonical, Hindu, Jewish and international legal systems, such as European law).
3. Legal systems are in different stages of development. Thus, the development of the legal
system can be determined by quantitative and qualitative criteria. Quantitative include the
presence of a developed system of law and the relevant sources, systems of law enforcement
institutions, legal education system and so on; to quality – degree of social demand law, its real
ability to regulate social relations.
4. The legal system is influenced by objective historical factors (national, religious,

economic, etc.) which are unique to each society and cause a variety of legal systems. However,
we must remember the existence of subjective factors also influence the legal system, especially
legal policy.
5. The legal system is composed of different elements. Some of them are characterized as
static, some as dynamic. The main element of any legal system is the system of law, around
which all other elements are formed.
6. The legal system is characterized by integrity. This phenomenon is not only a

combination of certain elements and their features. It is characterized by new features such as
the ability to order. Maintaining a unity of laws is one of the most challenging roles of a legal
system. It is not always easy to unite the dynamic anticipation of a legal system with the issues
of association, harmony, and transmutation. It is because of the fact that laws are positive, but
the social, political, economic, cultural, and historical foundations of laws are normative.
7. The legal system has a relatively sustained over time. Its features formed for a long
time.
8. Legal systems retain their essence and main features even in case of change of state
forms of social organization (disintegration of the state, loss of independence, union or
separation).
Structure of the legal system
The structure of the legal system includes the following elements:
· subject’s component – a set of all entities operating within the legal system (individual and
collective, public and private)
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· regulatory component – a set of rules and principles of law governing relations between
subjects of law embodied in the system recognized sources of law;
· ideological component – a set of views on law and other legal phenomena covered by legal
psychology and legal ideology and determine the level of legal culture, existing legal values;
· functional component – the process of lawmaking and law enforcement, judicial and other
legal practice. Just the presence of the legislature is not enough for the existence of a legal
system. If laws are not administered and implemented, they merely sit on paper with no
practical use. Thus, for the existence of a legal system, there should be the following state
apparatuses: government, judges, police, public prosecutors, and defense lawyers, among
others;
· efficient component – the results of the law enforcement, the degree of its social demand.
The main types of legal systems classifications
We can distinguish the following types of legal systems classifications. Here are some of them:
A. Clean legal system and the legal system of mixed type (“hybrid”). The legal system of
mixed type combines rules and institutions that originate from different legal systems and
interact. Some scientists have suggested that all legal systems are mixed, whether covertly or
overtly, and group them according to the proportionate mixture of the ingredients. Thus some
continental systems are combinations of Roman, French and German laws and indigenous law
such as the Dutch; some of Roman, German and French laws such as the Italian; and some such
as the Greek, of customary, neo-canon, German, Greek and Roman laws. when we talk of
‘mixed systems’, this obvious fact can be put to one side and serve merely as a reminder that
there are no pure legal systems in the world.
B. Developed and underdeveloped legal system. Developed legal system is a system in
which written law is opened, unfolded. Law is a form of high intellectual order in these legal
systems. Law is implemented in public life as an independent and strong social phenomenon.
Underdeveloped legal systems are those systems in which properties of law are not opened.
Law doesn’t play a role of independent and strong social phenomenon. Religious and traditional
legal systems are these systems in the world today. Solutions of complex issues are generally
rooted outside the law – in the tradition, in religious cannons, ideological postulates.
C. Parent and affiliated legal systems. Parent legal systems are those systems where first
created original legal solutions and which subsequently formed the basis of a legal family.
Affiliated legal system is a system that modeled on other (parent) legal systems. English legal
system is parent, while the legal systems of Canada, Australia, New Zealand are modeled on
English law, belonging to affiliated.
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Variety of existing legal systems
There are more than 200 national legal systems in the world. there are supranational legal
systems applicable to the social systems of several countries. Such, for example, is the legal
system of the European Union. the legal map of the world is a complex system of national,
international and religious legal systems. Comparative law uses specific terminology to refer to
a group of legal systems that have similar legal features “legal family”, “legal circles”,
“structural commonality”. However, two terms are most prevalent in modern comparative law –
“legal family” and “legal tradition”.
John Henry Merryman defines a legal system as an operating set of legal institutions,
procedures, and rules. On the other hand, a legal tradition “is a set of deeply rooted, historically
conditioned attitudes about the nature of law, about the role of law in the society and the polity,
about the proper organization and operation of a legal system, and about the way law is or
should be made, applied, studied, perfected, and taught. The legal tradition relates the legal
system to the culture of which it is a partial expression. It puts the legal system in cultural
perspective
Patrick Glenn has emphasized a more complex and inclusive understanding of ‘legal
tradition’. Underscoring the link to the past present in all legal orders, he identifies such a
tradition with ‘the content and flow of large bodies of normative information over time and
over space. Legal traditions have the task only of supporting their own forms of normativity.
This usually involves attempting to do justice.
The notion of legal family contains the idea of historical relationships between different
systems of law. Legal families imply ancestry, while legal traditions entail “pastness”. Thus the
idea of legal tradition reduces domestic legal systems into certain groups or families based on
their commonalties in terms of legal concepts, in particular; legitimacy, validity, and
enforceability. In short, a legal system integrates all laws in existence within its jurisdiction. A
legal family provides membership to legal systems based on commonalties of principles, rules,
and institutions.
Legal families: classification criteria
Legal family is a certain set of legal systems, which are united by common most important
traits that indicate substantial similarity of these systems. The legal families approach, which
has indeed been accused of being overtly western and in this sense basically biased, are seeking
to answer one basic question: can the great number of legal systems of the world be divided
into few large entities, i.e., families, groups, spheres or equivalent?
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It is virtually impossible to construct an ideal system of classification. The main difficulty for
classification of legal families has been in finding a suitable criterion for division. The modern
approach to classification of legal families: the elements that are taken into account are very
much of a similar type: history, ideology, legal style, legal argumentation and thinking,
codification level of law, judicial reasoning, structural system of law, structure of court system,
spirit and mentality of legal actors, training of lawyers, law’s relation to religion and to politics,
the economical basis of law, the background philosophy of legal thinking, the doctrine of
sources of the law, the empirical effectiveness of formal legal rules, the role of tradition in law,
paradigmatic societal beliefs about law, etc.
Classification helps to establish the most important common qualities of all legal systems,
contributes to their deeper knowledge, allows to fix the relationships between legal systems.
Classification facilitates the definition of the place and importance of the legal system in the
overall global system. It makes enable to take reasonable predictions about the ways of further
development of legal systems, helps to unify the current legislation and improvement of
national legal systems.
An ideological component (legal awareness and legal culture of society) should be recognized
the main criteria of typing legal systems in legal families. The form of the all others phenomena
of the legal system (legal norms and their system, sources of law enforcement and others
features) are the result of this ideological component. it is necessary to distinguish two separate
families (types) of religious and traditional law along with families of Romano-Germanic and
Anglo-American law.
Hybrid/Mixed Systems
Explanation of hybrid legal systems in the region: Jane Glenn Matthews “Mixed Jurisdictions in the
Commonwealth Caribbean: Mixing, Unmixing, Remixing” (2008) 12 EJCL 1
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St. Lucia: Dorcas White, ‘Some Problems of a Hybrid Legal System: A Case Study of St. Lucia’ (1981)
30 ICLQ 86
Guyana: Dennis Byron, ‘The CCJ And Its Integral Role In Development Of Caribbean Jurisprudence’
(on e-learning)
When we spoke of Caribbean jurisprudence. We thought of the opportunity to build our own
principles in accordance with our historical and social experiences, and to meet social changes,
to give effect to regional standards and values as the laws of the region are interpreted and
applied.
Boyce & Joseph v The Attorney General, at paragraph [18] of the main judgment of the Court, it was
stated that:
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“[18] The main purpose in establishing this court is to promote the development of a
Caribbean jurisprudence, a goal which Caribbean courts are best equipped to pursue. In the
promotion of such jurisprudence, we shall naturally consider very carefully and respectfully the
opinions of the final courts of other Commonwealth countries and particularly, the judgments
of the JCPC which determine the law for those Caribbean states that accept the Judicial
Committee as their final appellate court. In this connection we accept that decisions made by
the JCPC while it was still the final Court of Appeal for Barbados, in appeals from other
Caribbean countries, were binding in Barbados in the absence of any material difference
between the written law of the respective countries from which the appeals came and the
written law of Barbados. Furthermore, they continue to be binding in Barbados,
notwithstanding the replacement of the JCPC, until and unless they are overruled by this court.
Accordingly we reject the submission of counsel for the appellants that such decisions were and
are not binding in Barbados.
The policy of the CCJ, in other words, is that a) it is fully prepared, as and when it sees it fit to
overrule decisions of the JCPC; b) judgments of the JCPC remain binding until and unless they
are so overruled; and c) in assessing a legal issue, the opinion of the JCPC is weighed in the
same scales as the opinions of other distinguished courts the world over.
the CCJ affords the opportunity, by its judgments, more closely to align the trajectory of
Caribbean jurisprudence with the mores, values, goals, needs and aspirations of Caribbean
people; the final appellate court will now comprise Caribbean nationals and judges who reside
in the Caribbean.
The number of appeals indicates that ordinary folk have additional scope and opportunity to be
heard and to obtain justice. An interesting trend is the fact that the number of civil cases filed,
exceeds the combined total of criminal and constitutional cases. In other words, there are more
cases filed in which the State is not a party than cases in which the State is. This is an important
fact and change from the pattern in the countries which do not have access to the CCJ.
Elizabeth Ross v Coreen Sinclair [2008] CCJ 4 (AJ). Two very poor ladies (one quite aged)
from Guyana had a dispute between them about the right to occupy a condominium. It was a
matter very important to them. They could never previously have had that matter litigated by a
second tier appellate court. The CCJ heard it in forma pauperis (even in civil matters, the CCJ
will hear matters in forma pauperis). Two members of the Guyanese Bar agreed to represent
both ladies pro bono. The ladies were able to have most hearings done by teleconferencing.
With videoconferencing which the CCJ has now installed in the courts of Member States which
did not already have the facility, even more can be done.
Promoting Good Governance and Accountability
In Caribbean Countries the ordinary citizens are expecting that the universally accepted
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principles of good governance will be observed. In particular they want to see that the political
leadership are corruption free. There has been some scepticism as to whether Caribbean Courts
would be sufficiently independent of political leaders to enforce this. The CCJ has addressed
this issue in Florencio Marin and Jose Cove v The Attorney General of Belize [2011] CCJ 9
(AJ) an appeal from Belize. Two former ministers of government were alleged to have
transferred 56 parcels of publicly owned land to a company beneficially owned by one of them
for consideration well below the market value. The DPP decided not to prosecute them. But the
attorney general decided to bring civil proceedings on behalf of the State in tort for misfeasance
in public office. The defendants contended that such a process was unknown to the law and
challenged the validity of the proceedings. In the presentation of the case Counsel on both sides
submitted that there were no judicial precedents. In a very important world leading judgment
the CCJ declared that the case should proceed. Thus already in its short lifetime, the CCJ has
helped in validating a Caribbean solution on a subject that is troubling every nation,
demonstrating its role in Caribbean jurisprudence as the regions grapples with the issue of
public integrity and corruption.
Developing the land law of Guyana
Guyana, like Trinidad and Tobago is blessed with a diverse people characterized by different cultures,
religions and ethnicities but who all share a common history of struggle and triumph. Having a rich and
diverse colonial past, Guyana has a hybrid land law system, a mixture of Roman-Dutch law and English
common law which is unique and complex in its own right. This mixed land law system has for many
years existed with several jurisprudential problems. It is probably arguable that the situation is ripe for
legislative reform. But in the meantime the ordinary folk have disputes which required resolution by the
judicial system. It is perhaps in situations like this that there is a cry for leadership in Caribbean
jurisprudence. While the court must respect the separation of powers and refrain from usurping the role
of Parliament there is much it can do to bring the resolution of disputes over land into conformity with
universally accepted principles. The Caribbean Court of Justice, as Guyana’s final appellate court has
offered clarity, legal certainty and stability to the Guyanese community on many of these land issues.
Equitable interests in immovable property in Guyana
To those students of land law under the British system with its mixture of common law and principles of
equity, the absence of the ability to acquire equitable interests in immovable property in Guyana may
have seemed to be a lacuna. But the Roman Dutch system knows no such interest. In Guyana the courts
and the legal profession had been plagued with controversy on the issue as judicial authorities had not
been consistent in their rulings. So in highlighting some of the Court’s land law judgments that have
enhanced the Guyanese legal landscape, my starting point shall be the case of Ramdass v Jairam and
Others (2008) 72 WIR 270. The Court had to determine the much debated issue of whether equitable
interests in land in Guyana were recognized or could be acquired. The Court clarified this murky
situation; it definitively stated that equitable interests in immovable property are not recognized and
cannot be acquired in Guyana. The Court explained that where a purchaser acquired no equitable interest
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in the land which he bought, he merely had a right to sue for specific performance before title was
conveyed to a third party for value. The Court cautioned that where such a purchaser did not sue, the
third party purchaser would obtain an indefeasible title which could only be declared void by a court
upon proof of fraud.
In Jassoda Ramkishun v Conrad Ashford Fung-Kee-Fung and Others (2010) 76 WIR 328
the Court built on the foundation laid in Ramdass v Jairam and answered an array of other
issues. In this case a vendor agreed to sell to a purchaser a parcel of land but died without
having conveyed the property to the purchaser. The vendor’s wife who was appointed
administratrix thereafter transferred the land to the deceased vendor’s heirs. The transport to the
heirs was duly registered so the question arose as to whether an order of specific performance to
transfer the land to the purchaser could be made against the heirs on the basis that they were
volunteers, not having provided any consideration for the land. This issue was of particular
challenge because whilst the Civil Law of Guyana Act provided that specific performance is
available as a remedy in cases involving the sale of land; the purchaser did not have any
interests in land as affirmed in Ramdass v Jairam. The Court discovered and applied a Roman
Dutch doctrine that “volunteers who acquire a real right, in whatever form, are bound by an
undertaking of their predecessor with regard to the thing to which the real right adheres
whether they have knowledge of that undertaking or not” and ruled that in Guyana a purchaser
for value of land can obtain an order for specific performance against a volunteer who is not a
party to a contract.
Adverse Possession
In one of the Court’s early cases, Toolsie Persaud Ltd v Andrew James Investments Ltd and
Others (2008) 72 WIR 292, the Court clarified the Guyanese law of adverse possession. This
case concerned an appellant company seeking a declaration that under the relevant prescription
statute it had acquired prescriptive title to a tract of land by undisturbed adverse possession for
over 12 years by the company and its predecessor in title the Republic of Guyana. The appellant
had purchased from the State, who had previously attempted to compulsorily acquire the land,
by a process which was subsequently declared invalid. The sale to the appellant had taken place
before the compulsory acquisition was challenged. The Court in its ruling identified the criteria
for establishing a claim of adverse possession. A claimant had to show that for the requisite
period he (and any necessary predecessor) had: a sufficient degree of physical custody and
control of the claimed land in the light of the land's circumstances; and an intention to exercise
such custody and control on his own behalf and for his own benefit, independently of anyone
else except someone engaged with him in a joint enterprise on the land. In its exposition of the
law the Court found that what is required in a claim of adverse possession is the intention to
make full use of the land in the way in which an owner would, whether he knew he was not the
owner or mistakenly believed himself to be the owner. If a dispossessed landowner wishes to
stop time running in favour of the person in undisturbed possession of the land, he must bring
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proceedings against that person who is in possession of the property. This case further decided
that it was possible for the State to acquire land by adverse possession.
Guaranteeing the protection of Human Rights provided for in unincorporated Treaties and
Conventions
The CCJ has addressed an important issue of International and constitutional law in a manner
which has emphasised the human rights of the citizen. The relationship between international
law and domestic varies between different legal systems. The monist system is applied by civil
law jurisdictions and the dualist system applied by the common law. Monists assume that the
act of ratifying the international law immediately incorporates the law into national law.
Dualists emphasize the difference between national and international law, and require the
translation of the latter into the former. This troubling issue came before the CCJ in the case of
Attorney General and Others v Joseph and Boyce [2006] 69 WIR 104. In this case Barbados
had become a party to and had ratified a treaty - the Inter American Convention on Human
Rights, but had not incorporated it into domestic law. As a dualist country that had implications
on the rights of the citizen to benefit from its provisions. The Court considered that although
individual citizens derived no rights under treaties concluded between States, the promotion of
universal standards of human rights showed a tendency towards a confluence of domestic and
international jurisprudence and consequently a ratified but unincorporated treaty could give rise
to certain legitimate expectations. In this case the Court rationalised that in balancing the
competing interests of the individual convicted of murder and sentenced to death to pursue a
petition to the Inter American Human Rights Commission, and that of the State to refuse to
await the completion of the process, the principle of legitimate expectation prevailed.
Enforcing the constitutional guarantee of Fair Trials in criminal cases
Throughout the Caribbean there has been an increase in crime, and the community is looking to
the judicial system as one important tool in reducing crime. There are many theories that
abound about the best way the judiciary can achieve this. Even though there are many who are
impatient to see heavy sentences imposed, there is no one who wishes to see an innocent person
convicted for a crime that he or she did not commit. There is general consensus that criminal
process must be fair. The constitution of each Caribbean Member State mandates this.
However, there is often difficulty in defining the meaning of fairness in the Caribbean context.
A very interesting matter came from Barbados and in a form which shows that having the final
court close to home and more easily accessible goes a long way in providing the ordinary
citizen with additional opportunities for justice. Frank Errol Gibson v the Attorney General
of Barbados [2010] CCJ 3(AJ); 76 WIR 137; in this case a man was accused of murder. It
seemed that the case against him was entirely circumstantial and the prosecution was relying
heavily on the evidence of a dentist who had concluded that a bite mark on the victim had been
made by the accused. The accused had pleaded not guilty. The field of expertise is forensic
85
odontology and the accused could not afford to retain an expert. Among the issues that came
before the CCJ was whether the obligation in the constitution to provide adequate facilities for
the right of the accused to a fair trial required the State to fund the instruction of the expert, and
if so whether the accused was obliged to disclose any report obtained from the expert. On these
questions the Court ruled that the inequality of arms was so serious that failure to provide the
expert investigator could adversely affect the fairness of the trial, and that although an accused
did not have any general duty to disclose, if the defence proposed to call the expert to give
evidence they would be obliged to share the report with the Crown.
Pre trial detention
One of the topical human rights issues throughout the world today is the excessive duration of
pre-trial detention, as a serious human rights violation, - a violation which must be addressed
from many angles. One aspect was addressed by the CCJ in Romeo Da Costa Hall v The
Queen [2011] CCJ 6 (AJ). The point came up when the State accepted a plea of guilty of
causing serious harm with intent and withdrew the indictment for murder. In calculating the
sentence the trial court took into account two of the years spent on remand, although it was
acknowledged that the appellant had spent four years and five months. The CCJ emphasised
that although a court does have discretion, the primary rule is that full credit should be granted
for time spent on remand, but pointed out some of the elements which would justify exceptions
to the primary rule, including, where the court concluded that defendant deliberately contrived
to expand the time on remand, and the entire or part of the pretrial custody was unconnected
with the offence for which he was being sentenced, and where the custody or part of it was also
caused by other offences for which he had been convicted or was awaiting trial.
Caribbean Jurisprudence as embracing Haiti and Suriname
Earlier I alluded to the Court’s Original Jurisdiction. That jurisdiction embodies yet another, a broader
view of Caribbean Jurisprudence which I have not touched upon. It is a notion that treats the region as
being not confined to the Commonwealth Caribbean. With Suriname and Haiti, both non commonwealth
countries, joining the CARICOM family and hence subjecting themselves to the jurisprudence of the
CCJ in the interpretation and application of the Revised Treaty of Chaguaramas, the case may be made
that in fulfilling its mandate under the Revised Treaty, the CCJ is empowered, in its Original
Jurisdiction, to develop a jurisprudence that impacts not only on international economic relations but
also on the domestic legal policy of CARICOM States.
Would this then not be a CARICOM jurisprudence? Indeed, when the CCJ pronounces on the
interpretation and application of the Revised Treaty, its judgments do give rise to an indigenous
jurisprudence unique only to the Caribbean.
It is noteworthy that in its judgment delivered in TCL v The Caribbean Community, in claiming for
itself a power of judicial review over the acts of the organs of CARICOM, the CCJ stated that the
Revised Treaty of Chaguaramas “...represented a transformation of the CARICOM Single Market and
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Economy “into a rule-based system, thus creating and accepting a regional system under the rule of
law”:: See: TCL v The Caribbean Community [2009] CCJ 2 (OJ) at [32]. This necessarily means that
the Court has the power to scrutinise the acts of the Member States and the Community to determine
whether they are in accordance with the rule of law which is a fundamental principle accepted by all the
Member States of the Caribbean Community. It would be almost impossible to interpret the RTC and
apply it to concrete facts unless the power of judicial review was implicit in that mandate. It is the
judgment of the Court that the impugned decisions to authorise suspensions in this case are subject to
judicial review by the Court.
[39] In carrying out such review the Court must strike a balance. The Court has to be careful not to
frustrate or hinder the ability of Community organs and bodies to enjoy the necessary flexibility in their
management of a fledgling Community. The decisions of such bodies will invariably be guided by an
assessment of economic facts, trends and situations for which no firm standards exist. Only to a limited
extent are such assessments susceptible of legal analysis and normative assessment by the Court. But
equally, the Community must be accountable. It must operate within the rule of law. It must not trample
on rights accorded to private entities by the RTC and, unless an overriding public interest consideration
so requires, or the possibility of the adoption of a change in policy by the Community was reasonably
foreseeable, it should not disappoint legitimate expectations that it has created.”
CARICOM jurisprudence therefore confers benefits not only on the Contracting Parties to the
Revised Treaty but also on private entities within CARICOM and the CCJ is the “sole and
exclusive” tribunal empowered to develop this jurisprudence
Some cases (Check Belle-Antoine for summaries of some of these cases)

Ramamugh & Another v. Hand in Hand Mutual Life Insurance & Others (1992) 47 W1R 198
The guyanese court of appeal found that although the civil law of the British Guinea Ordinance of 1971
had ‘sounded the death knell of the Roman Dutch system of law’ the pre- 1917 Roman Dutch Law and
practice relating to conventional mortgages had been preserved.
Velox v Helen Air Corporation (1997) 55 WIR 179 Civil Appeal No. 25 of 2008 Joseph et al v St. Louis
et al LC 2009 CA 3 (Carilaw citation)
87
Spiricor of St. Lucia Ltd v Ag. Of St. Lucia (1997) 55 WIR 123
Prospere v Remy [2007] UKPC 2
The Claimant Frederick Prospere claimed from the Defendant Jennifer Remy a practicing
Attorney-at-Law damages in excess of Six million United States Dollars for allegedly
defrauding him of eleven and a half acres of land situated in a prime area of the Northern
District of St. Lucia.
According to Prospere, Remy forced him to sign a blank sheet of paper before he left on a
trip to Guyana and in his absence she used the signed sheet to create documentation to
perform a sale transaction on the land in 1982. Prospere stated that his claim on the
grounds of fraud had no time limit.
Remy maintained that a proper sale was conducted and that the time for Prospere to make
his complaint had expired several years prior. The matter had already been brought before
the Court in 1992 and the ruling was in favour of Remy. The Defendant applied to the
Court for an Order that the action be struck out pursuant to Article 2122 of the Civil Code
of St. Lucia and Part 26.3 (1) (b) and (c) of the Civil Procedure Rules.
The judge held the decision of the previous trial (1989) and appeal (1991) and agreed with
the defendant that the refiling of the case by the appellant was a flagrant abuse of the
process of the Court and in violation of Part 26.3 (1) (c) of the Civil Procedure Rules
National Insurance Corporation [2009] UKPC 8
Winmark Ltd is a Saint Lucia company which carried on business in Gros Islet. On 7 February
2001 it granted fixed and floating charges over its assets and undertaking to the Caribbean banking
88
corporation ltd to secure repayment of an advance of XCD $12.7m and the interest due theron. The
fixed charges included a hypothec over land in Saint Lucia which was duly registered in the Land
Registry.
The company defaulted on its obligations under the loans and on October 1 2004 the bank
appointed a receiver. At that date the company was in arrear with its payments of contributions due
under the NIC Act 2000 in respect of its employees. On 1 February 2005 the National Insurance
corporation, the body established under the act to administer the national insurance fund,
commenced proceedings against the company to recover XCD $505 564.19 arrears of
contributions and a surcharge for late payment
The court of appeal accepted these submissions by counsel on behalf of the corporation and
therefore rejected the extreme argument that for the purpose of section 74, hypothecated property
did not count as property of the debtor at all. Rawlings JA accepted the argument by holding
section 74 was to give the corporation rights over property in which the bank had beneficial
interest.
Their Lordship disagreed. At the time that the bank was granted its hypothec, section 74 was in
force. The bank never obtained any rights over the company’s property which was not subject to
the priority accorded by statute to any claims for contributions which might exist when the bank’s
security came to be enforced.
No 0375 of 2005 Chitole v Vitalis and Chitolie LC 2007 HC 8 (Carilaw citation)
Guyana: Christine Toppin-Allahar, “Guyana: ‘Mosaic or Melting-Pot?’” in Sue Farran et al, A Study of
Mixed Legal Systems: Endangered, Entrenched or Blended (Routledge, 2014)
89
Child Marriages in Trinidad: Michelle Scobie, Afiya France, ‘Child marriage, Human Rights and
International Norms: the Case of Legislative Reform in Trinidad and Tobago’ (2020) Third World
Quarterly.
T. B. Smith, "The Preservation of the Civilian Tradition in Mixed Jurisdictions" " in A.N. Yionnopoulous
(ed.) Civil Law in the Modern World, Louisiana State University Press 1965, p.3
90
N Kedar, “Law, Culture and Civil Codification in a Mixed Leqal System” Vol 22 no.2 (2007) Can. J.L. &
Soc. 177 2007 no. 2, pp, 177-195.
C Campbell , “The Transition from Spanish Law to English Law in Trinidad Before and After
Emancipation”, (1989) 3 Lawyer 15
91
Danny Pieters “Functions of Comparative Law and Practical Methodology of Comparing”
Rene David, John Brierly, Major Legal Systems in the World Today, 3rd ed Stevens, 1985, pp 7-31
92
Konrad Zweigert & Hein Kotz, An Introduction to Comparative Law, Vol 1, N. Holland Publication,
1977 pp. 57-67
Comparative law started in Paris 1900, the year of the World Exhibition.It was there that
French scholars Édouard Lambert and Raymond Saleilles took the opportunity to found an
international Congress for it .
The words “comparative law” suggest an intellectual activity with law as its object and
comparison as its process.Thus, comparative law is the comparison of the different legal
systems of the world .
Through observing the differences and similarities developed by different legal systems,
comparative law scholars aim to better understand the ultimate reasons of certain institutional
choices and their transformations over time, in a phrase the 'constitutional life' of a legal
system.
Since comparative law is imperative to deal with foreign law , it must be distinguished from
those other branches of legal sciences which have to do mainly or occasionally with other legal
systems .
For example, Foreign law falls short of being comparative law , in 1937 the League of Nations
produced a study of “The Status of Women in the World” consisting merely of reports from
different countries on their own solution of the problem. There was no real comparison of the
solutions presented and so at most one could call it descriptive comparative law.
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Therefore, it can only be considered comparative law if there are specific comparative
reflections on the problem.
The neighbouring areas for legal science which also deals with foreign law and from which
comparative law must be distinguished, are private international law and public international
law , legal history, legal ethnology , and lastly sociology of law .
Ioannis Papadopoulos, “Introduction to comparative legal cultures: the civil law and the common law on
evidence and judgment) (2004) Cornell Law Faculty Papers 15
1
What are the definitions of legal systems, legal family, legal tradition and legal culture?
In reading identify where the extracts below are from.
The term legal system “… can be used very simply to mean the sum of legal rules, legal institutions and
machinery which operate within the particular country or jurisdiction. This definition is not necessarily
limited to a geographical jurisdiction, for within any country’s legal system, there will be certain legal
rules, such as rules of international law, which may originate from outside that country’s geographical
area, but which should be viewed as being part of its legal system. Further, the geographical and political
boundaries of a State may not indicate accurately the term ‘legal system’. A legal system may actually
exist apart from a State so defined. It may be less than the State. For example, Quebec and Toronto can be
viewed as two separate legal systems because they have different legal rules, traditions and institutions,
although both belong to the nation State of Canada. Similarly, England and Scotland can be viewed as
two separate legal systems although, together with Northern Ireland, they form the State of the United
Kingdom. Yet, if we were merely to define a legal system in relation to the law making power of the State
94
as a geographical and political entity, then, in both examples above, we could say that there is a single
legal system. A legal system, therefore, is not easily defined, as there is more than one approach to the
description of what constitutes such a system.”
“The legal system can be defined as formed under the influence of certain objective patterns harmonized
set of all legal phenomena of society which are in stable relationships among themselves and with other
social systems”
“Legal family is a certain set of legal systems, which are united by common most important traits that
indicate substantial similarity of these systems. The legal families approach, which has indeed been
accused of being overtly western and in this sense basically biased , are seeking to answer one basic
question: can the great number of legal systems of the world be divided into few large entities, i.e.,
families, groups, spheres or equivalent? (For some comparative lawyers to think globally equals to stress
the commonalities, i.e. that what is similar (integrative comparison), whereas, to others this means to
appreciate and to underline the differences (contrastive comparison) between legal systems).”
“Legal families are not easily distinguishable. Very often, it is difficult to determine the appropriate
criteria upon which different categories of legal families are to be based. The grouping of laws into
limited and distinct categories of legal families to some extent oversimplifies the attempt to describe
adequately the types of laws and legal systems which exist. It is neither a certain nor infallible exercise.
Yet there is little doubt that such a method does help in the attempt to study the world’s contemporary
laws, legal institutions and concepts and facilitates an understanding of them. It remains, however,
essentially an exercise of convenience.”
Legal tradition is….
A legal tradition is a set of deeply rooted, historically conditioned attitudes about the nature and role of
law, about the organization and operation of a legal system, and about how the law is or should be
made, applied, studied, perfected, and taught (Merryman, 1985). The criteria that are generally used
when classifying which legal tradition a legal system belongs to are its sources of law, the historical
background and development of the system, its characteristic mode of thought, and its distinctive
institutions, such as the roles of judges and lawyers
Legal culture is….
Is the style of thought and patterns of reasoning within and about the law pursued by jurists of the
recipient system and thus affecting the reconstruction of the set of meanings of written rules.
2
Identify 8 features of a legal system?
95
Main features of the legal system:

The term “legal system” refers to the nature and content of the law, generally, and the
structures and methods whereby it is legislated upon, adjudicated upon and administered,
within a given jurisdiction.
1. The legal system is a kind of social system. There are other types of social systems –
political, economic, religious, etc. – in addition and in conjunction with it.
2. The legal system is formed usually within a state (in this case, using the name of “national
legal system”). But in some cases the legal system may go beyond the limit state and
embrace social systems of different countries (so having religious legal systems – Muslim,
canonical, Hindu, Jewish and international legal systems, such as European law).
3. Legal systems are in different stages of development. Thus, the development of the legal
system can be determined by quantitative and qualitative criteria. Quantitative include the
presence of a developed system of law and the relevant sources, systems of law enforcement
institutions, legal education system and so on; to quality – degree of social demand law, its
real ability to regulate social relations.
4. The legal system is influenced by objective historical factors (national, religious,
economic, etc.) which are unique to each society and cause a variety of legal systems.
However, we must remember the existence of subjective factors also influence the legal
system, especially legal policy.
5. The legal system is composed of different elements. Some of them are characterized as
static, some as dynamic. The main element of any legal system is the system of law, around
which all other elements are formed.
6. The legal system is characterized by integrity. This phenomenon is not only a
combination of certain elements and their features. It is characterized by new features such
as the ability to order. Maintaining a unity of laws is one of the most challenging roles of a
legal system. It is not always easy to unite the dynamic anticipation of a legal system with
the issues of association, harmony, and transmutation. It is because of the fact that laws are
positive, but the social, political, economic, cultural, and historical foundations of laws are
normative.
7. The legal system has a relatively sustained over time. Its features formed for a long time.
8. Legal systems retain their essence and main features even in case of change of state forms
of social organization (disintegration of the state, loss of independence, union or separation).
96
3.
Classifying the legal system
97
4.
The common law v civil law
Belle Antonie notes that “an examination of the common law system or tradition is exceedingly
important. This is because Commonwealth Caribbean jurisdictions, in the main, fall squarely into this
grouping. This is a direct consequence of the historical development of the countries of the
Commonwealth Caribbean region. These were rediscovered by the Europeans in the 15th century, became
a battleground to facilitate the then European focus of imperialism, finally being conquered and
dominated by the English. Since the common law system originated in England, in form, character and
substance, it should be of little surprise to learn that this system, through the process of colonisation, was
imposed upon the former conquered territories, some of which now make up the Commonwealth
Caribbean.”
There are points of similarity and difference between common law and civil law systems but the central
distinguishing feature is that the common law system focuses on judicial precedent and the decisions of
judges whereas the civil law system focuses on the codification of laws. In describing the common law
system Saunders says, ‘[t]he Judges of final courts are invariably involved not so much in the discovery
of the law but in its creation. Whether we like it or not, that is the nature of the common law.’ 9 (We will
look at the common law method of law-making and the doctrine of precedent later in the course.)
Extracts
The British Institute of International and Comparative Law Commonwealth Law Series No 6, Law
in the West Indies: Some Recent Trends p85: It is a tribute to the inherent flexibility of the common
law, at once uniform and impartial and yet adaptable to the demands of new ideas and changing
standards, that, in spite of an unhappy economic past and an untidiness in family relations, the newly
independent West Indian communities have committed themselves wholly to it. The common law system
is one of slow development by judicial interpretation and precedent in response to clearly formulated
social sentiment. It does not seem that this is likely to be replaced in the West Indies by a system of rigid
codification.
Tracy Robinson, ‘Gender, Nation and the Common Law Constitution’ (2008) 28(4) Oxford Journal
of Legal Studies 735, 736: There is also an understanding of common law constitutionalism that is
concerned with the method of the common law. The common law system of deciding cases 'worshipping
at the shrine of the working hypothesis' is viewed as a unified methodology, one that is constantly
evolving and adaptable to new insights. Principle follows from method: the common law, Trevor Allan
argues, has an 'inherent commitment to rationality and equality' through adherence to precedent. The
common law's true virtue is as a form of traditionalism that calls for the recognition of 'the value of
conclusions that have been arrived at, over time, by an evolutionary process.’
Sandra Fullerton Joireman, ‘Inherited Legal Systems and Effective Rule of Law: Africa and the
Colonial Legacy’ (2001) 39(4) The Journal of Modern African Studies 571, 573-596
CIVIL LAW AND COMMON LAW
9
Adrian Saunders, ‘The Caribbean Court of Justice and the Legal Profession: Promoting our Caribbrisprudence’,
Address by 1 to the OECS Bar Association St. George’s, Grenada 21st September 2007, 3.
98
From the earliest days of their development there have been fundamental differences between the English
common law system and the continental European systems of justice. The continental systems of law
evolved out of the codes of the Roman Empire and developed into a system of statutes that we now know
as civil law. Perhaps because civil law developed in the context of an expanding empire in need of
regulation, civilian law is articulated in terms of the rights and duties of the citizen (David & Brierley
I978). Civilian systems, such as the French, emphasise the role of the individual within the state and
apply the rights and duties of the citizen to a particular case. The rights and responsibilities of the
individual are believed to be different in the public and private realms. Hence, there is a division in
civilian systems, particularly those that are influenced by the French Napoleonic code, into distinct civil,
criminal and commercial codes.
If we try to discern a difference in originating conceptions, it would be that civilian systems begin with
the idea of the state as supreme and the role of individual in obedience to it. Alternatively, common law
systems have developed with the idea of the protection of individual rights from the state as a primary
goal. This goal is achieved through a particular process of investigation and decision-making. The
common law was developed as a procedure that if properly followed, would result in a judgment for the
plaintiff or defendant. The process, rather than the application of a code, leads to justice. Perhaps due to
the emphasis on process, the English legal system gives us the idea of legal precedent and the reliance on
the body of cases decided in the past to guide the present decision of a judge. This allows for the
development and flexibility of a legal system over time. It is also this reliance on case law that appears so
unorganised to civilian lawyers (Merryman I985). Employment of the common law is a methodology for
resolving disputes rather than the application of a particular rule.
In addition to these differences in the understanding of law in the two judicial systems, there is also a
fundamental distinction in the way the two systems of law are applied. The practice of English common
law has been coupled with an adversarial system of justice. An adversarial system, such as that in use in
both the United States and Britain is one in which the parties to a dispute are pitted against one another in
a relatively brief, oral contest with the expectation that competition between the two sides will reveal the
truth.4 The plaintiff, the defendant and lawyers representing them are gathered together to present their
case before a jury and a judge, who is expected to be an impartial arbiter of justice. This system is
typified as adversarial because of the oppositional relationship between the lawyers for the plaintiff and
for the defendant in the trial.
Alternatively, the civilian, code based system of law has historically been coupled with an inquisitorial
system of practice. The inquisitorial system is characterised by the unique role of judges who are required
to gather evidence and question witnesses in order to find truth. The inquisitorial system is also
distinguished by the written nature of the proceedings. Motions by the various sides must be made in
writing to the judge, who considers them and responds in writing. Witnesses are brought to testify before
the judge and lawyers in an intermittent fashion, rather than one right after another. A written account of
the testimony of witnesses is then presented at trial, if one occurs. Lawyers are involved in the
inquisitorial system of justice, but as advisors to their clients rather than as key actors in a trial. One of the
results of an inquisitorial application of the law is that cases rarely go to trial unless the judge who
conducted the investigation is convinced of the guilt of the accused and the preponderance of evidence
that would support that decision. Trials are simply reviews of the written record that has been collected by
the judge. Guilt and sentencing are then decided by a panel of judges or lay assessors, though jury trials
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are also used for criminal matters. Thus, common law and civil law systems of justice are distinct in the
way the law is applied.
*****
Complete the table below on common law systems versus civil law systems
System feature Common Law systems Civil Law systems
Continuity of legal system Evolutionary Revolutionary
Major Source of Law Custom & Practice Legislative Statues
Reliance on precedent Yes(Strong) No (weak)
Judicial role in law-making Active and creative Passive and technical
Role of legal scholarship Secondary and peripheral Extensive and influential
Judicial Review of Statutes and Yes No

Executive actions
Major decision state Trial Investigation and Examination
Format of Argument Accusatorial/confrontational Inquisitorial/ collaborative
Use of argument and Debate Extensive and fundamental Modest and restricted
Style of legal reasoning Inductive Deductive
Trial emphasis on Procedural correctness Factual certainty.
Evidentiary rules Formal And None (All evidence considered)

restrictive(exclusionary rule)
100
Role of lawyers Primary Secondary
Functions of lawyers Debate and oppose Advise and inform
Judge’s Role during trial Referee/umpire Director/examiner
Selection of judges Political appointment from Merit advancement from judicial

practicing lawyers specialists.
Status of judges Political VIPs Mid-level civil servants
Status of juries Juries No juries
Appellate review focus Procedural Procedural and substantive
Unity of court structure Unified court structure Diffused court structure
However, noted as Belle Antonie states, “The student of law and legal systems should be warned that the
term ‘common law’ has more than one meaning. It can be used in a restricted sense to mean that aspect of
the common law tradition which is concerned only with the legal rules of the tradition and not its essential
characteristics in entirety. However, when one speaks of the common law as a tradition, this description
includes the legal rules described above, as well as other features of the system. It would include, for
example, equity, legal concepts and institutions.”
5.
Hybrid systems
Antoine notes that, “To identify the existence of a hybrid legal system we may consider the way in which
structured, cultural and substantive elements interact with each other under the influence of external or
situational factors pressing in from the larger society. [Kenny] Anthony further suggests that we examine
the following specific elements of the legal system:
(a) the infrastructure of the legal system – that is, its institutional foundations;
(b) legal norms – that is, substantive rules and legal sources and their relative importance;
(c) legal methodology – the principles of reasoning relating to the discovery and application of rules of
law;
101
(d) legal style – how legal principles and concepts are expressed;
(e) values which underpin the system, and, more specifically, the folklore which sustain2s it. This is to
determine the beliefs about the legal system itself.”
Guyana has a hybrid land law system, a mixture of Roman-Dutch law and English common law which is
unique and complex. This mixed land law system has for many years existed with several jurisprudential
problems. It is probably arguable that the situation is ripe for legislative reform.
Discuss in more detail, some of the issues of land law in Guyana as a hybrid form of law?
In addition to land law what are some examples of areas of law in the hybrid systems in St. Lucia
and Guyana? Discuss below.
6.
Caribbean Common Law
Tracy Robinson notes that ‘[t]here was no imperial parliament routinely making laws for the British
West Indies, nor was the English common law uniformly received in the Caribbean. Colonial legislatures
made their own laws, often, though not always, with close reference to those in Britain and certainly not
with the aim of consistency with their Caribbean neighbours.’ 10
Adrian Saunders, The Caribbean Court Of Justice And The Legal Profession: Promoting Our
Caribbrisprudence:
Caribbean Jurisprudence In the CCJ’s judgment in Boyce and Joseph, President de la Bastide and I stated
in our joint opinion that the main purpose in establishing the CCJ is to promote the development of a
Caribbean jurisprudence. It is possible that this statement requires some explanation. I therefore welcome
this opportunity to set out some personal views on how I conceive of our Caribbean Jurisprudence and
what role I see for both the Bench and the Bar in assisting in its promotion.
10
Tracy Robinson, ‘A Caribbean Common Law’ (2007) 49(2) Race and Class, 118, 119.
102
The broad platform on which this jurisprudence rests is of course the Commonwealth Caribbean’s
common historic, political, economic and cultural experiences; our mutual history of slavery, indenture,
displacement, resistance and struggle. On top of this, colonialism has bequeathed us a legacy of
democratic structures and traditions premised on those that exist in the United Kingdom. With few
exceptions, we boast the same limitations of the Westminster parliamentary system, a comparable body of
pre-independence law and written Constitutions modelled along the same lines. These Constitutions all
proclaim themselves to be the supreme law. They contain fundamental rights and freedoms, borrowed
from the European Convention on Human Rights, which the courts are bound to enforce. Up until 2005,
in the Judicial Committee of the Privy Council (“JCPC”), we all had the same final appellate court and, in
the absence of any material difference in the written law, a JCPC decision in an appeal from one country
is as binding for the other States as it is for the country from which the appeal emanates.
In a real sense, therefore, so far as the judicial power is concerned, we have been practically united. It is
on this solid edifice that there has been and is being constructed a shared body of law and judicial
decision-making. Let me stress that this jurisprudence is not new. It has not commenced with the
establishment of the CCJ. It is an authentic jurisprudence that exists and that has contributed and
continues to contribute to an enrichment of common law. I can think of no more fitting description than to
label that jurisprudence “Caribbean” and, in the promotion of it, there is no better suited entity to sit at the
apex than a Caribbean Court of Justice.
Winston Anderson, The Caribbean Court of Justice and the Development of Caribbean
Jurisprudence: Theoretical and Practical Dimensions’
Caribbean jurisdictions stand in the tradition of the Common Law inherited from Imperial England but
there are obvious dangers in any suggestion that the creation of an indigenous jurisprudence requires
freedom from the colonial shackles of English law and the development of legal concepts uniquely
reflective of contemporary Caribbean social reality. Although the Common Law was birthed in England,
midwifed by Magna Carta, it has been bred in what is called today, “the modern Commonwealth” i.e., the
Commonwealth beyond Empire. The genius of the Common Law has seamlessly accommodated the
seeming contradiction of revolutionary political independence of the Commonwealth nations alongside an
unbroken continuity and evolutionary progress of public and private law within the newly emancipated
states. Small wonder then, that the CCJ has, in the same judicial paragraph recognizing its obligation to
promote the development of a Caribbean jurisprudence, also accepted that legal precedents made before
its founding continue to be binding on Caribbean states unless and until they are overruled by the CCJ.
Is it possible then to speak of a Caribbean common law?
7.
103
Types of law
We have examined types of legal systems, what are some of the types of law within these systems?
(Watch the videos on e-learning as lawyers discuss the types of law they practice.)
8.
Tutorial Question
Critically discuss whether a Caribbean common law exists?
WORKBOOK 4A
The Sources of Law
104
Learning Outcomes
● Differentiate between primary and secondary sources of law
● Discuss the sources of the Caribbean Law in detail
● Identify the Features of Commonwealth Caribbean Constitutions
● Analyze the extent to which our Constitutions are indigenous - either in their making or in their
interpretation or reform
● Explain in which ways Common Law, custom, indigenous law and the writings of modern
authors are sources of Caribbean Law
In this specific workbook we will be focusing on the Constitution as a Source of Law.

reading)
2008) Ch 5-11
Essential reading (This provides reading that gives specific examples, problem solving solutions, an hi
d detailed analysis that provides tools for critical analysis)
**Your country’s constitution**
Belize International Service Limited v The Attorney General of Belize [2020] CCJ 9 (AJ) BZ-
CONCURRING JUDGMENT OF THE HONOURABLE MR JUSTICE JAMADAR, JCCJ available at:
https://ccj.org/wp-content/uploads/2020/07/2020-CCJ-9-AJ.pdf - You are expected to read the entire
judgment of Justice Jamadar, focusing only on his description of features of the Constitution, as we
are in this class less focused on the substance of this case. (You can therefore ignore page 140-148.
Whose Constitution? Law, Justice and History in the Caribbean: 6th Distinguished Jurist Lecture.
Distinguished Jurist Lecture series, Judicial Education Institute of Trinidad and Tobago, Port of Spain,
Trinidad and Tobago.
Available at:
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https://kclpure.kcl.ac.uk/portal/files/58540258/djl2016.pdf
McIntosh, Simeon “Change Making Through Constitution Reform in the Commonwealth Caribbean”
Available at:
http://crforumtt.org/archives/CRF_conference_McIntosh_presentation.pdf
Cynthia Barrow-Giles, “Regional Trends in Constitutional Development in the Commonwealth

Caribbean” 2010, Conflict Prevention and Peace Forum
Available at: http://www.cpahq.org/cpahq/cpadocs/Cynthia%20Barrow.pdf
Cynthia Barrow-Giles, “Regional Trends in Constitutional Development in the Commonwealth

Caribbean” 2010, Conflict Prevention and Peace Forum
Available at: http://www.cpahq.org/cpahq/cpadocs/Cynthia%20Barrow.pdf
1
The Importance of Sources of Law
“Black’s Law Dictionary defines source of law as: ‘[s]omething [...] that provides authority [...] a point
of origin for law or legal analysis.’ “The first reason for recognising specific sources of law is that they
tell us which institutions in society have the capacity to develop prescriptive norms, that is, rules, that we
bestow with the authoritative status of law. The rules which such institutions develop therefore have a
certain measure of power and command which results in people being willing to comply with them. For
such rules to have legitimacy, the rule that only certain institutions have the power to make and extend the
law must have been mandated by the majority of the society bound by the law. This is usually
accompanied by rules relating to how rules must be made or changed, called procedural safeguards, as
well as safeguards relating to the substantive content of the law, such as the rights articulated in the Bill
of Rights. Second, knowing which kinds of rules have the authority of law in a particular society assists in
creating legal certainty. This, in turn, contributes to an orderly and, hopefully, peaceful and just society.
Those at the receiving end of the law should know what the law provides and requires. The sources of law
ensure that the people in charge of making and enforcing the law as well as the people who should abide
by the rules of the law know what the law says. Sources of law ensure that, in principle, everyone has
equal access to the content of the law and that the law is known. People would have little faith in the law
if legal rules were to be made on an ad hoc and random basis without an accessible way for them to
establish what the law is at any given point in time. Legal certainty is at the core of the rule of law
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(discussed in chapter 2) and without the sources of law it would be impossible to establish and maintain
legal certainty.
Finally, the recognised sources of law provide us with information on the content of the law…”
Excerpt From: Plessis, W du. “Introduction to Law and Legal Skills in South Africa”.
Hierarchy of Sources of Law
*
Commonwealth Caribbean Legal Systems are not fully codified and as such students must know where
law comes from and where to look to find it. Sources of Caribbean law include authoritative sources such
as the Constitution, legislation (both primary and secondary), court decisions (precedent), the common
law, custom (including indigenous law); and persuasive sources such as some precedents, the work of
authors and legal including the works of modern authors, legal scholars in legal textbooks and law
journals, foreign legal principles.
Outline the hierarchy of Commonwealth Caribbean Sources of Law:
2
The Constitution in the Commonwealth Caribbean is the most important source of law. Why is that? How
did that come to be? The Constitution is the metric (ruler) against which all other sources of law must be
measured; i.e. they obtain their validity from the Constitution. Each of your Constitutions will begin with
a provision that declares that it is the supreme law of the land. Any law which is not in conformity with
the constitution is therefore invalid; unless the Constitution expressly saves it from being declared
invalid; in which case it may be inconsistent with a part of the Constitution but not inconsistent with the
Constitution.
What is the point of the Constitution? What does it do?
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As you read the Antoine text, identify the key functions that Antoine includes. How do they compare with
Funk’s classification? Are there any critical perspectives missing?
As you read Macintosh’s Article- focus on answering the following questions:

● How were our Constitutions drafted? i.e. what was the process like that led to the drafting
of our Constitutions?
● How does that process influence/affect the extent to which the Constitutions belong to “We,
the ordinary people”? Think about the influence of elite legal/political culture on the
formation of our constitutions.
● How does the majority of our Constitutions compare with the Trinidadian process?
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Recall Richard Drayton’s Article from Worksheet 1- Whose Constitution? Build your analysis by looking
for linkages between Antoine, Drayton and McIntosh. See Section III onwards of the Drayton Article.
You will study in detail next semester and Year 2, the Constitution and the Fundamentals of Human
Rights in the Caribbean. In Law and Legal Systems, we want to provide a big picture understanding of
the Constitution and relate it to the discussions we have been having in relation to the nature of law;
ultimately, are these constitutions ours? In order to do that we must have an understanding of the text of
the Constitution, the structure of the constitution (It’s geography, if you will) and the spirit of the
Constitution.
Required Readings
Your Respective Constitution. If your Constitution was drafted before 1973, compare it with a post-
1973 Constitution and vice versa. Identify the Parts of the Constitution. If you look at the Constitutional
layout alone- what would that tell you about the Constitution?
1. THE CONSTITUTION –
Features of Commonwealth Caribbean Constitutions:
(a) Supremacy of the Constitution
(b) Separation of powers provisions
(c) Entrenchment provisions
(d) Lays foundation for Executive and Legislative powers
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(e) Provisions for Independence of the Judiciary

(f) Savings Law Clauses
(g) Bills of Rights which are sometimes interpreted as creating new rights
(h) Provides for redress where rights are violated
(i) Lays the foundation for Judicial Review
The Constitution is Supreme and Parliament is subject to it: Jaundoo v AG of Guyana (1968) 12
WIR 221, 226: ‘When internal self-government was introduced and when independence was
achieved, all those safeguards which had protected colonial peoples were grafted into the constitution.
The result which flowed was that Parliament became subject to the constitution.’
What is the relationship between the Supremacy Law Clause and the Rule of Law? What is the
function of the Bill of the Rights in a democracy?
Entrenchment Provisions
In Hinds v R, [1977] AC 195, the court noted the significance of entrenchment: The purpose served
by this machinery for entrenchment is to ensure that those provisions which were regarded as
important safeguards … should not be altered without mature consideration. Why might this be
important?
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Read the Preamble of your constitution and the Perambulatory section of the Bill of Rights. The
Preambles of the Constitution are generally unenforceable.
● What values are included there?
● Do your preambles reflect the plurality of your societies?
● How do they compare with the decisions you have been studying in previous
worksheets?
3
The Evolution(?) of Approaches to Interpreting Commonwealth Caribbean Constitutions
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How did Caribbean Courts interpret the Constitution when they received(?) it? (Why might I refer to it as
received?)
See the older cases- Nasralla v D.P.P. (1967) 2 AC 238 (P.C.) particularly and Antoine’s treatment (the
way she presents the cases, juxtaposes individual cases to make arguments) of the earlier cases.
Collymore v A.G. (1967) 12 W.I.R. 5
Hinds v R [1977] AC 195.
Thornhill v A.G. [1981] A.C. 61 (P.C)
Maharaj v A.G. [1978] All E.R.; [1979] A.C 385 6F.
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Min. of Home Affairs v Fisher [1980] A.C. 319 (P.C)
AG et al v Joseph and Boyce (CCJ)
How did the Courts develop a more progressive jurisprudence? Have a read of Minister of Home Affairs v
Fisher. This case is the locus classicus on constitutional interpretation of rights. What does Lord
Wilberforce suggest as the proper approach to interpreting rights? What does he mean by the “austerity of
tabulated legalism?”
Read AG v Joseph and Boyce- you will be asked to read it in every semester for the next two years.
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4
The Evolution(?) of Approaches to Interpreting Commonwealth Caribbean Constitutions (The
Spirit?)
Justice Wit in Belize International Services Limited v The Attorney General of Belize at [14] :
I would seek support in the rule expressed by the Supreme Court of the Philippines in Tañada v
Cuenco: "As a general rule of statutory construction, the spirit or intention of a statute prevails
over the letter thereof, and whatever is within the spirit of the statute is within the statute although
it is not within the letter, while that which is within the letter, but not within the spirit of a statute,
is not within the statute.” Whether this rule – not an absolute one, for sure - would have general
application with respect to statutory interpretation as we know it in the Commonwealth Caribbean
is probably debatable if not questionable, but it would fit quite well in our (in any event my)
views on constitutional interpretation, certainly where the Constitution in our part of the world is
generally seen as a principle-based living instrument. My general conclusion is thus: whatever is
in the spirit of the Constitution is within the Constitution, although it is not in the letter of the
Constitution, while that which is within the letter, but not within the spirit of the Constitution, is
not within the Constitution. It is on those grounds that I have reached the, in the eyes of some
probably bold, conclusion that the agreement as executed was not inconsistent with the
Constitution and therefore not void or unenforceable.
What happens if there is any conflict between proposed legislation and the spirit of the Constitution
even though not the explicit text of the Constitution? Do you agree with Justice Wit?
Knowledge Questions: What are savings law clauses? How did the Court interpret these clauses?
See McEwan et al v The Attorney General available at https://ccj.org/wp-content/uploads/2018/11/2018-
CCJ-30-AJ2-mod.pdf
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Critical Thinking Questions: Why would judges (usually judges trained in the UK) be cautious with the
Constitution in the early 1960s and 1970s? Based on your reading thus far on legal pluralism and the
Constitution to what extent have judges maintained this conservatism?
5.
A Basic Deep Structure - Justice Jamadar in Belize International Services
[318] In 2018, the then President of this court, Sir Dennis Byron, writing for the majority in Nervais and
Severin,207 had this to say (albeit in the context of constitutional savings clauses): With these general
savings clauses, colonial laws and punishments are caught in a time warp continuing to exist in their
primeval form, immune to the evolving understandings and effects of applicable fundamental rights. This
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cannot be the meaning to be ascribed to that provision as it would forever frustrate the basic underlying
principles that the Constitution is the supreme law and that the judiciary is independent.
[319] This reference to ‘the basic underlying principles’ of a constitution, is what I wish to explore. It
points to the existence of a basic ‘deep’ structure, that underpins, informs and constitutes certain non-
derogable features, principles, and values of Belizean constitutionalism, that are so foundational and
essential to the identity and nature of the State of Belize, that the Constitution itself as text, and all
executive, legislative and state administrative actions can be subject to it. [320] In effect, the decision in
Nervais and Severin is monumental in Caribbean jurisprudence, because it establishes that even the literal
text of a constitution is not inviolable and is at once subject to certain ‘basic underlying principles’. What
becomes normative, and authoritative, is ultimately not the letter of the text, but the basic ‘deep’ structure
(certain non-derogable features, principles, and values) that underpins, informs, and constitutes the text as
a constitution.
[321] This is clear, because in Nervais and Severin the general savings clause that was whittled away and
considered subordinate to the unwritten and/or preambular value of the rule of law, was a part of the
Constitution itself. Thus, even though the Constitution as the explicitly avowed supreme law contained a
general savings clause, that specific clause was deemed subject to this ‘basic underlying principle’ of the
rule of law, which was ultimately considered to be the (more) supreme constitutional principle (law). It is
therefore this basic ‘deep’ structure that constitutes a written constitution as such, and not the other way
around, even as the enactment of the text is also constitutive.
The Features of a Basic Deep Structure – See Arif Bulkan, ‘The Limits of Constitution (Re)-making in
the Commonwealth Caribbean: Towards the Perfect Nation’ (2013) 2:1 Can J Hum Rts 81.
(a) Reading a Constitution’s substantive provisions holistically and functionally as
guideposts, in their historical and legal contexts, to discover common values and a
consistent or coherent vision, an essential identity shaped by the totality of its provisions,
that manifest its overall (constitutional) philosophy and morality;
(b) Discovering the root history, values and culture of a state from a constitutional
perspective, which includes a consideration of the essential and organising underlying
principles identified in preambular clauses, that constitute the most vital assumptions
upon which the constitutional text is based;
(c) Developing a theory of the nature of law, which distinguishes between constituent and
constituted law making powers, and placing constitutionalism and constitution making
and amending in the category of ‘higher order’ constituent law making power (as
compared to constituted powers – such as those exercised by the legislature and the
executive);221 and finally,
(d) Applying the ‘principle of integrity as the most appropriate interpretative technique’,
whereby ‘[w]ritten constitutions, as an exercise of constituent power, represent an
original commitment by the people to be governed by certain fundamental laws and (to)
live within a certain juridical structure
What is the Rule of Law according to Justice Jamadar?
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What effect does the rule of law have on governance?
The Constitution in Context Reading - Cynthia Barrow-Giles, Regional Trends in Constitutional

Development
What are some of the challenges faced by our polities and what is the relationship with Constitutional
Reform?
What reforms does Barrow-Giles propose?
Do you agree with them? Disagree? Would you make any modifications of them?
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6. Tutorial Questions
(a) Law and society are dynamic, not static. A Constitution must be read as a whole. Courts should be
astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to
its essence and its underlying spirit. If one part of the Constitution appears to run up against an individual
fundamental right, then, in interpreting the Constitution as a whole, courts should place a premium on
affording the citizen his/her enjoyment of the fundamental right, unless there is some overriding public
interest.
Critically Discuss.
(b) The Constitutional Text should not be updated by Judges, it should only be done by Parliament.
Critically Discuss.
WORKBOOK 4B
The Sources of Law – International Law
Learning Outcomes
● Outline the uses of IL in Domestic Legal Systems
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● Explain the dualist vs monist dichotomy and role of IL in each of these systems
● Examine the judgments on unincorporated treaties in the Commonwealth Caribbean and critique
the approach taken by the CCJ and the Privy Council
● Outline the doctrine of Legitimate Expectation as provided by the CCJ in AG v Joseph and Boyce
and compare with the PC Decision in Boyce and Joseph v The Queen
● Critically assess the relationship between International Law and Constitutional/Human Rights
adjudication in the region
In this specific workbook we will be focusing on the Constitution as a Source of Law.

reading)
2008) Ch 12
The Hon Mr Justice Winston Anderson, The Role of the Caribbean Court of Justice in Human Rights
Adjudication: International Treaty Law Dimension
Available at: https://ccj.org/wp-content/uploads/2015/06/THE-ROLE-OF-THE-CARIBBEAN-COURT-
OF-JUSTICE-IN-HUMAN-RIGHTS-ADJUDICATION-INTERNATIONAL-TREATY-LAW-
DIMENSIONS.pdf
Justice Andersen provides a summary of the approach Commonwealth Caribbean Courts have
taken in adjudicating on International Law in domestic courts
David Berry's ‘The Use of International Law by Domestic Tribunals in the Caribbean in Death Penalty
Cases’ in Transitions in Caribbean Law: Lawmaking Constitutionalism and the Confluence of National
and International Law, edited by David Berry and Tracy Robinson, (Kingston, Jamaica: Ian Randle
Publishers, 2013),
The introduction (not the chapter above) to the book is at Available at
SSRN: https://ssrn.com/abstract=2536148
119
Berry provides an examination of uses of IL. The entire article is helpful in thinking through the
relationship between IL and Domestic Law- particularly Constitutional/Human Rights. His
summary at page 120-127 provides a global overview of the uses of IL in a dualist system and
should be read.
Cases:
Fisher v AG of Bahamas [1980] AC 319
Pinder v R (2002) UKPC 46
Lewis v AG of Jamaica [2000] 2 WLR 1785; 57 WIR 275 (also read the dissenting judgement)
Boyce & Joseph v The Queen [2004] UKPC 32
Pratt and Morgan (1993) 43 WIR 340
A.G of Barbados v Joseph & Boyce (November 8, 2006 CCJ Appeal No CV 2 of 2005)
Maya Leaders Alliance v The AG of Belize [2015] CCJ 15(AJ)
Duke E.E. Pollard (2007) Unincorporated Treaties and Small States, Commonwealth Law Bulletin, 33:3,
389-421, DOI: 10.1080/03050710701747294 available at: http://
www.tandfonline.com/doi/pdf/10.1080/03050710701747294
You will over the coming semesters be examining this relationship between Human Rights Treaties
and Constitutional Interpretation and a mastery of the subject matter is required. Consider this a
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helpful kickstart. Justice Pollard in this scholarly work, guides the reader through the cases
examining the correctness of the decisions while paying attention to the policy considerations.
Policy considerations play a key element in the making of law and an awareness of and critical
thinking about such policy considerations enhances the quality of responses.
1
What is International Law?
A system of laws created by states, international courts and tribunals operating at the national and global
level.
Statute of the International Court of Justice Article 38(1), describing the law to be applied by the ICJ
when deciding cases within its jurisdiction, is generally considered to be the most authoritative
enumeration of the sources of International Law
1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, [i.e. that only the parties bound by the decision in any particular
case,] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
Consider:
Do all these sources involve positive law? Do any of the sources reflect natural law?
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How do rules from each of these different sources come to be part of international law?
Have a read of the short article by Sources of International Law: An Introduction by Professor
Christopher Greenwood, Available at https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf
The Traditional Understanding of Dualist and Monist Legal Systems
Commonwealth Caribbean Legal systems are predominantly dualist systems. International agreements
signed by the Executive do not automatically become part of the domestic system and instead require the
Legislature to transform the contents of the international law into their own municipal legal system.
Within this dualist framework, if the Government signed an international treaty called the “International
Agreement on Subsidized Provision of Tertiary Education” which required states to provide education to
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their nationals, free at the point of delivery - as a citizen engaged in tertiary studies - you would be unable
to rely on these rights within a domestic court. You may be able to take your claim to an International
Court which may declare that your international rights are being breached, but a High Court just would be
unable to enforce that in the domestic sphere.
Monist Legal Systems on the other hand, automatically incorporate international law within their legal
systems and a citizen would be able to enforce those rights in a domestic Court. In order to make a
justiciable claim to your right to tertiary education in Commonwealth Caribbean Legal Systems,
Parliament needs to pass legislation either incorporating the entire Treaty into domestic law or may pass
legislation with a view to complying with their obligations.
Summarise Berry’s view of the Dualist and Monist legal systems.
Relationship between HR Treaties and Constitutional Interpretation
Having understood the difference between Monist and Dualist systems of IL, read the judgements below
to understand how IL influences Caribbean constitutions.
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Minister of Home Affairs v Fisher (1980) AC 319, PC Bermuda; (1979) 44 WIR 107 - particularly the
judgment of Lord Wilberforce. The court there noted that West Indian constitutions were influenced by
the European Convention and the UDHR.
Fisher v AG of the Bahamas, (1 Privy Council Appeal No 53 of 1997, decided 12 December 1997,
PC, the Bahamas, p 18.) Lord Steyn, in arguing for an even more expansive interpretation of the Pratt
and Morgan principle, said: It is necessary to bear in mind the genesis of Art 17 (1). It was taken from Art
3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953),
which served as a model for the Constitutions for most of the Caribbean Countries.
See AG v Joseph- Justice Anderson describing the relationship: “In Attorney General v. Joseph, the CCJ
did not reflect on, and therefore did not rule on, a line of Caribbean cases that have considered the
interpretation of Caribbean Bills of Rights in light of their relationship with international human rights
treaties. However, it is generally accepted that the statements of human rights in Caribbean constitutions
are based largely on the European Convention on Human Rights, which in turn was inspired by the
United Nations Declaration on Human Rights (UDHR), the International Convention on Civil and
Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights
(ICESCR), together known as the International Bill of Rights. All 15 CARICOM Member States are
signatories to the UDHR; of these, 12 have adopted the ICCPR and 10 have accepted the ICESCR.”
What is the difference between CCJ case, AG v Joseph and the Privy Council case, Boyce and
Joseph v The Queen?
124
In The Maya Leaders Alliance v The AG of Belize [2015] CCJ 15(AJ) the Court noted the following:
“It also bears note that the right to protection of the law encompasses the international obligations
of the State to recognize and protect the rights of indigenous people. A recognized sub-set of the
rule of law is the obligation of the State to honour its international commitments. This ideal was
expressed by the late Lord Bingham, delivering the Sixth Sir David Williams lecture in 2007.
Recognising the inherent elusiveness that attends any definition of the rule of law, Lord Bingham
proposed a list of eight sub-rules which can be derived from the rule of law, the last of which
posits that “the existing principle of the rule of law requires compliance by the state with its
obligations in international law, the law which whether deriving from treaty or international
custom and practice governs the conduct of nations.”
What are the implications of this dicta by President of the Court Sir Dennis Byron on the
traditional distinction between International and Domestic Law in a Dualist System?
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Much of the focus in these cases is the effect of unincorporated treaties. It is non-controversial that
Treaties which have been brought within the domestic legal system give rights- they function as any
ordinary statute would. Caribbean Executives have been (driven to) or (known to) sign International
Treaties which require steps to be taken in conformity with the Treaties such as enacting legislation and
sometimes engage in expending resources (taking positive steps) and failing to do that.
Why would Executives commit to the Treaties and the Legislature neglect/refuse to bring it within
the Domestic system? (Think of the policy considerations- Duke Pollard’s optional article provides a
couple suggestions)
How should Courts deal with that refusal/neglect which has been at the heart of this debate of the
effect of unincorporated treaties - particularly where those Treaties often have an influence on
human rights norms?
4
Legitimate Expectations
Belle Antoine writes that
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In Boyce, the CCJ was attracted to the Australian precedent of Teoh 95 in which the court found that
while unincorporated treaties were not directly enforceable, citizens had a legitimate expectation to the
procedures established by such treaties. It is clear however, that the Teoh decision cannot be read to mean
a reversal or abolition of the dualist tradition. All that the doctrine of legitimate expectation does with
respect to treaties, is to give rise to procedural expectations, that a particular (fair) procedure will be
followed, in this instance, a hearing of the issue before the relevant international body.
What is the doctrine of legitimate expectations?
Does the CCJ decision in Boyce and the use of the doctrine of legitimate expectations mean that
unincorporated international treaties can be domestically enforced eroding the dualist tradition of
IL in the Commonwealth Caribbean legal systems?
Tutorial Questions
(a) Critically discuss whether International Law is the most important source of law?
(b) The Constitution is declared to be the supreme law but it is subservient to international law. Critically
discuss.
WORKBOOK 4C
Common Law and the Doctrine of Precedent

Learning Outcomes:
• Define the doctrine of judicial precedent
• Describe the types of judicial precedent.
• Define the terms distinguishing, reversing and overruling
• Outline the necessary requirements for the doctrine to function
• Define the different elements of a judgment
• Determine the Ratio of the Case and the Obiter Dicta
• Explain the hierarchy of the Courts and the application of the doctrine of precedent
• Outline and evaluate the declaratory theory
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• Discuss how a precedent can be altered or avoided, including the roles of the Supreme Court
and Court of Appeal in relation to precedent.
• Apply the doctrine of judicial precedent to a given scenario.
• Analyse the advantages and disadvantages of precedent (particularly in the context of the
Caribbean and the JCPC) and the limitations on judicial law making.
In this specific workbook we will be focusing on the Common Law/Precedent as a Source of

Law.
In using this workbook, please follow the tasks:
Task 1: Before you attend the lecture:
Read the following

reading)
2008) Ch 8
Justice Nelson, “New Final Appellate Courts in the Commonwealth and the Doctrine of Precedent”
Commonwealth Meeting of Justices and Registrars of First/Regional Appellate Courts Wellington, New
Zealand: 20-24 February 2006 (Uploaded on e-learning)
Walker and Walker English Legal System, Oxford University Press, 9th ed.
Michael Zander The Law Making Process, 6th ed., Cambridge University Press, pgs 215-305
J.H. Farrar and

A.M. Dugdale Introduction to Legal Method 3rd ed., 86-137.
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Michael Zander The Law Making Process, 6th ed., Cambridge University Press, pgs 216-225 (overruling
of precedent)
Ho Peng Kee, Fettering the Discretion of the Privy Council, Malaya Law Review
Vol. 21, No. 2 (December 1979), pp. 377-381 (5 pages)
Other reading extracts and cases are noted in the workbook. Cases:
1
Brief History of Common Law
Historical Background the English Common Law in Catherine Elliot, Frances Quinn and
the English Legal System
Before the Norman conquest, different areas of When these ‘itinerant justices’ returned to
England were governed by different systems of Westminster, they were able to discuss the
law, often adapted from those of the various various customs of different parts of the
invaders who had settled there; roughly country and, by a process of sifting, reject
speaking, Dane law applied in the north, unreasonable ones and accept those that
Mercian law around the midlands, and Wessex seemed rational, to form a consistent body of
law in the south and west. Each was based rules. During this process – which went on for
largely on local custom and, even within the around two centuries – the principle of stare
larger areas, these customs, and hence the law, decisis (‘let the decision stand’) grew up.
varied from place to place. The king had little Whenever a new problem of law came to be
control over the country as a whole, and there decided, the decision formed a rule to be
was no effective central government. followed in all similar cases, making the law
When William the Conqueror gained the more predictable.
English throne in 1066, he established a strong The result of all this was that by about 1250, a
central government and began, among other ‘common law’ had been produced, that ruled
things, to standardise the law. Representatives the whole country, would be applied
of the king were sent out to the countryside to consistently and could be used to predict what
check local administration, and were given the the courts might decide in a particular case. It
job of adjudicating in local disputes, according contained many of what are now basic points of
to local law. English law – the fact that murder is a crime,
for example.
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The principles behind this ‘common law’ are decisions made by the higher courts, which the
still used today in creating case law (which is in lower ones must respect, is known as case law.
fact often known as common law). From the The English common law system was exported
basic idea of stare decisis, a hierarchy of around the world wherever British influence
precedent grew up, in line with the hierarchy of dominated during the colonial period. These
the modern court system, so that, in general, a countries, including the US and many
judge must follow decisions made in courts Commonwealth countries, are described as
which are higher up the hierarchy than his or having common law systems. They are often
her own (the detailed rules on precedent are contrasted with civil law systems, which can be
discussed later in this section). This process found in Continental Europe and countries over
was made easier by the establishment of a which European countries have had influence.
regular system of publication of reports of The best-known civil law system is the French
cases in the higher courts. The body of legal system, whose civil code has been highly
influential.
2
What is Common Law?
Maha Sabha of Trinidad and Tobago Inc et al. v AG of Trinidad and Tobago TT 2007 CA
52 - on the meaning of the common law
Sec 6(1) provides that "Nothing in sections 4 that Letters Patent do not fall within the first
and 5 (the fundamental rights and freedoms) element. As will be demonstrated shortly, it is
shall invalidate - (a) an existing law". more likely to fall within the second.
Subsection 6(3), defines "existing law" as "a
law that had effect as part of the law of "Unwritten rule of law" would be a reference to
Trinidad and Tobago immediately before the the common law. In a paper on the common
commencement of this Constitution". law by Tim A Thomas JD, he defined it as
including those "rules of law which do not rest
"Law" is defined in section 3 of that for their authority upon any express or positive
Constitution as including: statute or other written declaration but rather
"Any enactment, and any Act or statutory upon statements of principles found in the
instrument of the UK that before the decisions of the courts. Common law is the law
commencement of the Constitution had effect of necessity and is applied in the absence of
as part of the law of Trinidad and Tobago, controlling statutory law…..it is not limited to
having the force of law and any unwritten rule published judicial precedent but, includes the
of law".(my emphasis) entire wealth of received tradition and usage,
fundamental principles, modes of reasoning
There are two elements to that definition: (i) it and the substance of its rules as illustrated by
specifically refers to ‘any enactment', Act or the reasons on which they are based, rather than
statutory instrument having the force of law, the mere words in which they are expressed.”
and (ii) any unwritten rule of law. I would think
130
3
What is the Doctrine of Precedent?
The Doctrine of Precedent has been explained to mean:
Justice Nelson stated that “Precedent” in the common law can be used in two senses. In one
sense judicial precedent is a convenient shorthand for the obligation of a 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. In another sense a 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.”
Stare decisis requires three conditions:
(1) an earlier case, and thus an element of 'priorness' or 'pastness',
(2) factual similarity, and
(3) a particular relationship between the decision-making authorities.
What is binding precedent? Support the answer with cases.
What is persuasive precedent? Support the answer with cases.
131
Essential Concepts11:
Ratio decidendi: ‘The reason for deciding’. 1. A statement of law is regarded as obiter if
The legal principle upon which a case is it is based upon facts that either were not
decided in the light of the material facts (it is found to be material or were not found to
the part of the case which is binding). exist at all.
Qualcast v Haynes - [1959] 2 All E.R. 38, 43 2. Even where a statement of law is based
F to 44 C; 45G to 46B on the facts as found, it will be regarded as
Material facts: The facts which are significant obiter if it does not form the basis of the
to the legal issue being decided in a case (they decision. A statement of law made in
are the facts which matter!). support of a dissenting judgment is an
obvious example.
Obiter dicta (plural)/obiter dictum
(singular): ‘Statements said by the way’/‘A Distinguishing: The process by which a past
statement said by the way’. A statement or binding precedent is avoided by proving that
statements said in a case which do not form its material facts were sufficiently different.
part of the ratio decidendi but can be Reverse: Where a higher court reaches a
persuasive (not binding!) in other cases. different decision from a lower court as the
Examples include: same case travels up the court hierarchy.
• A dissenting judgment (e.g. the minority
decision in a Supreme Court case decided on a Overrule: Where a higher court states that a
4 in favour: 1 against basis). lower court's decision in a different case is
• Legal discussion not directly related to the wrong and no longer good law. This
case itself.
extinguishes the precedent value of the lower
• A hypothetical statement
court's decision.
There are two types of obiter dicta.
11
Definitions Sourced from Essential Notes on the English Legal System
132
Stare decisis requires a judge to follow certain previous decisions. Where a case is decided on
the basis of a proposition of law (the ratio) in Judgement A, in circumstances which are
indistinguishable from those confronting the judge in case B, and by a formal rule the judge in
case B stands in an inferior relationship to the court which decided case A.
4
Do judges make law?
John W Salmond (The Theory of Judicial Precedents' (1900) 16 LQR 376) distinguishes not only
between authoritative and persuasive precedents, but also those which are declaratory (the
application of an already existing rule of law) or creative (creating and applying a new rule),
absolutely authoritative (with a legal claim to implicit and unquestioning obedience) or
conditionally so (which may be departed from where such is demanded by the interests of the
sound administration of justice), and suppletory (making law) or abrogative (altering law, which
is prohibited in accordance with the declaratory theory.
Original Precedent
When a point of law has not already been decided, judges make a new precedent. Because there
will be no past cases to base a decision on similar cases and therefore uses the similar ruling.
Marin and Caye v Attorney General BZ torts including trespass, nuisance and
2011 CCJ 1 negligence. However these are matters for
another day. What to my mind is presently
I concede that an action of the kind initiated by
obvious is that none of these concessions can
the Attorney General in this case is to all
be a sufficient reason to deny the logic of the
intents and purposes unprecedented and that
developments in the tort of misfeasance in
from one perspective centuries of forensic
public office which have in this case
thought and assumptions could be taken to
lean against his proceeding. I equally admit converged with the evolution of the corporate
nature of the State in the law of torts. To the
that to allow this suit could have significant
contrary these developments may well
implications for the role of the State in the law
portend the welcome emergence of a new
of torts. To recognize competence in the
matrix of causes of action hitherto frozen in
Attorney General to bring this suit naturally
their historical crypts and now animated by
raises the prospect of the Crown suing,
judicial imprimatur.
possibly as parens patriae, in a host of other
Anna Holmes, Will Australia Courts Move to a Caribbean Beat? The Question of a State’s
Standing to Sue in the Tort of Misfeasance in Public Office
http://www.law.uwa.edu.au/__data/assets/pdf_file/0010/2958850/06-Holmes.pdf
“The tort of misfeasance in public office will never be the whole solution to the problem of
133
corruption and other abuses of public office. But allowing the state to sue in this tort if and when
it is deemed appropriate gives the state another tool to counter impropriety, both within its own
ranks and in the public service of other jurisdictions. If ever Australian courts are faced with the
question of whether an Attorney-General can sue in the tort on behalf of the state, Australian
courts will most likely move to a Caribbean beat by reasoning along similar lines as the majority
of the Caribbean Court of Appeal in Marin.”
Thinking point: The title alone raises interesting prospects of an indigenous jurisprudence being
utilized by foreign Courts such that the role of the Caribbean in the creation of law is
transformed from passive recipient to active shaper of the law.
Mitchell et Al v DPP et AL GD 1985 CA 1
It is to this totality of facts that this Court must with the assistance of counsel, satisfy ourselves
apply the appropriate, principles or rules of that they are right and acceptable to Caribbean
law. And in determining what these principles jurisprudence. For an approach and result
and rules grey regretfully, we have no regional acceptable in Pakistan or in Uganda or in
judicial precedents to assist us. True it is that a Cyprus or in Rhodesia or in the Seychelles
number of commonwealth cases were cited by might well not be socially acceptable to our
counsel. And discussed helpfully. But we must regional society. Caribbean political interests
bear in mind that they are not binding on this and public policy might well be involved and
Court. They can be persuasive only. We must affect judicial conceptualisation when an
not assume that the principles of law any of appellate Caribbean tribunal has to determine
them adopted applied and laid down, although for the first time what is the law to be applied
not bindings are rights and just only proceed to to a package of facts such as this is.
apply them to the facts of this case. We must,
Gibson v Government of the United States of America BS 2007 PC 8
Stare decisis is an important principle. The virtues of certainty and finality hardly need emphasis
or elaboration. As Lord Wilberforce said in Fitzleet Estates Ltd v. Cherry [1977] 1 W.L.R. 1345,
1349:
134
“Nothing could be more undesirable ... than to permit litigants, after a decision has been given by
this House with all appearance of finality, to return to this House in the hope that a differently
constituted committee might be persuaded to take the view which its predecessors rejected. True
that the earlier decision was by a majority: I say nothing as to its correctness or as to the validity
of the reasoning by which it was supported. That there were two eminently possible views is
shown by the support for each by at any rate two members of the House. But doubtful issues
have to be resolved and the law knows no better way of resolving them than by the considered
majority opinion of the ultimate tribunal.”
But the principle is not an absolute one. In the Privy Council it never was. And since the Practice
Statement (Judicial Precedent) [1966] 1 WLR 1234 the House of Lords too has been free to
depart from its own previous decisions. As Lord Bingham of Cornhill recently said in Horton v.
Sadler [2007] 1 AC 307, 323 (para 29):
“As made clear in the [Practice Statement] former decisions of the House are normally binding.
But too rigid adherence (end of page 9) to precedent may lead to injustice in a particular case and
unduly restrict the development of the law. The House will depart from a previous decision
where it appears right to do so.”
23. Generally speaking, as Lord Reid observed in R v. National Insurance Commissioner, Ex p

Hudson [1972] A.C. 944, 966, the practice will be used “sparingly”: when the previous wrong
decision is “thought to be impeding the proper development of the law or to have led to results
which were unjust or contrary to public policy”, when “courts tend to distinguish it on
inadequate grounds” which itself “is bound to lead to uncertainty”. Horton v. Sadler was just
such a case where the House departed from its previous longstanding decision in Walkley v.
Precision Forgings Ltd [1979] 1 W.L.R. 606, a decision which had prompted a good deal of
unsatisfactory jurisprudence in efforts to distinguish it.
24. That, it must be acknowledged, is not the position here. It cannot be said that the Board’s
decision in Cartwright is one which has been impeding the proper development of the law or,
indeed, prompting unsatisfactory attempts to distinguish it. But nor is it a decision on which
people have come to rely. On the contrary, following Cartwright, the Bahamian government in
2004 amended section 11(5) of the 1994 Act so as to confer a specific right of appeal against the
grant of habeas corpus as well as against its refusal.
25. Viscount Dilhorne said in Hudson (at 993D):
“[I]f the view be that the decision is clearly wrong, it is, I think, easier to decide that a recent
case should not be followed than if it is one that has stood for a long time, for if it is in the latter
category many may have acted in reliance on it.”
135
Here, as in Horton v. Sadler, but unlike the position in Hudson itself (where three of the seven
members of the Appellate Committee thought the earlier decision of the House rightly decided so
that four of the seven in the event declined to depart from it), each member of the Board thinks
the earlier decision in Cartwright clearly wrong. The issue here is not, as in Hudson, “simply the
proper construction of complicated provisions in a statute” where “it cannot be said positively
that one construction is right and the other wrong” (Lord Reid at p.966). Nor is this the kind of
case which has prompted the United States Supreme Court to issue guidelines designed to ensure
that its previous decisions are not overruled merely (end of page 9) because a new majority
favour a different approach to certain highly contentious constitutional issues.
26. Rather their Lordships are concerned here with the liberty of a single individual who was set
free (however wrongly) in February 2002 and ought not thereafter to have been re-arrested.
Halsbury’s Laws (4th ed. reissue) vol.37 para 1242 states that:
“In its criminal jurisdiction the Court of Appeal applies the same principles [to the rules of
precedent] as on the civil side, but recognises that there are exceptions (a) where the applicant is
in prison and in the full Court’s opinion wrongly so; (b) where the Court thinks the law was
misunderstood or misapplied; ...”
Lord Woolf, C.J. in R v. Simpson [2004] Q.B. 118, 128 (para 27) described that statement as
“unexceptional” and “soundly based upon the authorities to which [it referred]”.
27. There can be no getting away from the fact that this appellant is wrongly imprisoned through
the misunderstanding or misapplication of the law by the Court of Appeal (and by the Board in
Cartwright) with regard to rights of appeal under the Bahamian legislation then in force.
28. Of course the view could be taken that the appellant had faced overwhelmingly strong
evidence justifying (indeed requiring) his extradition to the USA on the gravest possible charges
of drug dealing, that his habeas corpus challenge to committal ought certainly to have failed, and
that the erroneous decision in Cartwright has fortuitously enabled the Bahamian Court of Appeal
to correct a serious miscarriage of justice. Their Lordships, however, reject that view. The
Board’s task is to ensure justice according to law. According to law the Court of Appeal had no
jurisdiction to entertain the USA’s appeal, however meritorious that appeal was. So much is
plain. The Board should not now shrink from saying so. The appeal must accordingly be
allowed.
136
5
Do judges simply “discover” the law?
What is Declaratory Theory?
“the 'classical' notion that judges discover and declare law rather than invent or create it received
its most authoritative exposition in Blackstone's Commentaries on the Law of England.
Blackstone claimed that judges are 'the living oracles' of the law, obliged to decide in all cases of
doubt according to the law of the land:
“The judges possess delegated authority not to pronounce new law 'but to maintain and expound
the old one'. They do not alter or vary law which has been 'solemnly declared and determined';
they do not decide according to 'private sentiments' or their 'own private judgment' “
However, Isaacs J- CJ Australia - judges are bound by their oath to be loyal to the law itself. “If,
then, we find the law to be plainly in conflict with what we or any of our predecessors
erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to
the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court
should be persistently wrong than that it should be ultimately right.”
Case Law on the Declaratory Theory
The Judgments below provide apt discussions of the Declaratory Theory, in addition to
discussion of concepts such as the Ratio, Holding and Persuasive Dicta. The CCJ addresses the
question of over-ruling which should be considered in greater detail.
Moore v the Queen BB 2014 CA 2
"The Learned Trial Judge erred in law by pp 128, 131 to 132. In particular, counsel
failing to give the appellant full credit for the argued that Hall is a precedent of the CCJ
time which he spent on remand." In support which operates with retrospective effect and
of this contention counsel cited Callachand that, consequently, the appellant in this case
and another v. The State [2008] U.K.P.C. 49, should be given full discount for time spent
Romeo Dacosta Hall v. R (2011) 77 W.I.R 66 on remand awaiting trial.
CCJ (Hall); Jones v. SOS for Social Services
[10] There is no doubt that the decision in
[1972] A.C. 944; Jermaine Hazell v. R
Hall heralded a major departure from what
Criminal Appeal No. 24 of 2008 (unreported)
had previously been considered to be
(Hazell) and Professor Belle-Antoine,
established principle in sentencing when that
Commonwealth Caribbean Law and Legal
case laid down that full credit be given for
Systems, 2008, Routledge Cavendish, rd ed.,
137
time spent on remand. However, that case did Brown-Wilkinson had this to say of that
not consider and did not decide the question theory:
of whether this new principle was to apply
"The theoretical position has been that judges
retrospectively or, if it did, the extent to
do not make or change law: they discover and
which it would so apply. Those points were
declare the law which is throughout the same.
not argued before the CCJ and the decision
According to this theory, when an earlier
gives no express assistance on those points.
decision is overruled the law is not changed:
[11] Confronted with this lacuna in the Hall its true nature is disclosed, having existed in
decision, counsel sought to rely on a that form all along. This theoretical position
statement of Professor Antoine outlining the is, as Lord Reid said in the article "The Judge
classical explanation of the declaratory theory as Law Maker" (1972-1973) 12 J.S.P.T.L.
of the doctrine of judicial precedent. That (N.S) 22, a fairy tale in which no one any
statement reads: longer believes".
"Thus, when a higher court overrules a [14] The House of Lords in that case
decision, it has essentially found the correct articulated a "realistic" and limited theory of
statement of law and declared it, with the judicial precedent. Bascially, this theory
effect that the previous principle to the asserts that judicial changes in the law operate
contrary is deemed to be based on a retrospectively to the limited extent that the
misunderstanding of the law. Henceforth, the changes apply to all cases coming before a
earlier correct principle is deemed never to court whether or not the events in that case
have existed." occurred before or after the judicial
pronouncement of the changes. Lord Brown-
[12] Counsel extrapolated from this statement
Wilkinson explains it as follows at 358:
the conclusion that, in his words: "[T]he
decision made by the learned trial judge in "In truth, judges make and change the law.
this matter must now be deemed to have been The whole of the common law is judge-made
based on a misunderstanding of the law and and only by judicial change in the law is the
the principle of law enunciated in Romeo Hall common law kept relevant in a changing
applied to the appellant's sentence." Put world. But whilst the underlying myth has
another way, counsel's argument is that this been rejected, its progeny - the retrospective
Court is bound to apply Hall in this case as a effect of a change made by judicial decision-
result of the operation of the classical remains. As Lord Goff in his speech
declaratory theory of judicial precedent. demonstrates, in the absence of some form of
prospective overruling, a judgment overruling
[13] In the English House of Lords decision
an earlier decision is bound to operate to
in Kleinwort Benson Ltd. v. Lincoln City
some extent retrospectively: once the higher
Council et al [1999] 2 A.C. 349 at 358 Lord
court in the particular case has stated the
138
changed law, the law as so stated applies not [16] It is clear, then, that the law on the
only to that case but also to all cases application of Hall is far from clear and that it
subsequently coming before the courts for is only the CCJ which can give clarity to the
decision, even though the events in question application of Hall. Those knotty questions
in such cases occurred before the Court of were not addressed in Hazell and so this
Appeal decision was overruled." Court, applying the well known exception to
the stare decisis rule, is not bound by Hazell
[15] Kleinwort was a civil case, not a criminal
which has misinterpreted Hall, see, e.g.
case, and therefore did not have to consider
Holden and Co. v. Crown Prosecution Service
the specific difficulties that this reformulation
[1941] 2 K.B. 134. Therefore counsel's
posed in criminal cases or more specifically
submission that this court should follow
in relation to sentencing. In fact, the
Hazell, a decision in which this Court
Kleinwort reformulation presents significant
exercised its discretion and gave the appellant
difficulties in applying it to Hall. One such
a full discount for the time spent on remand
difficulty is: what is the appropriate date from
awaiting trial, is not sustainable.
which the Hall principle is to apply? Is it the
date when the High Court – the sentencing [17] The unsettled state of the law on the
court - imposed the sentence? Or, is it the application of Hall is evident in Weekes, an
date when the appeal is heard by the Court of application before the CCJ for leave to appeal
Appeal – the reviewing court? Another out of time where Nelson J opined obiter:
difficulty is: how is Hall to be applied to
"It is obvious that a judgment can only take
those who are already undergoing a sentence
effect from then on into the future. It can't be
but have not lodged an appeal in time as was
retrospective otherwise you would never be
the case in Jerry Anderson Weekes v. The
able to come to new decisions in law. The law
Queen AL 0011 of 2011 (Weekes)? Yet
could not evolve because you'd be constantly
another difficulty is: what are the implications
going one step forward and a hundred steps
of the Hall principle for habeas corpus
backwards. I don't think that's the way it
proceedings as the High Court had to
operates."
confront in Jeffrey Adolphus Gittens v. The
Superintendent of Prisons and The Attorney In our view, this obiter is correct in relation to
General High Court Suit No. 479 of 2013 Hall, for it is undesirable that a sentence,
(date of decision 5 July 2013)? It is necessary lawful when imposed, should have to be set
to resolve these difficulties, for as Lord Goff aside as having been imposed in error as a
noted at p. 378 in Kleinwort, when a result of a judicial decision only subsequently
significant judicial change is made to existing made, especially where that decision is silent
principle, it becomes necessary to ensure that as to its effective date.
that change takes its place as a congruent part
of the common law as a whole.
139
Burton v. The Queen; Nurse v. The Queen [2014] CCJ 6 (AJ)
The Romeo Hall Point

[20] The principal issue in the appeal before us applied by the trial judge, the Judges of Appeal
is whether the Court of Appeal should have were bound to apply the correct principle.
applied the principle set out in Romeo Hall Given that the Court of Appeal was aware of
requiring full credit for time spent on remand. the Romeo Hall principle at the time of the
That court rejected the argument that the appeal that court was bound by it and bound to
sentences imposed on the appellants were apply it.
excessive because the appellants had not been
given a full discount for the time spent on [22] The respondent took an opposing view and
remand. The maximum sentence for submitted that the principle set out in Romeo
manslaughter was life imprisonment and the Hall could not be applied retroactively. The
sentences were therefore justified by law. There court of first instance could not have applied
was no complaint that the trial judge had the tariff in the manner enunciated by this
improperly taken some matters into account or Court because it did not have benefit of that
acted on wrong principles. There was no basis decision at the time of sentencing, and the
for contending that the trial judge ought to have concept of judicial precedent provides only for
foreseen that the CCJ would have decided subsequent decisions to be bound by a
Romeo Hall as it did. Citing the case of R v. precedent. Accordingly, the Court of Appeal
Graham [1992] 2 Cr. App. R. (S) 312 (CA) for was precluded from applying Romeo Hall
the proposition that legislative alteration of the because that decision was made after the
statutory penalty between sentence and appeal learned judge imposed the sentences. The
could not apply to vary the prevailing tariff at respondent further contended that application
the time of sentencing, the court said: of Romeo Hall would produce the difficulty of
The legislature is the law making body for defining a "cap or ceiling" on the period of time
Barbados. When the legislature passes an within which an appellant could submit that his
enactment and wishes it to have retroactive or her sentence was subject to a reduction on
effect it is specifically so provided in the the basis of its proximity to the judgment
enactment; it is the duty of the court to expound handed down in Romeo Hall and asked: "how
and apply the law, not to make it. Therefore does a court calculate the length of time (from
when a person was sentenced in accordance the date of the decision in Romeo Hall to the
with the legislation in force at the time, and the date of sentence) which is permissible and upon
tariff prevailing at the time, the Court of which an appellant can entreat the Court of
Appeal will not intervene on account of Appeal or the Caribbean Court of Justice, to
subsequent changes in the legislation or in the apply that 'principle of proximity’?
tariff.
[23] We are of the view that the decision in the
[21] Counsel for Burton submitted that where a court below and the argument of the respondent
superior court declares a common law position before us proceeded on a wrong premise. The
it does not simply resolve the case before it but issue is not whether the trial judge had
rather it alters the law. If the relevant law as improperly taken some matters into account or
known and understood by the Court of Appeal failed to consider relevant matters or acted on
at the time of hearing is different from that wrong principles. In particular, it was
140
impossible for the trial judge to have taken "...once the higher court in the particular
account of our decision in Romeo Hall, which case has stated the changed law, the law as
had not been given at the time he pronounced so stated applies not only to that case but
sentence, and it would have been improper for also to all cases subsequently coming before
him to have attempted to anticipate that the courts for decision, even though the
decision. The real question is whether the Court events in question in such cases occurred
of Appeal hearing the appeal from the trial before the [previous decision] was
judge and seised, as it was by then, of the overruled.”
decision in Romeo Hall ought to have applied
the principle of full credit for time served on [26] In asserting the non-retroactivity of
remand. We consider that the Court of Appeal Romeo Hall the court below essayed that the
should have done so. matter had been put beyond doubt in Jerry
Anderson Weekes v. The Queen AL 0011 of
[24] We agree that, as a rule, legislative 2011. This case involved an application before
changes in the law do not have retroactive this Court for an extension of time within
effect unless specifically so provided in the which to appeal so as to enable the applicant to
enactment and agree with the decision in R obtain the benefit of the Romeo Hall ruling. In
v. Graham to that extent. But judicial an exchange with counsel for the applicant the
pronouncement of applicable common law presiding Justice, Nelson JCCJ, in a different
principles cannot be equated to legislative context from the current one, said:
changes. The orthodoxy is that judges do not It is obvious that a judgment can only take
make the law but merely declare what the effect from then on into the future. It can't be
law is. According to the declaratory theory, retrospective otherwise you would never be
a new decision merely declares the law as it able to come to new decisions in the law. The
always existed and shows that the law had law could not evolve because you'd be
been misapprehended in any earlier decision constantly going one step forward and a
to the contrary. Accordingly, "the hundred steps backwards. I don't think that's the
overruling of a precedent, unlike the repeal way it operates.
of a statute, has retrospective operation
because no established rule of law is thereby [27] We consider that the reliance on this
abolished." The retroactivity implicit in statement was misplaced for two reasons.
judge-made rules may therefore be more Firstly, the observations of Justice Nelson were
apparent than real. But it is not necessary to made in the entirely different context of res
subscribe to the declaratory theory to arrive judicata from that which arises on the present
at the same conclusion; even those cases appeal. In Weekes an application for extension
throwing doubts on the theory retain its of time in which to appeal was rejected. The
progeny of the retrospective effect of a applicant had been sentenced to a period of 14
change made by judicial decision. In years imprisonment in 2003 for unlawful
Kleinwort Benson Ltd. v. Lincoln City killing. His appeal to the Court of Appeal was
Council [1999] 2 A.C. 349 Lord Browne- dismissed in 2006 and the sentence affirmed.
Wilkinson explained that notwithstanding Shortly after the decision in Romeo Hall in
the rejection of the underlying myth that 2011 he sought leave to apply for an extension
judges merely declare rather than make the of time to file an application for special leave to
law, it remained the case that, appeal and argued that he had a real prospect of
141
success in obtaining a reduction in his sentence basis of time spent on remand. Such persons
in accordance with the Romeo Hall principle. may have been incarcerated for many years
We refused the application on the basis that it prior to the declaration of the changed law. We
was necessary to bring finality to judicial note that this problem does not arise in the
proceedings; it was not permissible for the present case in that the appellants were in the
applicant to reopen his case some five years process of appealing the sentence imposed by
after sentence had been affirmed by the Court the trial judge when Romeo Hall was decided.
of Appeal. It is, however, a quite different thing There was no need to apply for an extension of
to say that an appellant whose appeal is time in which to lodge the appeal to the Court
pending before the court cannot benefit from of Appeal. Indeed, a further appeal was
the earlier declaration of the law. possible to this Court. The present case is
therefore very similar to Hazell v. The Queen
[28] Secondly, and more generally, whilst the Criminal Appeal No. 24 of 2008, Court of
judgments of this Court are binding on Appeal, Barbados, in which Peter Williams,
lower courts and any obiter dictum intended J.A. for the Court of Appeal disposed of the
to clarify the law should also be followed in appeal by noting that while the notional
appropriate cases, the statements or sentence was eight years, "full credit must be
observations of members of the Court given in accordance with Romeo Hall decided
speaking extemporaneously in their after the judge imposed sentence, for the two
individual capacity fall into an entirely years and 69 days spent in custody.”
different category. Such statements or
observations would not have had the benefit [30] We consider that the basic rule is that
of deliberation. For this reason they cannot prisoners whose cases or appeals are pending or
be taken as representing the decision or the in respect of whom the statutory period to
view of the Court. Furthermore, however appeal to the courts has not yet expired are
phrased, the statements or observations may entitled to benefit from the ruling in Romeo
not have been intended to state a definite Hall. Prima face no other prisoner is so entitled.
position but rather to test a proposition or to There remains a possibility of applying for an
facilitate enquiry into the nature or strength extension of time within which to lodge an
of specific argument by counsel. If such appeal but such an application must be
statements or observations could be relied supported by sound and convincing argument.
upon as authority there could be judicial The applicant bears a heavy burden to satisfy
concern about the expression of views from the court on a number of matters including that
the Bench during legal argument and the there was good reason for the delay. It is only
freedom of the Court to inquire into all in wholly exceptional circumstances that an
aspects of argument by Counsel could extension would be granted in order to file an
thereby be compromised or undermined. appeal in order to benefit from the declaration
of the law in Romeo Hall and the chances of
[29] This Court is alive to the difficulty alluded success of such an application become more
to by the respondent of defining the point in the remote with the passage of time since that
past to which the principle in Romeo Hall may decision. Good reason for delay becomes more
be said to extend, thus granting a right to and more difficult to identify. After the period
persons now serving custodial sentences to for appeal has passed the judicial process
apply for a reduction of their sentences on the has prima facie run its course and is
142
exhausted and any attempt to benefit from time spent on remand should be counted as
the declaration of the changed law is more time served. The majority considered that the
properly addressed to and by the Executive time spent on remand could not be treated as
through the exercise of the prerogative of "prison years" and grossed up to calendar years
mercy. This was the effect of our judgment in because remission of sentences was earned
Weekes. whilst serving sentences in prison and were
normally effected by administrative action
[31] Finally, Counsel for the appellants urged under the prison rules during the prisoner's
this Court to adopt the 'set off approach to incarceration.
sentencing as advanced by Justice Wit in his
minority decision in Romeo Hall in preference [33] This Court is competent to depart from
to the majority decision which required that the its previous decision if it considers it right to
sentencing judge decide the 'notional term' do so but it will refrain from the exercise of
from which the period spent on remand is this power in the absence of compelling
deducted. Under Justice Wit's formulation the reasons. It will only depart from a previous
trial judge would impose the appropriate decision in exceptional circumstances. The
sentence while declaring that the time spent in doctrine of precedent requires a level of
custody will count as time served under the certainty that is intolerant of frequent
sentence. This would permit the time spent on overturn of the decisions of the highest
remand to count for purposes of remission court, especially in relation to decisions
under the prison rules and has the obvious recently given. Recurrent reversals could
advantage to the prisoner that computation of also weaken respect for the rule of law.
his or her period of remission would be on the Moreover, such reversals are ideally
entire sentence and not just the term of the undertaken by the Full Bench sitting en banc
sentence less the time spent on remand. after mature reflection and only after the
most extensive submissions on the point at
[32] This matter was fully considered by this issue, which in this case would include
Court in Romeo Hall. The majority was well submissions on the relevant legislative
aware of the practical consequences in adopting landscape, prison rules and administrative
the approach of Justice Wit but was of the practices. For these reasons the Court
considered view that legislative intervention declines the invitation of Counsel to
was necessary to empower it to declare that reconsider its decision in Romeo Hall.
Similarly, See R.A. Holdings Limited v Rampersad (Liquidator of Hindu Credit Union Co-
operative) TT 2014 HC 118
“it is unsafe to treat something said in passing during the course of an open discussion in court as
a binding judicial precedent. The development of the common law depends upon the doctrine of
stare decisis. A precedent creates certainty. The doctrine would be undermined by reliance on
remarks made otherwise than in reasoned written judgments. To my mind, the transcript should
143
be regarded as part of the record-keeping in the particular case out of which it emanated and not
ordinarily as a statement of law of general application. This is especially so when the accuracy of
the transcript is not verified by the presiding judges of the court. In any event, the comment does
not form part of the ratio decidendi of that case, insofar as it was accurately captured by the
transcriptionist. The matter before the Court of Appeal involved a procedural and not a
substantive point of law.”
6
Hierarchy of Courts and the Doctrine of Precedent
Key Points:
• Examine the ability of and willingness of the Privy Council to Depart from previous Decisions
• The Ability of the CCJ to Depart from Previous Decisions (See Decision in Burton above)
• The Relationship between Privy Council Decisions and HOL/UKSC Decisions
• The Relationship between HOL and JCPC Decisions
Must Read: New Final Appellate Courts in the Commonwealth and the Doctrine of Precedent
Hon. Justice Rolston Nelson Commonwealth Law Bulletin Vol. 32, Issue 4, 2006 (uploaded to e-
learning)
Extracts Below are provided from the Article by Justice Nelson and places this area in
appropriate context. (This should help you in reading the full article.)
JCPC and CCJ Not bound by Previous Decisions

The Privy Council is not Bound by its A‐G of St Christopher, Nevis and Anguilla v
previous decisions; and has never been. In Reynolds (1979) 43 WIR 108, 123;
Burton (above) the CCJ indicates that it is Lewis v Attorney General of Jamaica [2001] 2
competent to depart from its earlier AC 50, 75.
decisions.
The absence of a requirement to follow earlier depart from recent fully‐reasoned decisions
decisions, does not however provide for free- unless there are strong grounds to do so.’ Lord
flowing reconsideration of issues. In Lewis v Hoffman’s dissent in Lewis is built around this
A‐G at p 75, Lord Slynn, speaking for the very notion of the stability of the common law.
majority, said: ‘The need for legal certainty (see the general arguments in favor of the
demands that they should be very reluctant to precedent)
144
“Indeed, the Privy Council in Read v Bishop of erroneously thought it to be, we have, as I
Lincoln [1892] AC 644, an ecclesiastical conceive, no right to choose between giving
appeal, stated that it was not bound by its effect to the law, and maintaining an incorrect
previous decisions. Lord Halsbury LC said at p interpretation. It is not, in my opinion, better
60 J: that the Court should be persistently wrong
than it should be ultimately right.
Whilst fully sensible of the weight to be
attached to such decisions, their Lordships are In Canada, in Reference re Farm Products
at the same time bound to examine the reasons Marketing Act (Ontario) (1957) 7 DLR (2nd)
upon which the decisions rest, and to give 257, Rand J said in the Supreme Court of
effect to their own view of the Law.” Canada:
The High Court of Australia did not consider The powers of this Court in the exercise of its
itself bound by its own previous decisions, and jurisdiction are no less in scope than those
considered it was duty bound to overturn its formerly exercised in relation to Canada by the
previous decisions if later found to be Judicial Committee. From time to time the
erroneous. Isaacs J in Australian Agricultural Committee has modified the language used by
Company v Federated Engine Drivers etc. it.. and that incident of judicial power must
(1913) 17 CLR 261 said: now, in the same manner and with the same
authority, wherever deemed necessary, be
The oath of a Justice of this Court is ‘to do
exercised in revising or restating those
right to all manner of people according to law.’
formulations that have come down to us.
Our sworn loyalty is to the law itself, and to the
organic law of the Constitution first of all. If,
See Antoine on Persistent Over-ruling in the
then, we find the law to be plainly in conflict
Commonwealth Caribbean Human Rights
with what we or any of our predecessors
Jurisprudence
Relationship between UKSC/HOL Decisions and the JCPC Decisions

HOL Decisions - on points of English Law, are binding on the JCPC.
“Tai Hing Cotton Mill Ltd v Liu Chong The Privy Council held that once the
Hing Bank Ltd [1986] 1 AC 80, the Privy applicable law was English law the Judicial
Council held that a customer owed no duty to Committee would follow a House of Lords
his bank to take reasonable precautions to decision that covered the point in issue. Lord
prevent forged cheques being presented to the Scarman said: ‘The Judicial Committee is not
bank or to check his bank statements and the final judicial authority for the
notify the bank of unauthorised debits. determination of English law. That is the
responsibility of the House of Lords in its
145
judicial capacity.’ 1 1 In special circumstances AC 546, which enunciated the proposition

where nine Lords of Appeal in Ordinary sat as that where common law territories re‐
the Board of the Privy Council and agreed that enacted English legislation there should be
the result would definitively clarify English uniform interpretation of the common
law relating to the standard of self‐control legislative provisions in accordance with
applicable to the partial defence of English law.
provocation, an English Court of Appeal was
Their Lordships appeared to concede that the
bound to prefer that decision of the Privy
principle did not apply if custom, statute or
Council to an earlier ruling of the House of
other reasons peculiar to the jurisdiction
Lords to the contrary: see R v James; R v
militated against its application. Yet the Privy
Karimi [2006] EWCA Crim 14, [2006] 1 All
Council did not consider whether the intention
ER 758.
and purpose of the local legislature in re‐
The effect of the Tai Hing case was to expand enacting an English statute were relevant.”
the principle in de Lasala v de Lasala, [1980]
Similarly, See Michelle Smellie v NCB Jamaica Ltd [2016] JMCC Comm 28
Let me say also, that I respectfully disagree with the suggestion by my sister Judge
that the conduct recommended for the future, as per Lord Nicholls in Etridge, does
not apply until our highest court so pronounces. Decisions of the highest court in
England are highly persuasive and generally speaking declaratory of the common
law. The members of the House of Lords (now UK Supreme Court) are also the
same Judges who sit in our highest court as the Judicial Committee of the Privy
Council. Statements of principle and declarations of the common law are therefore
to be accorded some respect. They ought only to be departed from if local
circumstances, existing statutory provisions or some - 7 - other peculiarity renders
it unsafe, unwise or unfair to do so. I can think of no reason in principle or policy to
depart from Etridge. Therefore any bank in Jamaica being advised as to the law
subsequent to Etridge would or ought to be cautioned in accordance with Lord
Nicholls’ guidelines. It will be a mixed question of law and fact whether the
Defendant in this case has met the relevant standard of conduct.
N.B. - with regards to the Common Law (general principles of law) the UK’s Top Court
is deemed to be ultimate authority on the common law unless there has been a
divergence (recall our discussion on whether the common law was universal or whether
it can and ought to be localized)
146
Relationship between JCPC Decisions and HOL/UKSC Decisions

The Judgement in Willers v Joyce [2016] UKSC 44 is useful for a number of reasons:
1) it describes in a summary manner- the nature of the doctrine of precedent, and the hierarchy of
the Courts
2) It explains the relationship between the JCPC and HOL, where decisions of the JCPC are not
treated as binding on the HoL
Consider whether jurisdictions bound by the JCPC should be developing an indigenous

common law or the common law as declared in England.
What role may the doctrine of local circumstances play in the development of the common
law or whether the Constitution should influence the development of the common law?
147
Judicial precedent: UK Supreme Court clarifies the status of Privy Council decisions
The following is a helpful article produced by the firm Allen & Overy on the judgment in
Willers v Joyce available at: http://www.allenovery.com/publications/en-gb/Pages/Judicial-
precedent-supreme-court-clarifies-the-status-of-privy-council-decisions.aspx
In Willers v Joyce & anr [2016] UKSC 43, first instance judge, Amanda Tipples QC,
the Supreme Court has provided clarity on a reached that conclusion on the basis that she
previously unsettled point of the doctrine of was bound by a decision of the House of
precedent: the English courts should never Lords, despite a subsequent conflicting
follow a decision of the Privy Council if it is decision by the Judicial Committee of the
inconsistent with a decision that would Privy Council (the JCPC). The judge
otherwise be binding on the lower court, concluded that she could only follow a JCPC
unless the Privy Council has expressly directed decision to the opposite effect “if, for all
that domestic courts should treat its decision as practical purposes, it is a foregone conclusion
representing the law of England and Wales. that the Supreme Court will follow the
decision of the Privy Council” (which, on the
The point arose in the context of an appeal
facts, it was not). The appellant appealed and
against a decision that the tort of malicious
was granted a leapfrog certificate to the
prosecution was not available in respect of
Supreme Court who granted permission to
civil (as opposed to criminal) proceedings. The
appeal.
148
By a 5:4 majority decision, the Supreme Court of courts in England and Wales. He highlights
held that a tort of malicious prosecution is its “fundamental” nature; a “natural and
equally applicable to civil as well as criminal necessary ingredient” of the common law
cases. Separately, Lord Neuberger delivered a system, but one that is rather more nuanced
unanimous decision on the status of JCPC when it comes to courts of co-ordinate
decisions in England and Wales. jurisdiction, such as the JCPC. While there is
no doubt that (unless there is a decision of a
The JCPC
superior court to the contrary effect) a court in
Although the function of the JCPC has varied England and Wales can normally be expected
somewhat since its creation by the Judicial to follow a JCPC decision, there is no question
Committee Act 1833, its primary function of it being bound to do so as a matter of
today is as the final appellate court for a precedent. Likewise, there is also no doubt that
number of Commonwealth countries, the 14 a court should not usually follow a JCPC
British Overseas Territories, the Channel decision if it is inconsistent with a decision of
Islands and the Isle of Man. The JCPC advises a court which is binding in accordance with
the monarch of the disposal of appeals or, in the doctrine of precedent.
the case of republics, determines the disposal
The question, however, is whether that latter
of appeals. Accordingly, the JCPC is not a
rule is absolute, or whether a JCPC decision
court of any part of the United Kingdom.
can take precedence on the basis that it is a
That said, the JCPC almost always applies
“foregone conclusion” that the Supreme Court
the common law, and either all or four of
would also follow the JCPC decision. That, as
the five Privy Counsellors who sit on any
mentioned, was the decision of the High Court
appeal will almost always be Justices of the
in Willers v Joyce. Lord Neuberger concluded
Supreme Court.
it more satisfactory to take an absolute
As a matter of precedent, given the JCPC is position, stating that an English court should
not a UK court, its decisions cannot be binding never follow a decision of the JCPC if it is
on any judge of England and Wales. However, inconsistent with a decision that would
a JCPC decision should normally be afforded otherwise be binding on the lower court.
great weight and persuasive value.
However, Lord Neubeger carved out one
Conversely, the JCPC, when applying the
exception to this: when an appeal to the JCPC
law of England and Wales, should consider
challenges the correctness of an earlier
itself bound by any House of Lords or
decision on a point of English law (whether of
Supreme Court decision.
the House of Lords or the Supreme Court, or
The decision of the Supreme Court of the Court of Appeal), and where the JCPC
decides that the House of Lords or Supreme
Lord Neuberger’s decision first sets out the
Court, or the Court of Appeal, may be wrong.
doctrine of precedent applied to the hierarchy
149
In this instance, Lord Neuberger says, the JCPC as representing the law of England and
JCPC should have the power to direct the Wales.
English courts to henceforth apply the JCPC
COMMENT
decision as precedent instead of the earlier
English court decision. To support this view, it This decision provides clarity and coherence to
was pointed out that were this not the case, a previously unsettled issue as to whether a
“[i]t would plainly be unfortunate in practical lower court could apply a JCPC decision if it
terms”. Moreover, this modified approach is were a “foregone conclusion” that the JCPC’s
preferable in light of the fact that the President view would be accepted by a superior court.
of the JCPC is the same person as the The Supreme Court has rejected that approach,
President of the Supreme Court and that panels confirming that the rule is an absolute one
of the JCPC normally consist of Justices of the except if the JCPC has expressly directed
Supreme Court. domestic courts to treat a decision as
representing the law of England and Wales.
Accordingly Lord Neuberger directed the
Where there is no inconsistency between the
modification of JCPC Practice Directions 3.1.3
decision of a superior court and the JCPC,
and 4.2.2 as follows:
JCPC decisions will continue to be regarded as
when an appeal to the JCPC involves deciding being of “great weight and persuasive value”
upon the correctness of an earlier decision of (para. 12).
the House of Lords or Supreme Court, or the
“Exceptionally, In special circumstances
Court of Appeal, the registrar of the JCPC will
where nine Lords of Appeal in Ordinary sat as
draw the attention of the President of the JCPC
the Board of the Privy Council and agreed that
to this fact; and
the result would definitively clarify English
the President can then take that fact into law relating to the standard of self‐control
account when deciding on the constitution and applicable to the partial defence of
size of the panel which is to hear the appeal, provocation, an English Court of Appeal was
and the members of that panel can, if they bound to prefer that decision of the Privy
think it appropriate, not only decide that the Council to an earlier ruling of the House of
earlier decision of the House of Lords or Lords to the contrary: see R v James; R v
Supreme Court, or of the Court of Appeal, was Karimi [2006] EWCA Crim 14, [2006] 1 All
wrong, but also can expressly direct that ER 758.”
domestic courts should treat the decision of the
Malleability of the Doctrine of Precedent
Extract from Elliot, Frances and Quinn pg. 22

150
Judges’ decisions may not be as neutral as Blackstone’s declaratory theory suggests: they have to
make choices which are by no means spelt out by precedents. Yet, rather than openly stating that
they are choosing between two or more equally relevant precedents, the courts find ways to avoid
awkward ones, which give the impression that the precedents they do choose to follow are the
only ones that could possibly apply. In theory, only the House of Lords, which can overrule its
own decisions as well as those of other courts, can depart from precedent: all the other courts
must follow the precedent that applies in a particular case, however much they dislike it. In fact,
there are a number of ways in which judges may avoid awkward precedents that at first sight
might appear binding:
• By distinguishing the awkward precedent on parts of the judgment which seem to apply to
its facts – arguing that the facts of the case their case are not part of the ratio, and are
under consideration are different in some only obiter dicta, which they are not obliged
important way from those of the previous to follow.
case, and therefore the rule laid down does
not apply to them. Since the facts are unlikely • By arguing that the precedent has no clear
to be identical, this is the simplest way to ratio decidendi.
avoid an awkward precedent, and the courts
have made some extremely narrow • There are usually three judges sitting in Court
distinctions in this way. l By distinguishing of Appeal cases, and five in the House of
the point of law – arguing that the legal Lords. Where each judge in the former case
question answered by the precedent is not the has given a different reason for coming to the
same as that asked in the present case. same decision, or where, for example, two
judges of the House of Lords take one view,
• By stating that the precedent has been two more another, and the fifth agrees with
superseded by more recent decisions, and is none of them, it can be argued that there is no
therefore outdated. one clear ratio decidendi for the decision. l By
claiming that the precedent is inconsistent
• By giving the precedent a very narrow ratio with a later decision of a higher court, and has
decidendi. The only part of a decision that been overruled by implication.
forms binding precedent is the ratio, the legal
principle on which the decision is based. • By stating that the previous decision was
Since judges never state ‘this is the ratio made per incuriam, meaning that the court
decidendi’, it is possible to argue at some failed to consider some relevant statute or
length about which bits of the judgment precedent. This method is used only rarely,
actually form the ratio and therefore bind since it clearly undermines the status of the
courts in later cases. Judges wishing to avoid court below.
an awkward precedent may reason that those
7
151
Court of Appeal and the Doctrine of Precedent
In this section, attention is paid to the extent to which the COA is bound by:
● Decisions of Higher Courts through the Per Incuriam Rule

● Their Own previous Decisions
● Decisions of the JCPC from another jurisdiction
● The HOL
Antoine states that: “In general, Courts of Appeal are bound by their own earlier decisions.
However, there are three exceptional circumstances where such decisions are not binding. First, a
Court of Appeal may choose between two conflicting authorities. The decision which is not
followed is deemed to be overruled. Secondly, a Court of Appeal is bound to refuse to follow its
own decision where, although not expressly overruled, it conflicts with a decision of a higher
court. In the Commonwealth Caribbean, this would mean a decision from the Privy Council or
the CCJ, as the case may be. Finally, as explained earlier, a Court of Appeal is not bound to
follow a decision if it has been reached per incuriam”
Per Incuriam
The Court has severely limited the per incuriam doctrine, particularly as it relates to the ability of
COA judges to declare a judgment of superior courts to be per incuriam.
The Use and Limits of the Per Incuriam Rule

Morelle v Wakeling [1955] 1 All E.R. 708, 714-718.
Broome v Cassel Co. Ltd (1972)1 All E.R. 801.
Young v Bristol Aeroplane (1944) 2 All E.R. 293; [1944] K.B. 718.
Key Points
Jamadar JA (dissenting) in Devant decision of the Court of Appeal, or (ii) the

Maharaj decision was per incuriam.
Young v Bristol Aeroplane Co Ltd Lord
Therefore the rule in Young v Bristol Greene MR said:
Aeroplane C. Ltd. [1944] 2 All E.R. 293
applies; lt cannot ... be right to say that in such a case
the Court of Appeal is bound by its own (where the court is satisfied that an earlier
decision was given in ignorance of the terms
previous decisions unless: (i) it conflicts with a
of a statute or a rule having the force of a
Privy Council decision or with another
152
statute) the court is entitled to disregard the consistently with the stare decisis rule which
statutory provision and is bound to follow a is an essential feature of our law, be, in the
decision of its own given when that provision language of Lord Greene MR, of the rarest
was not present to its mind. Cases of this occurrence.
description are examples of decisions given
per incuriam. We do not think that it would be Lord Denning MR said in Miliangos v George
right to say that there may not be other cases Frank (Textiles) Ltd that 'a case is not decided
of decisions given per incuriam in which this per incuriam because counsel have not cited
court might properly consider itself entitled all the relevant authorities or referred to this or
not to follow an earlier decision of its own. that rule of court or statutory provision. The
Such cases would obviously be of the rarest court does its own researches itself and
occurrence and must be dealt with in consults authorities; and these may never
accordance with their special facts. receive mention in the judgments.' 124 In
Broome v Casse1fl Lord Diplock rejected the
In Morelle v Wakeling it was stated by Lord l
notion that Rookes v Barnard was per
Evershed MR:
incuriam because part of the solution adopted
As a general rule the only cases in which in that decision had not been suggested by
decisions should be held to have been given counsel in the course of their arguments: 'On
per incuriam are those decisions given in matters of law no court is restricted in its
ignorance or forgetful- ness of some decision to follow the submissions made to it
inconsistent statutory provision or of some by counsel for one or other of the parties.'
authority binding on the court concerned: so Courts are entitled 'to come to a conclusion of
that in such cases some part of the decision or law and legal policy different from that which
some step in the reasoning on which it is based an individual counsel had propounded'.
is found, on that account, to be demonstrably
wrong. This definition is not necessarily
exhaustive, but cases not strictly within it
which can properly be held to have been
decided per incuriam must, in our judgment,
COA Bound By Previous Decisions

In AG of St Kitts and Nevis v Reynolds, the court was of the view that it was: most important in
the public interest, that the Court of Appeal should be bound by its own decisions on questions of
law, save for the three exceptions specified in Young v Bristol Aeroplane Ltd.
See the discussion on pg. 138-140 of Antoine
Bound by other decisions of the JCPC as the highest Court of other

Jurisdictions
153
Theoretically, decisions from other jurisdiction not binding; yet the Courts have by and large
treated it as such with notable examples.
Jamaica Carpet Mills Ltd. v First Valley Bank Goodridge v Nagassar Civ. Appeal No. 234 of
(1986) 45 WIR 278 (JM) where Rowe P 2011, Mendonca JA applied Ocean Estates
opined as follows:…I have to consider briefly Ltd: “34. With respect to the other submission
the relationship between the courts in Jamaica that Ocean Estates, being a case from the
on the one hand and the Judicial Committee of Bahamas, is not binding on this Court, I do not
the Privy Council on the other hand. In Baker believe that in itself is a good and sufficient
v R(1975) 23 WIR 463, Lord Diplock, in reason for it not to be binding. Decisions of the
delivering the decision of the majority of the Privy Council on appeals from other
Board, said (at page 471): ‘Although the jurisdictions are binding on this Court where
Judicial Committee is not itself strictly the issue of law is the same before this Court
bound by the ratio decidendi of its own as it was before the Privy Council and there is
previous decisions, courts in Jamaica are nothing to suggest that the law in this
bound as a general rule to follow every part jurisdiction is any different (see Jamaica
of the ratio decidendi of a decision of this Carpet Mills Ltd. v First Valley Bank
Board in an appeal from Jamaica that bears (1986) 45 WIR 278)
the authority of the Board itself.’ It has been
However, where there is a later decision of
argued before us that the binding authority of
the HOL (which does not ordinarily bind
the decisions of the Privy Council on courts of
our Courts as it is not a Court of Superior
Jamaica only applies to decisions in appeals
Record for CCLS- the COA and lower
from Jamaica and the authority for such a
Courts may follow the HOL decision.
proposition is said to be Baker v R(above). I
do not share that view. I was a member of the In Jamaica Carpet Mills Ltd v First Valley
court in R v Commissioner of Police, ex Bank (1986) 45 WIR 278, the Court of
parte Cephas (No 2)(1976) 24 WIR 500, in Appeal of Jamaica was faced with two
which Henry J, in delivering th judgment of conflicting decisions, one from the House of
the Full Court, referred to the decision of Lords and the other from the Privy Council.
the Privy Council, Eshugbayi Eleko v. The Privy Council held that where a
Nigeria Government Officer decision of the Privy Council conflicted with
Administering[1928] AC 459, and said (at a later decision of the House of Lords in
page 502): ‘That judgment is binding on which the error of the earlier decision is
this court because although it was given in a expressly stated, a court which is bound by
case coming from another territory the Privy Council decisions may follow the
issue of law in both cases is the same.’…” decision of the House of Lords.
154
However, In Qatar v Sheikh Khalifa, Sir Phillip Bailhache, quoting from the earlier case of Hall
v AG, 178 said: The decisions of the Privy Council, in so far as they decide the law of Jersey,
are of course binding on all Jersey courts. But a decision of the Privy Council which decides the
law of Hong Kong, New Zealand or any other country is not binding. Such decisions are
persuasive but the degree of persuasiveness will depend on the similarity of the point of issue
between the law of Jersey and the law of the country from which the appeal is being brought…
We would respectively add that the degree of persuasiveness may also depend upon social and
policy considerations particular to this jurisdiction.
Persuasive nature of Judgments of the CCJ on Courts bound by the Privy

Council
In Marin v AG Belize the CCJ (by a majority) extended the common law of misfeasance in
public office to make it available to the Crown through Attorney General. This decision has been
embraced by the Eastern Caribbean Supreme Court. In AG v Chastanet the first instance judge
said that CCJ cases were "highly persuasive" but the court was "not bound" by it and did not
consider himself bound to follow it(para 41). The Court of Appeal also seems to have accepted
that Marin was highly persuasive, agreed with the reasoning in Marin and since both counsel
agreed that it should apply proceeded on the assumption that it did:
Para [160] of the Castanet Judgement- Attorney General v Allen Castanet & Kenneth
Cazaubon Appeal No. 16 of 2015
For the sake of completeness, I will briefly examine the matter of misfeasance in public
office. The learned judge said that Marin’s majority decision is highly persuasive,
however the learned judge expressed his misgivings as to whether the decision of the
court was binding on the High Court. Fortunately, learned Queen’s Counsel and Senior
Counsel accepted without any reservation that the decision of Marin was good law. This
obviates the need for me to make any such pronouncement. However and for what it is
worth in my respectful view the decision of the majority in Marin is forward thinking,
progressive, jurisprudentially enlightening, scholarly and highly persuasive. I will have
no difficulty in recognising the ability of the Attorney General in an appropriate case to
file a claim for the tort of misfeasance based on the principles that were enunciated by
the majority in Marin.
Justice Anderson in the Caribbean Court of Justice and the Development of Caribbean
Jurisprudence- Theoretical and Practical Dimensions explains the impact of the CCJ’s
judgments
155
In total, we have been able to identify thirty-two (32) cases that have cited CCJ
decisions. As might be expected, those countries that have acceded to the CCJ‟s
appellate jurisdiction – Barbados, Guyana, and Belize – cite CCJ judgments most
frequently. Nine (9) of the thirty-two cases with CCJ citations come from Barbados, five
(5) from Belize, and three (3) from Guyana. Interestingly, they are not just citing
appellate cases that originated in their own countries. Belizean courts, for instance, cite
CCJ cases that came from both Barbados and Guyana. What is more, the Belizean courts
cite these decisions in judgments, not just in the application of Belize land law, or the
duties of vendors and purchasers to each other; but also in the interpretation of the Belize
Constitution. 20 Indeed, the impact of CCJ decisions goes well beyond that of the three
member-states that have acceded to Court‟s appellate jurisdiction. At least seven (7)
judgments from Trinidad & Tobago courts and four (4) from Jamaican courts cite CCJ
decisions of appeals that came from either Barbados or Guyana. And at least one (1)
decision each from Antigua & Barbuda, The Bahamas, St. Kitts & Nevis, Grenada and
Singapore cites a CCJ appellate decision. If these courts are citing CCJ opinions, it
suggests to me – and, indeed, some of the written decisions say as much – that the
attorneys before these courts are utilizing these decisions in their arguments; thinking
about these judgments in their day-to-day practice of law; and, critical to the building of
a Caribbean jurisprudence, absorbing these cases and the principles they espouse into
their repertoires of legal reasoning and problem solving.
Impact of CCJ Judgements in the Original Jurisdiction on the Appellate

Jurisdiction
Position in Belize - Maurice Tomlinson [2016] CCJ 1
[37] The Court reminds itself that its role in the Original Jurisdiction differs from its role
in the Appellate Jurisdiction. At the same time, however, the Court cannot ignore the
fact that it is the final appellate court for Belize. Accordingly, when the Court
pronounces on the meaning, interpretation or application of a provision of the national
law of Belize that pronouncement is authoritative even when it sits in its original
jurisdiction. [38] In sum the Court remains unconvinced
Compared to the Position in Trinidad:
[39] … this Court is not the final appellate court for Trinidad and Tobago and therefore
cannot be as definitive in its remarks concerning interpretation of the national law of
Trinidad and Tobago.
156
Lower Court Judges are Bound by decisions by Superior Courts

Harding v Harding BB 2015 HC 28
[16] The Law relating to forum non conveniens and the applicable principles have been
pronounced upon by the Court of Appeal of Barbados in Downer where Simmons CJ., whilst
holding firmly to his opinion that where the provisions of the FLA fell to be construed, the
Australian authorities ought to be followed, declined to follow the Australian Courts and
preferred the reasoning of the English Courts in Spiliada. He expressed his concerns relative to
the soundness of the reasoning in the Australian High Court decisions.
[17] I have read the decision in Downer and accept the rationale given by the Court of Appeal of
Barbados for its reluctance to follow the Australian decisions. Furthermore, I am bound by the
doctrine of judicial precedent to follow the decision of the Court of Appeal of Barbados unless
that decision can be distinguished. I see no distinguishing features here.
Magistrates Bound to Follow Courts of Record

Maycock et Al v Commissioner of Police BS 1995 SC 32:
I adopt the opinion of Smith, J., in Breffe, et than the Code requires. Time should not be
al v. COP, Criminal Appeal number 6 of wasted by magistrates writing out long and
1988: detailed rulings on submissions made by
"...a full trial before a magistrate is a counsel that the accused person has no case to
summary trial and there is a great deal meant answer. A Magistrate's Court is not a Court of
by 'a summary trial.' It means that the case is record and its decisions do not set out the law
to be dealt with in a concise and prompt as judicial precedents. There is nothing to be
manner. There is not to be more formalities achieved by penning dissertations.
McClean et Al v Regina KY 1990 GC 25 -notes the role of Magistrate Courts in relation to
Precedent.
In making his submission of no case to Now I must say that this Court is not easily
answer counsel for Foster referred to the taken aback but that comment, and the
Gibson decision whereupon the magistrate is attitude behind it, is most surprising. Judicial
recorded as having made this response: discipline demands that each Court in the
“First of all, Mr. Furniss, this Court will not judicial hierarchy accepts and applies the law
take cognizance of any judgment that was as interpreted by the Court above it, unless
given in that Gibson case. They will have to and until that interpretation is reversed or
give it again as far as this Court is concerned; amended by yet a higher Court. It is not for
over and over and over again. So it is out.” this Court of the Summary Court to refuse to
apply a decision of the Court of Appeal. To
157
do so makes a nonsense of our system of will not fail to apply the correct legal
judicial precedent. I trust that the remark principles in a case o this king to avoid
quoted above was an aberration on the part of attracting the kind of criticism which he had
the learned Magistrate and will not recur, and attracted in this case.
I trust that in the future the learned Magistrate
To what extent has the doctrine of precedent limited the development of a regional
jurisprudence. Based on the concepts we have covered in this worksheet and in the
reception of law doctrine, how do these structuring devices (the doctrine of precedent and
the reception of law) limit the making of a ‘radically ours’ jurisprudence.
See Antoine, p. 156- 165 on the Development of an indigenous jurisprudence
See Tracy Robinson and Arif Bulkan, Constitutional Comparisons by a Supranational Court in
Flux: The Privacy Council and Caribbean Bills of Rights, The Modern Law Review Vol. 80,
May 2017 No.13 (This examines the Doctrine of Precedent in the Commonwealth Caribbean in
relation to Human Rights Litigation. This is helpful reading for more in-depth analysis of the
158
extent to which we have been well-served in the region by the JCPC and whether their
jurisprudence encourages confidence for the retention of the JCPC.)
Disadvantages of the System of Judicial declaratory theory is inconsistent with stare

Precedent (Generally [p. 35] Sources of decisis, Blackstone's ideas must be rejected.
Hong Kong Law)
(2) A second reason for following precedent
Stare decisis guaran tees that some judicial is that it makes law technical and
decisions will be 'wrong' or 'sub-optimal'. conservative - yet no particular virtue can be
And even when a superior-court judge is not ascribed to the technical and conservative
bound by any particular precedent, the nature of the common law.
knowledge that his decision will be a
precedent constraining the decision-making (3) Respect for the opinions of one's
of future judges may also require or justify a ancestors (Blackstone wrote: 'For though
decision which is sub-optimal (in the sense their reason be not obvious at first view, yet
that it is not the most appropriate solution to we owe such a deference to former times as
the instant dispute).This is another way of not to suppose that they acted wholly
saying that justice in the common law is without consideration'). This might mean
'that the unlearned age governs the more
formal rather than substantive (it is learned'19 and 'the dead hand of the past lies
constituted by neutral and impersonal heavy on English law'; 'To give lawyers
procedures rather than by the intuitive 'right- their way is to invite the dead to bury the
ness' of the result, or by faithful adherence living.' G Postema quotes Blackstone that
to an exclusionary reason rather than by an the common law is 'fraught with the
analysis and weighing of first-order accumulated wisdom of the ages' and Sir
reasons). Thus a binding precedent - Edward Coke that 'we are but of yesterday
representative of the formal character of
i3 (4) Respect for our ancestors is similar to the
law - may represent outmoded values,
separate notion that we ought to learn from
prevent the law from responding to the need practical experience: by following what has
for change, and, by encouraging escape from been done in actual cases judiciary law is a
its clutches, generate illegitimate distinctions practical art learned and formed in the world
which mar the law's intellectual integrity. of affairs rather than of a priori reasoning.23
Rather, judiciary law 'is practical until the
Advantages of the System of Precedent-
doctrine of precedent comes into force, and
Professor Goodhart
thereafter becomes entirely historical'. Once
(1) The first argument he considers is the we learn from precedent we lose the
Blackstonian one that judicial decisions are 25
possibility of learning from experience.
the most authoritative evidence we have of
general custom. Reliance on precedent, (5) Flexibility may be a worthy quality of
however, might quickly lead to a conflict any system of law, but if so it contradicts
between precedent and custom; in any event, that other and greater virtue, certainty. The
if (as is argued below) it is accepted that the law cannot be both certain and flexible in
respect of any particular issue. The truth is
159
no doubt that judiciary law is endemically dissimilarity amongst decision-makers.

flexible in that the constraints imposed by Frederick Schauer calls this the argument
stare decisis are always weak: there are too from 'strengthened decision-making' .29
many leeways of choice which judges can Needless to say, respect for precedent may
exploit. Since flexibility exists without perpetuate error rather than avoid it. Here it
precedent, it can scarcely be a virtue of stare is common to quote Shakespeare's Merchant
decisis. of Venice: "twill be recorded for a precedent,
/ And many an error, by the same example, /
(6) Convenience, as opposed to 'the Will rush into the state.'
disastrous inconvenience' of rearguing every
point.26 Stare decisis promises judicial (9) The prevention of partiality or prejudice:
efficiency and a limit to litigation. Yet many judges bound by the law cannot permit their
cases proceed to the highest courts, whose individual preferences to determine the
judgments are often long and complex as the result; we are governed by law, not
judges search for, describe, and assess the 30
judges. Yet the leeways of choice are
relevant precedents. A ruling on the 'just
result' undetermined by previous authorities usually broad enough to allow judicial
would often involve less time and cost. idiosyncrasies sufficient room for
Further, as Lord Wright suggested, there manoeuvre, and this may often be applauded
may be greater public inconvenience in the as the law's flexibility.
perpetuation of judicial error than in re-
(10) Like cases must be treated alike. This is
opening and re-examining a question
a matter of fairness and equality and
27
previously disposed of. consistency. But doctrine does not and
cannot tell us what 'likeness' is, what degree
(7) The scientific development of law: the of it is required, and whether differences are
creation and maintenance of doctrine, the relevant or not. In any event, there is no
avoidance of unconnected instances, the special virtue in equality of error. 'Because
ability to predict how a case will be decided. the Court has made an error in the case of A
Yet the higher courts can and occasionally is hardly a sound reason for requiring it to
do jettison rules long established in the make the same error in the case of B. Here
lower courts or, when they overrule their equality seems to be purchased at too high a
own decisions, firmly ensconced at the top price, but under the common law doctrine it
level; all courts are prone to distinguishing must be paid in all cases.
binding authority artificially in order to
avoid disliked results, thus impeding the
development of sound doctrine or
contributing unnecessarily to its complexity.
The predictability of a sub-optimal result
may be less desirable than the possibility of
securing a just decision in particular cases.
(8) The avoidance of error into which

individual judges, unguided by precedent,
might fall, or at least the reduction of
160
8
Tutorial Questions
(a) Complete the Following Table
Court Courts Bound by It Courts it must Persuasive Decisions

Follow
CCJ
Privy Council
Court of Appeal
High Court/Supreme
Court
Magistrates Court
(b) Summarize the Judgment in Selby v Smith by the CCJ. Identify the Ratio.
https://ccj.org/wp-content/uploads/2017/09/Selby-v-Smith-Judgment-Attorneys-at-
Law.pdf
(c) The doctrine of judicial precedent only serves to undermine the development of a
Caribbean jurisprudence.” Critically Discuss.
WORKBOOK 5
Statutory Interpretation
Learning Outcomes
161
● Define and apply the literal, golden and mischief rules (and their limitations)
● Define and apply purposive interpretation (and their limitations)
● Explain the rules of language used in SI
● Explain the presumptions used in SI
● Critically analyze the evolution of the approaches to Statutory Interpretation with use of decided
cases.

reading)
Rose-Marie Belle Antoine. Commonwealth Caribbean Law and Legal Systems (2nd edn, Routledge 2008)
Ch 13 and 14
CCJ case of Selby: https://ccj.org/wp-content/uploads/2017/09/Selby-v-Smith-Judgment-Attorneys-at-
Law.pdf
Cross, Statutory Interpretation, 3rd ed. Chps. 1-3, Ch. 4 pp 69-92.
Crabbe, Understanding Statutes pp. 81-97
Bennion, Statutory Interpretation, 3rd ed Part XIX, pp. 665-670;
Walker and Walker, English Legal System, Oxford University Press, 9th ed., pgs. 45-76
M. Zander, The Law-Making Process, 6th. ed., Cambridge University Press, pp. 127-214.
1
Introduction
While the legislative function of enacting statute is reposed in Parliament, the task of interpreting
it is left to the courts. It is often said that when the Courts are interpreting statute they are giving
effect to the intention of Parliament. Interpretation to give effect to the intention of Parliament is
162
an objective as opposed to a subjective exercise. Therefore, the intention of Parliament is sought

through an interpretation of the words it used rather than a review/consideration of what it meant.
Various tools are relied on by the Courts to carry out this task. These tools are contained in rules
of interpretation, presumptions, internal and external aids to interpretation and rules of language.
The Courts in the Commonwealth Caribbean generally follow the same rules, tools and
presumptions of interpretation used in the UK. The major exception relates to the interpretation
of the Constitution, which is generally interpreted purposively. The difference in approach being
primarily occasioned by the Court’s recognition that our written Constitutions are unique pieces
of legislation which are supreme.
Major approaches
The major rules or approaches to statutory interpretation are as follows
● The literal rule
● The golden rule
● The mischief rule
● The purposive approach
● The unified contextual approach.
2
Literal Rule
This rule is also known as the “plain meaning rule”. As the characterization suggests,
interpretation under this approach is confined to a natural and ordinary construction of the words
contained therein. Therefore, there is no reference to other materials such as policy objectives,
Hansard or, law commission reports
The classic formulation of the literal rule is found in the Sussex Peerage Case (1844) 11 Ch &
Fin 85, 143; 8 ER 1034. In that case it was observed that, a natural and ordinary construction of
the words in the statute was mandated where the words of the statute were clear and
unambiguous. In such circumstances, the literal rule requires a construction which gives clear
effect to the words used, regardless of the consequences
Tindal CJ stated as follows:
“The only rule for the construction of Acts of Parliament is that they should be construed
according to the intent of the Parliament which passed the Act. If the words of the statute
163
are in themselves precise and unambiguous, then no more can be necessary than to
expound those words in that natural and ordinary sense. The words themselves alone do,
in such case, best declare the intention of the lawgiver…”
The words must however be construed in the context of the statute.
In Pinner v. Everett [1969] 3 All E.R. 257 at 258, Lord Reid stated this principle in the following
terms
"In determining the meaning of any word or phrase in a statute the first question is what
is the natural or ordinary meaning of that word or phrase in its context in the statute. It is
only when the meaning leads to some result which cannot reasonably be supposed to
have been the intention of the legislature that it is proper to look for some other
permissible meaning of the word or phrase."
However it must be emphasized that construing words in the context of the statue does not mean
that the limitations should unnecessarily be placed on the words used where the statute does not
require the same:
Hope v Smith (1963) 6 WIR 464-Consider the statements of Wooding CJ when the Court was
construing the following provision section 104 of the Summary Courts Act, Chap. 4:20 (Trinidad
and Tobago) which provides as follows:
“Any person who is found committing any summary offence may be taken into custody,
without warrant, by any constable, or may be apprehended by the owner of the property
on or with respect to which any such offence is committed, ...and shall in the latter case
be delivered as soon as possible into the custody of any constable to be dealt with
according to law.”
At 467 B-D Wooding CJ stated as follows when construing the words “any summary offence”
“This brings us, then, to the final submission that some limitation must be put upon the
extremely wide power conferred by s. 104. It would be intolerable, it is said, if, say, a
constable who finds a (end of page 17) motorist parking his car on the wrong side of the
road could, without more, take him into custody and march him off to a police station for
his case to be inquired into by a gazetted or subordinate police officer. But where the
language of an enactment is clear and unambiguous, it is not the function of the Courts to
relieve against any harshness which it may or may not be thought to occasion. That is a
matter for Parliament to consider. And if Parliament thinks that any hardship which any
164
legislation may cause can be avoided by the judicious exercise of discretion by those to
whom is committed the duty and ministering it, the Courts must decline to assume a
corrective power which they do not at all possess.”
As the observations of Wooding CJ reveal one of the weaknesses of the literal interpretation is
that it may lead to harsh results. This is upon a review of the following cases:
Baptiste v Alleyne (1970) 16 WIR 437- the conviction of an accused who choked an individual by
placing his hand through a window while standing outside was overturned on appeal. The Court
of Appeal held that he was not “found in the building” was required by a literal interpretation of s
29 (d) of the Larceny Ordinance.
Evon Smith v R [2005] UKPC 43 - consider the distinction between capital murder and murder
made by the Privy Council upon an interpretation of s 2 of the Offences Against the Person
(Amendment) Act 1992. See also the dissenting judgment of Lord Hoffman and Lord Hutton.
Regional restatement of rule
One of the most widely cited regional restatements of the literal rule is found in the dicta of
Savarin v. John Williams (1995) 51 W.I.R. 75 at 78-79 Sir Vincent Floissac, C.J. expressed the
principles thus:
"I start with the basic principle that the interpretation of every word or phrase of a statutory
provision is derived from the legislative intention in regard to the meaning which that word or
phrase should bear. That legislative intention is an inference drawn from the primary meaning of
the word or phrase with such modifications to that meaning as may be necessary to make it
concordant with the statutory context. In this regard, the statutory context comprises every other
word or phrase used in the statute, all implications therefrom and all relevant surrounding
circumstances which may properly be regarded as indications of the legislative intention."
Defects of the Literal Rule
The literal rule however has been criticized as flawed for several reasons. However one of the
main reasons relates to the fact that words have different meanings and as such judges may differ
as to which meaning to ascribe to the word. The issue of alternate meanings becomes more acute
when the word(s) in issue is general: See the case of Betts and Others v COP BS 1991 SC 36
(Carilaw) (here the Court had to construe the word “found”)
Early Approaches
It is only where the words of the Statute are not clear and ambiguous that it is necessary to enlist
aids for interpretation (Per Byron, C.J. in Universal Caribbean Establishment v. James Harrison).
The importance of context was emphasized by Lord Upjohn in the case of DPP v Schildkamp
165
who noted “words which if plainly and literally interpreted have a wide meaning have been held
to be restricted by their context to a narrower meaning.”
This approach was applied in the case of R v Ramsonahai and Duke 3 WIR 535 where it was said
penal statutes must be strictly construed.
The two appellants were charged with conspiracy “to prosecute” someone.
GOMES CJ held
“No doubt all penal statutes are to be construed strictly, that is to say, the court must see
that the thing charged as an offence is within the plain meaning of the words used, and
must not strain the words on any notion that there has been a slip, that there has been a
casus omissus, that the thing is so clearly within the mischief that it must have been
intended to be included, and would have been included if thought of”
…the words “to prosecute” in s 330 are to be construed in their strict sense and are not to be
extended to include a conspiracy between two or more persons to cause another person to be
prosecuted.
The Judgment in Nabie v Mayers v Law Association of Trinidad and Tobago and Attorney
General TT 2012 CA 8
http://webopac.ttlawcourts.org/LibraryJud/Judgments/coa/2012/narine/
CvA_12_00892DD08jun2012.pdf
THE PRINCIPLES OF STATUTORY instrument containing it, is to be regarded as
INTERPRETATION the pre-eminent indication of the legislator’s
intention.”
[8] The presumption in favour of a literal
interpretation of the words of a statute are set SECTION 285
out in Bennion on Statutory Interpretation
PRESUMPTION THAT LITERAL
(5th ed) at page 864:
MEANING TO BE FOLLOWED.
SECTION 284
“Prima facie, the meaning of an enactment
PRESUMPTION THAT TEXT IS THE which was intended by the legislator (in other
PRIMARY INDICATION OF LEGAL words its legal meaning) is taken to be that
MEANING. which corresponds to the literal meaning.”
“In construing an enactment, the text of the 9. In seeking to ascertain the intention of
enactment, in its setting within the Act or other Parliament as expressed in the language it
166
employed, it must be borne in mind that the as used by Parliament with that meaning. As
intention of Parliament is an objective concept. Lord Reid said in Black-Clawson International
The task of the Court in finding the intention of Ltd. v. Papierwerke Waldhof-Aschaffenburg
Parliament from the language of an enactment AG [1975] AC 591,613: “We often say that we
was articulated by Lord Nicholls of Birkenhead are looking for the intention of Parliament, but
in the House of Lords decision in R. v. that is not quite accurate. WE ARE SEEKING
Secretary of State for the Environment, THE MEANING OF THE WORDS WHICH
Transport and the Regions, Ex-parte Spath PARLIAMENT USED.”
Holme Ltd. (2001) 2 AC 349 at 396 F – 397-B.
“Statutory interpretation is an exercise which
In identifying the meaning of the words used,
requires the Court to identify the meaning
the courts employ accepted principles of
borne by the words in question in the particular
interpretation as useful guides. For instance,
context. The task of the Court is often said to
AN APPROPRIATE STARTING POINT IS
be to ascertain the intention of Parliament
THAT LANGUAGE IS TO BE TAKEN TO
expressed in the language under consideration.
BEAR ITS ORDINARY MEANING IN THE
This is correct and may be helpful, so long as it
GENERAL CONTEXT OF THE STATUTE.
is remembered that THE “INTENTION OF
PARLIAMENT” IS AN OBJECTIVE Justification for the Literal Rule
CONCEPT, NOT SUBJECTIVE. THE
PHRASE IS A SHORTHAND REFERENCE 10. It is desirable that parliament should
TO THE INTENTION WHICH THE COURT express its intention in clear and unambiguous
REASONABLY IMPUTES TO language so that ordinary citizens and their
PARLIAMENT IN RESPECT OF THE advisors are able to understand their meaning.
LANGUAGE USED. It is not the subjective This aspect of the rule of law, and the need for
intention of the minister or other persons who legal certainty was expressed by Lord Diplock
promoted the legislation. Nor is it the in Fothergill v. Monarch Airlines Ltd. (1981)
subjective intention of the draftsman, or of AC 251 at 279-280, and cited by Lord Nicholls
individual members or even of a majority of in R. v. Secretary of State for the Environment,
individual members of either House. These Transport and the Regions, Ex-parte Spath
individuals will often have widely varying Holme Ltd. (supra.) at 397 H to 398 B:
intentions. Their understanding of the “The source to which Parliament must have
legislation and the words used may be intended the citizen to refer is the language of
impressively complete or woefully inadequate. the Act itself. These are the words which
Thus, when courts say that such-and –such a Parliament has itself approved as accurately
meaning “cannot be what Parliament expressing its intentions. If the meaning of
intended”, they are saying only that the words those words is clear and unambiguous and does
under consideration cannot reasonably be taken not lead to a result that is manifestly absurd or
167
unreasonable, it would be a confidence trick by Building Society [1998] 1 All ER 98 at 114-

Parliament and destructive of all legal certainty 115, [1998] WLR 869 at 912-913. It is this
if the private citizen could not rely upon that objective meaning which is conventionally
meaning but was required to search through all called the intention of the parties or the
that had happened before and in the course of intention of whatever person or body was or is
the legislative process in order to see whether deemed to have been the author of the
there was anything to be found from which it instrument.”
could be inferred that Parliament’s real
12. Where a literal interpretation of the
intention had not been accurately expressed by
enactment produces a result which does not
the actual words that Parliament had adopted to
accord with the purpose that Parliament
communicate it to those affected by the
intended to achieve, the Court may adopt a
legislation.”
purposive approach which seeks to identify and
11. The “objective” meaning of an instrument give effect to the purpose of the legislation. In
is the meaning which the instrument would doing so the Court considers the particular
convey to a reasonable person having all the provisions within the context of the statute as a
background knowledge which would whole, and construes the statute in the
reasonably be available to the audience to historical context in which it was enacted. This
whom the instrument is addressed. This view approach was articulated by Lord Bingham in
was expressed by Lord Hoffman in the Privy the case R. (Quintavalle) v. Secretary of State
Council decision in A.G. of Belize and Ors. v. for Health (2003) 2 WLR 692 at 697 D-G:
Belize Telecom Ltd. and Anor. (2009) All E.R.
“The basic task of the Court is to ascertain and
1127 at 1132 F-H.
give effect to the true meaning of what
“The Court has no power to improve upon the Parliament has said in the enactment to be
instrument which it is called upon to construe, construed. But that is not to say that attention
whether it be a contract, a statute or articles of should be confined and a literal interpretation
association. It cannot introduce terms to make given to the particular provisions which give
it fairer or more reasonable. It is concerned rise to difficulty. Such an approach not only
only to discover what the instrument means. encourages immense prolixity in drafting, since
However, that meaning is not necessarily or the draftsman will feel obliged to provide
always what the authors or parties to the expressly for every contingency which may
document would have intended. It is the possibly arise. It may also (under the banner of
meaning which the instrument would convey to loyalty to the will of Parliament) lead to the
a reasonable person having all the background frustration of that will, because undue
knowledge which would reasonably be concentration on the minutiae of the enactment
available to the audience to whom the may lead the Court to neglect the purpose
instrument is addressed: see Investors’ which Parliament intended to achieve when it
Compensation Scheme Ltd. v. West Bromwich enacted the statute. Every statute other than a
168
pure consolidating statute is, after all, enacted 13. In construing particular provisions of a
to make some change, or address some statute, the Court may employ internal aids,
problem, or remove some blemish, or effect such as other provisions in the same statute.
some improvement in the national life. The The Court may also employ external aids, such
Court’s task, within the permissible bounds of as the historical background, reports of
interpretation, is to give effect to Parliament’s advisory committees, or records of
purpose. SO THE CONTROVERSIAL parliamentary debates.
PROVISIONS WOULD BE READ IN THE
14. In Pepper v. Hart (1993) AC 593, it was
CONTEXT OF THE STATUTE AS A
held by the House of Lords that where
WHOLE, AND THE STATUTE AS A
legislation was ambiguous or obscure or led to
WHOLE SHOULD BE READ IN THE
absurdity, Parliamentary material consisting of
HISTORICAL CONTEXT OF THE
one or more statements of a Minister or other
SITUATION WHICH LED TO ITS
promoter of a Bill, could be used as an aid in
ENACTMENT.” (emphasis mine)
construction, provided that the statements
relied upon are clear.
Similarly-
Byron CJ in Universal Caribbean

Establishment v. James Harrison
169
ANUHCVAP1993/0021 with regard to the interpretation of every word or phrase of a

construing statutes: statutory provision is derived from the
legislative intention in regard to the meaning
“The first principle to affirm is to recognise
which that word or phrase should bear. That
the separation of power between the
legislative intention is an inference drawn
Legislature and the Judiciary. It is the
from the primary meaning of the word or
province of Parliament to make the law and
phrase with such modifications to that
for the Court to interpret, without basing its
meaning as may be necessary to make it
construction of the Statute on a perception of
concordant with the statutory context. In this
its wisdom or propriety or a view of what
regard, the statutory context comprises every
Parliament ought to have done.”
other word or phrase used in the statute, all
THE DOMINANT PURPOSE IN implications therefrom and all relevant
CONSTRUING A STATUTE IS TO surrounding circumstances which may
ASCERTAIN THE INTENTION OF THE properly be regarded as indications of the
LEGISLATURE AS EXPRESSED IN THE legislative intention. “
STATUTE, CONSIDERING IT AS A
[26] In Abel v. Lee Willes J stated:
WHOLE AND IN ITS CONTEXT. IT IS
ONLY WHERE THE WORDS OF THE “No doubt the general rule is that the
STATUTE ARE NOT CLEAR AND language of an Act is to be read according to
UNAMBIGUOUS [sic] THAT IT IS its ordinary grammatical construction unless
NECESSARY TO ENLIST AIDS FOR so reading it would entail some absurdity,
INTERPRETATION...." (emphasis mine) repugnancy, or injustice…. But I utterly
repudiate the notion that it is competent to a
[25] Sir Vincent Floissac C.J in Charles
judge to modify the language of an Act of
Savarin v. John Williams (1995) 51 W.I.R. 75
Parliament in order to bring it in accordance
at 78-79. C.J. stated:
with his views as to what is right or
“In order to resolve the fundamental issue of reasonable.”
this appeal, I start with the basic principle that
What are the advantages and disadvantages of the literal rule?
170
3
Golden Rule (aka “common sense rule”)
171
In the Sussex Peerage Case the Court recognized that the application of the literal rule could lead
to absurdity. As such under this rule the Court will permit such modification as is necessary to
avoid absurdity or inconsistency. This may be done by way of implying words in the statute
where “absolutely necessary”.
In Grey v Pearson (1857) 6 HL Cas 61, 106; 10 ER 1216, the rule was restated by Parke B (who
later became Lord Wensleydale ) He stated as follows:
“In construing wills and indeed statutes and all written instruments, the grammatical and
ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some
repugnancy or inconsistency with the rest of the instrument, in which case the grammatical and
ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but
no further.”
Lowther v Bentinck (1874) LR 19 Eq 166 at 169, Jessel MR in turn observed that: “Now in
construing instruments, I have always followed the rule laid down by the House of Lords in Grey
v Pearson which is to construe the instrument according to the literal import, unless there is
something in the subject or context which shows that that cannot be the meaning of the words”.
That rule allowed a Court to depart from the ordinary grammatical sense of the words of a statute
where it produced absurdity or inconsistency: The River Wear Commissioners v Adamson (1877)
2 App Cas 743 at 764 per Lord Blackburn. In Eastman Photographic Material Co Ltd v
Comptroller-General of Patents, Designs and Trademarks [1898] AC 571 at 575, Lord Halsbury
LC observed that: “We have therefore to consider not merely the words of this Act of Parliament,
but the intent of the Legislature, to be collected from the cause and necessity of the Act being
made, from a comparison of its several parts, and from foreign (meaning extraneous)
circumstances so far as they can justly be considered to throw light upon the subject.”
A well-known regional example of the application of the Golden Rule in order to avoid
absurdity is found in Davis v R (1962) 4 WIR 375. That case dealt with interpretation of parking
regulation which prohibited “parking a vehicle elsewhere than in a place provided for that
purpose and in the manner required by an authorised officer.”
MacGregor CJ considered the issue as whether the “ court permitted, under the circumstances, to
place a meaning upon the regulation which would not give rise to an absurd interpretation, but
would interpret it in such a way as to carry out the apparent intention of the legislature?
Prior to finding that in order to give effect to the intention of Parliament the words “otherwise
than” rather than the words “elsewhere than” should be used to qualify the words “in the manner
required”. The Court held that the regulation as it stood was obscure and as the interpretation
which it was sought to place upon it would lead to an absurdity, in order to avoid this and to
make the regulation read intelligibly and carry out the apparent intention of the legislature it was
172
necessary to insert the words “otherwise than” between the words “and” and “in the manner”.
The appellant was charged with a breach of the first portion of the regulation—”parking
elsewhere than in a place provided”—and was clearly proved to have committed that offence.
Macgregor CJ quoted Maxwell on the Interpretation of Statutes, 11th Edn, at pp 221, 228 and
243, respectively:
'Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a
manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or
absurdity, hardship or injustice, presumably not intended, a construction may be put upon it
which modifies the meaning of the words, and even the structure of the sentence. This may be
done by departing from the rules of grammar, by giving an unusual meaning to particular words,
by altering their collocation, or by rejecting them altogether, under the influence, no doubt, of an
irresistible conviction that the legislature could not possibly have intended what its words signify,
and that the modifications thus made are mere corrections of careless language and really give the
true meaning. Where the main object and intention of a statute are clear, it must not be reduced to
a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or
the absolute intractability of the language used. Nevertheless, the courts are very reluctant to
substitute words in a statute, or to add words to it, and it has been said that they will only do so
where there is a repugnancy to good sense.'
'Notwithstanding the general rule that full effect must be given to every word, yet if no sensible
meaning can be given to a word or phrase, or if it would defeat the real object of the enactment, it
may, or rather it should, be eliminated. The words of a statute must be construed so as to give a
sensible meaning to them if possible. They ought to be construed ut res magis valeat quam
pereat.'
'They [the authorities] would seem rather to establish that the judicial interpreter may deal with
careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or
corrupt text, when satisfied, on solid grounds, from the context or history of the enactment, or
from the injustice, inconvenience, or absurdity of the consequences to which it would lead, that
the language thus treated does not really express the intention and that this amendment probably
does.’
In addition to implying words into the provisions of the section in issue , the application of the
Golden Rule may be determinative when deciding which interpretation to adopt. See generally R
v City of London Ct Judge(1892) 1 QB 273 at 290 Esher MR where stated:
“Once the words are clear follow them…but if unclear choose the more reasonable of two
interpretations. Additionally, this rule can be relied on by the Court to ignore grammatical errors
in a statute
173
See generally:
Enmore Estates Ltd v Darsan (1970) 15 WIR 192
Lewis v St. Hilaire et al (1996) 1 Carib LB 119 ,PC
What are the advantages and disadvantages of the golden rule?
4
Mischief Rule
This is one of the oldest rules of interpretation. The classic statement of this rule is found in
Heydon’s Case (1584) 3 Co. Rep. 7a; 76 ER 637 where it is stated that for the sure and true
interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the
common law), four things are to be discerned and considered:
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy the Parliament hath resolved and appointed to cure the disease of the
[Commonwealth]? and
4. The true reason of the remedy.
174
Unlike the Literal and Golden Rules, when relying on the mischief rule the Court looks outside
the Act during the interpretative process, as such other materials including reports are considered
as well as the purpose of the Act.
An example of the use of the mischief rule is found in the case of Corkery v Carpenter (1951).
What are the advantages and disadvantages of the mischief rule?
5
Contextual/Purposive Approach
Pepper v. Hart [1993] 1 All E.R. 42; [1993] A.C. 593; [1992] 3 W.L.R. 1032.
Read the CCJ case of Selby: https://ccj.org/wp-content/uploads/2017/09/Selby-v-Smith-
Judgment-Attorneys-at-Law.pdf
The purposive approach is a modern approach. Court looks not only to determine if there was a
gap was in the law, but decides as to what the court thinks Parliament was trying to achieve.
Lord Denning in the Court of Appeal in Magor and St. Mellons Rural District Council v Newport
Corporation (1950) stated “we sit here to find out the intention of Parliament and of ministers
and carry it out, and we do this better by filling in the gaps and making sense of the enactment by
opening it up to destructive analysis.”
175
This attitude was criticised on appeal by the House of Lords. Lord Simmons criticized the
approach on appeal in the House of Lords stating that called the approach was “a naked
usurpation of the legislative function under the thin disguise of interpretation.” Lord Simmons
also stated that say that “if a gap is disclosed, the remedy lies in an amending Act.”
What are the advantages and disadvantages of the purposive approach?
Meadows, BLAINE AND ROSSEAU v. ATTORNEY GENERAL, JAMAICA PUBLIC

SERVUCE COMPANY LIMITED AND OFFICE OF UTILITIES REGULATION JM 2012 SC
63 - Sykes J [There was an appeal against this case but there was no difficulty in accepting the
propositions of law contained herein]
PRINCIPLES OF STATUTORY as ejusdem generis, expressio unius est
INTERPRETATION exclusio alterius and generalia specialibus non
derogant. All these rules and sub-rules were
[19] The principles of statutory interpretation
designed; it was said, to arrive at the clear and
that are relevant will now be stated. In times
unambiguous meaning of the words of the
past, judges spoke of the various ‘rules or
statute.
cannons of statutory construction.’ In plain
English this simply means the principles of [20] The clear and unambiguous meaning of
statutory interpretation. Until recently, every these words was said to express the intention of
generation of law students would learn of the Parliament. However, as time has gone on it
golden rule, the literal rule and the mischief has come to be recognised that the process of
rule. These rules would be accompanied by interpretation of statutes is more nuanced than
their Latin-speaking cousins with names such previously acknowledged. Language we now
176
know only becomes better understood if the The starting point is that language in all legal
context if known. texts conveys meaning according to the
circumstances in which it was used. It follows
that the context must always be identified and
[21] The expression ‘clear and unambiguous considered before the process of construction
meaning’ assumed that the words could have or during it. IT IS THEREFORE WRONG TO
only one meaning. It is now better appreciated SAY THAT THE COURT MAY ONLY
that the meaning of a statute is not necessarily RESORT TO EVIDENCE OF THE
the meaning of the words used in the statute. CONTEXTUAL SCENE WHEN AN
The meaning of words, borrowing Lord AMBIGUITY HAS ARISEN....in Investors
Hoffman’s phraseology, is the business of Compensation Scheme Ltd v. West Bromwich
dictionaries but the meaning of a provision is Building Society [1998] 1 WLR 896 , 912-913
determined by examining the words themselves LORD HOFFMANN MADE IT CRYSTAL
in the immediate context; then in the context of CLEAR THAT AN AMBIGUITY NEED NOT
the whole statute; then the statute in the BE ESTABLISHED BEFORE THE
particular social and economic circumstance in SURROUNDING CIRCUMSTANCES MAY
which it was passed, and perhaps more BE TAKEN INTO ACCOUNT. THE SAME
important, the context in which it is now to be APPLIES TO STATUTORY
applied (Investor Compensation Scheme v. CONSTRUCTION. (emphasis added)
West Bromwich Building Society [1998] 1 All
ER 98, 115). As Lord Nicholls humourously
noted, the meaning of the expression ‘eats [23] Implicit in this passage is the idea that an
shoots and leaves’ depends on whether one is interpretation need not result in a manifest
speaking about a panda or a Wild West outlaw absurdity before it is rejected. Indeed, in this
(Donald Nicholls, My Kingdom For A Horse: court’s experience, there are not many
The Meaning of Words, LQR, (2005), 121 interpretations of statutes advanced by counsel
(Oct), 577 – 591, 579). that have been absurd to say nothing of
manifestly absurd. The current case is an
example of that. Many times the different
[22] It used to be the case that before the court interpretations are prima facie reasonable and
could look at the context to interpret a statute, the court has to look carefully at what has been
there had to be some ambiguity. This has now advanced and using the various principles
gone by the way. In R (on the application of developed over time settle on the most
West Minster City Council) v. National reasonable interpretation.
Asylum Support Service [2002] 1 WLR 2956,
Lord Steyn said at page 2958:
[24] This position is not new as Lord
Blackburn made the same point over one
177
hundred years ago. What is new is that it is the whole statute. For Lord Reid, context was
now fully embraced (River Wear not restricted to the four corners of the statute
Commissioners v. Adamson (1877) 2 App Cas (the four-corners doctrine). Context went
743). The ‘rediscovery’ of Lord Blackburn’s beyond the words of the text and included
thinking sparked a renaissance in the matters that would be known to the legislators.
interpretation of documents including statutes.
Lord Blackburn explained the position as
follows at page 763: [26] These three cases capture the basic
position of modern statutory interpretation.
I shall ... state, as precisely as I can, what I

understand from the decided cases to be the
principles on which the courts of law act in
construing instruments in writing; and a statute
is an instrument in writing. In all cases the
object is to see what is the intention expressed
by the words used. But, from the imperfection
of language, it is impossible to know what that
intention is without inquiring further, and
seeing what the circumstances were with
reference to which the words were used, and
what was the object, appearing from those
circumstances, which the person using them
had in view; for the meaning of words varies
according to the circumstances with respect to
which they were used.
[25] In between those two cases was Lord

Reid’s advice in Black-Clawson International
Ltd v. Papierwerk Waldhorf [1975] AC 591,
613 – 615. His Lordship indicated that it is not
accurate to say that we are seeking the
intention of Parliament. What is being sought is
the meaning of the words Parliament used. His
Lordship advocated that one begins with the
words of the statute read as a whole. That is,
putting the section in question in the context of
178
6
The always speaking rule
Fitzpartick v Sterling Housing Associates [1999] 4 All E.R. 701; [2001] 1 A.C. 27; [1999] 3
W.L.R. 1113.
R(Quintavalle) v Secretary of State for Health [2002] 2 AC 687, 697-698; [2003] 2 A.C. 687;
[2004] 1 W.L.R. 441.
Re Attorney General’s reference (No. 5 of 1980) [1980] 3 All E.R. 816; [1981] 1 W.L.R. 88.
B.B Inc V Hamilton GD 2015 HC 18 - whether digital signatures are capable of satisfying the
Statute of Fraud
[46] The legislature, by section 4 of the Act, has set out specific requirements for bringing claims
upon contracts for sale of lands or any interest therein. The agreement or a memorandum or note
thereof must be in writing and “signed” by the party to be charged. As found earlier, the ordinary
and natural meaning of “signed” does not include electronic signatures. I am not of the view that
Golden Ocean assists the claimant’s case and, more significantly, that any findings in that case
would cause the word “signed” as used in section 4 of the Act to be given a meaning other than
its ordinary and natural meaning.
[60] Therefore, in addition to my finding that electronic signatures do not fall within the natural
and ordinary meaning of “signed” as used in the Act I am also bound by the decision in Nelson
Lewis which did not treat the word “signed” as used in the Act as including electronic signatures.
Provided for Statutorily in some Jurisdictions:

RETURNING OFFICERS ET AL v. MUNRO ET AL; CUFFIE ET AL v. MAHABIR ET AL
TT 2016 CA 35
The imperative of Section 10 (1) of the Interpretation Act, which provides as follows:
"Every written law shall be construed as always speaking and if anything is expressed in the
present tense it shall be applied to the circumstances as they occur so that effect may be given to
each written law according to its true spirit, intent and meaning."
The application of the principle of law 'as always speaking', goes to mandating interpretation to
achieve ongoing relevance to changing circumstances, including constitutional imperatives.
TOMLINSON v. TELEVISION JAMAICA LTD., CVM TELEVISION LTD, PUBLIC

BROADCASTING CORPORATION OF JAMAICA JM 2014 SC 28
1
Perhaps the framers of the Charter of Rights did not have horizontal application in mind.
However, that does not necessarily mean that the present state of the Charter of Rights cannot
apply to the new position whereby one private citizen can enforce the bill of rights against
another private citizen. The reason for this position is the principle called the always-speaking
principle. What this means is that statute or rules when promulgated are always speaking once
they have not been repealed and it is a matter of interpretation whether the words used apply to
the new situation. For example, in R. v Ireland [1998] AC 147, the issue was whether a particular
psychiatric illness fell within the definition of 'bodily harm' in the 1861 Offences Against the
Person Act. The House of Lords held that it did, despite the fact that the illness in view was not
known in 1861. Similarly in Regina v. Secretary of State for Health [2003] 2 A.C. 687 the
question was whether a 1990 statute could be extended to protect embryos developed by a
method which did not exist at the time the statute was passed. The House of Lords held that it
did. The point then is that the claimant's submissions have the support, in principle, of high
authority and ought not to be dismissed out of hand.
7
Internal and External Aids to Interpretation
Internal Aids
Long Title
R v Galvin [1987] 2 All ER 851; [1987] Q.B. 862; [1987] 3 W.L.R. 93.
Fisher v Raven (1963) 2 All E.R. 389, 394 H to 395 B; [1963] 2 W.L.R. 1137; [1964] A.C. 210.
Fielding v Morley Corporation [1899] 1 Ch. 1, at p.3.
Ealing London Borough Council v Race Relations Board [1972] 1 All E.R. 105, 111g - 112g,
115, 119f; [1972] A.C. 342; [1972] 2 W.L.R. 71.
Preamble
Powell v Kempton Park Race Course Co. [1899] A.C. 143, at p. 157.
Attorney General v Prince Ernest Augustus of Hanover [1957] A.C. 436; [1957] 2 W.L.R. 1.
Short Title
Vacher & Sons Ltd. v London Society of Compositors [1913] A.C. 107, at p. 128-129.
Headings
2
Director of Public Prosecutions v Schildkamp [1969] 3 All E.R. 1640, 1641, 1643, 1650, 1655G
– 1656; [1971] AC 1, [1970] 2 WLR 279.
Side Notes
Director of Public Prosecutions v Schildkamp, supra.
Chandler v Director of Public Prosecutions [1964] A.C. 763 at p. 789; [1962] 3 W.L.R. 694.
Stephens v Cuckfield [1960] 2 QB 373; [1960] 3 W.L.R. 248.
External Aids
Dictionaries
Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163.
R. v Peters [1886] 16 Q.B.D. 636, 641.
Re Rippon (Highfield) Housing Corporation Order [1939] 3 All E.R. 548, 553g-554e, 557c-g.
Manickchand v E. Ramjit (1969) 15 W.1.R. 30, at p. 34D.
Parliamentary Debates
Davis v Johnson [1978] 1 A.E.R. 1132, 1140h - 1141g, 1147 b-f, 1157f – 1158; [1978] 2 W.L.R.
553; [1978] A.C. 264.
Hadmor Productions v Hamilton [1982] 1 All E.R.1042, 1055g - 1056c; [1983] 1 A.C. 191;
[1982] 2 W.L.R. 322.
Pickstone v Freemans plc [1988] 2 All E.R. 803, 807 b-d, 814e, 817e; [1989] A.C. 66; [1988] 3
W.L.R. 265.
Pepper v Hart supra
Influence of International Conventions

A. G. of Canada v. A. G. of Ontario [1937] A.C. 326, 347-348.
Salomon v. Commissioners of Customs and Excise [1966] 3 All E.R. 871, 875-876; [1967] 2
Q.B. 116; [1966] 3 W.L.R. 1223.
Brind v. Secretary of State for Home Department [1990] 1 All E.R. 469; [1991] 1 A.C. 696;
[1991] 2 W.L.R. 588.
3
Boyce v The Queen [2004] 3 W.L.R. 786; [2005] 1 A.C. 400.

Where a statute has been passed to give effect to an international convention, this can be referred
to in order to interpret it (e.g. Salomon v Commissioners of Customs and Excise (1966).
In Fothergill v Monarch Airlines Ltd (1980), it was held that even preparatory material and
explanatory notes relating to the convention could be consulted.
STATUTORY
Influence of Constitutions
Worme v Commissioner of Police of Grenada [2004] 2 A.C. 430; [2004] 2 W.L.R. 430.
Human Rights Provisions

Minister of Home Affairs v Fisher [1980] A.C. 319; [1979] 2 W.L.R. 889.
8
Tutorial Questions
(a)Explain the rules of Statutory Interpretation with reference to decided cases.

The case of Worme v Commissioner of Police Grenada [2004] refers to the Constitution and its
provisions for the people of Grenada to enjoy their fundamental freedoms and rights, one of
which is the right to express oneself. One would interpret these guidelines as being indicative of
free expression being awarded to all no matter the circumstance. However this interpretation
only goes so far since one is able to enjoy the rights of these fundamental freedoms as long as
they do not interfere with public interest. The case referred to above is one that dealt with the
issue of libel, this is a matter of defamation. A conflict may seem to arise here, since establishing
libel as a crime could be said to defeat the purpose of the interpretation of freedom of expression
since the crime of libel would result from one utilizing this freedom.
(b) Critically examine with reference to decided cases the evolution from the literal to purposive
approach and the limits to both approaches.

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Law And Legal Systems LAW 1010

INSTRUCTION: Please make your entries in a coloured font

Task 3: Attend the lecture

Task 4: During the lecture

Task 5: Attend the tutorial

Task 6: After the lecture and tutorial

Task 1: Before you attend the lecture: Read the following

Many sociologists, economists and historians attribute "the plantation paradigm" as an

A Framework for Legal Pluralism;

5. Functional Normative systems-organised and arranged in connection with the pursuit of

Main characteristics of law based on the above definitions:

● the behaviour is encouraged through coercive force or the threat thereof

In comparing law to…

Law is different because it is enforceable in courts.

Which definition of the law do you prefer? Justify your answer.

and norms in an attempt to achieve successful cohabitation.

Positivist law is:

• John Austin notes:

but does not obey anyone else) to citizens in a legal system.

law purely based on what the government decides.

There are four (4) main ideas to the legal realism

1. Law protects powerful economist interests first.

2. The outcome of a legal dispute is determined by a judge's morality, mood or the

Theory Advantages Disadvantages

to make calculated decisions to bound by laws that they create

Realism ● The acknowledgement of ● Judges making decisions subjectively can

Feminist Legal Theory

According to the ‘Stanford Encyclopedia of Philosophy’ a feminist philosophy of law

MARXIST LAW THEORY

4. The functions of law

Function (Using Funk’s Classification. The Example

Public Order Criminal code Act- Ensuring that individuals

Social Control One of the functions of law is to control members of

Social Cohesion Solidifies connectedness among groups in

Promote Change in Society By amending and repealing laws, making new

Caleb Orozco v AG- Brought claim against

Misuse of Drugs Act Amendment 2017 (Belize)

Define Rights and Duties Indicating fundamental human rights such as

duties as a civilian- e.g., Public Services

Balance conflicting interests Mediating in affairs such as land disputes,

Maya Leaders Alliance v GOB- Mayas who

Belize as communal lands.

Dispense Justice To administer justice

Allocate Power This deals with the allocation of governmental

To Legitimize To legitimize governmental institutions and

deterrent through punishment in order to get citizens to comply.

Do the functions of law match the functions of law of your country?

5. Law and Morality

Read the extract from Raymond Wacks,7 below:

The three theories of law-(1)the Natural Law (2(Positivist)(3)Realism.

Task 1: Before you attend the lecture: Read the following

Malcolm, Howard N. ‘Towards the emergence of an Anglo-West Indian Jurisprudence.’ West Indian Law

Findings presented in the case:

that the individual is treated as a legal subject in African law.

The impossibility of the converse also stands.

These two ideas are different but are often conflated.

These are the two hallmarks of democracy in the world today.

It is equally untrue in the light of the history of the world.

endeavor, for that matter.