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Commonwealth Caribbean Law and Legal Systems 2 e (Commonwealth Caribbean Law) PDF

487 Pages·2006·2.4 MB·English
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COMMONWEALTH CARIBBEAN LAW AND LEGAL SYSTEMS Fully updated and revised to fit in with the new laws and structure in the Common- wealth Caribbean law and legal systems, this new edition examines the institutions, structures and processes of the law in the Commonwealth Caribbean. The author explores: • the court system and the new Caribbean Court of Justice which replaces appeals to the Privy Council • the offshore financial legal sector • Caribbean customary law and the rights of indigenous peoples • the Constitutions of Commonwealth Caribbean jurisdictions and Human Rights • the impact of the historical continuum to the region’s jurisprudence including the question of reparations • the complexities of judicial precedent for Caribbean peoples • international law as a source of law • alternative dispute mechanisms and the Ombudsman Effortlessy combining discussions of traditional subjects with those on more innova- tive subject areas, this book is an exciting exposition of Caribbean law and legal systems for those studying comparative law. Rose-Marie Belle Antoine is the Professor of Labour Law and Offshore Financial Law at the University of the West-Indies. COMMONWEALTH CARIBBEAN LAW AND LEGAL SYSTEMS Second Edition Rose-Marie Belle Antoine LLB (UWI), LLM (Cantab), DPhil (Oxon) Professor of Labour Law and Offshore Financial Law, Faculty of Law, University of the West-Indies Attorney-at-Law First published 1998 by Routledge-Cavendish Publishing Ltd Second Edition published 2008 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 1998, 2008 Rose-Marie Belle Antoine All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Antoine, Rose-Marie Belle. Commonwealth Caribbean law and legal systems / Rose-Marie Belle Antoine. – 2nd ed. p. cm. 1. Law–Caribbean Area. 2. Law–West Indies, British. 3. Law–Commonwealth countries. I. Title. KGJ97.A58 2008 349.729–dc22 2007036111 ISBN 0-203-93039-8 Master e-book ISBN ISBN10: 1–85941–853–8 (pbk) ISBN13: 978–1–85941–853–6 (pbk) CONTENTS Foreword to the Second Edition xix Foreword to the First Edition xxi Preface xxiii Acknowledgments xxvi Table of Cases xxvii Table of Legislation xxxvii PART I THE NATURE OF THE LAW AND LEGAL SYSTEMS AND ITS HISTORICAL PRECEPTS 1 1 INTRODUCTION TO LAW AND LEGAL SYSTEMS IN THE COMMONWEALTH CARIBBEAN 3 THE NATURE OF THE LEGAL SYSTEM 3 A West Indian identity? 3 Turn toward other foreign law? 4 The plantation paradigm 4 Striving to be West Indian 5 The vulnerabilities of the legal system to socio-political realities 5 Economic and political sovereignty and the impact on law 6 PLURALISTIC SOCIETIES – RASTAFARIANISM AND BEYOND 6 Hindus and Muslims – ethnic and religious groups 7 The Rastafarians 8 The Orisha or Orisa 10 The failure to reflect minority interests in the law 11 The indigenous peoples 11 NEW AVENUES FOR LEGAL SYSTEMS – THE OFFSHORE LEGAL SUBCULTURE 13 THE DEPENDENT TERRITORIES 14 REDEFINING LEGAL SYSTEMS 16 Funding justice 17 2 THE HISTORICAL FUNCTION OF LAW IN THE WEST INDIES – CREATING A FUTURE FROM A TROUBLED PAST 18 INTRODUCTION– THE GROUNDINGS OF HISTORY 18 Obeah Acts and Vagrancy Acts – laws to sustain inequity and dependence 21 vi Commonwealth Caribbean Law and Legal Systems THE CONTINUATION OF LEGAL PARADIGMS BORN OUT OF SLAVERY 24 Imperial law and the indigenous peoples 26 THE LAW’S RESPONSE TO HISTORY THROUGH SOCIAL ENGINEERING– FROM REFORM TO REPARATIONS 26 Legitimising the concept of reparations 27 Judicial concerns about social engineering 28 LOCATING THE CONTEMPORARY FUNCTIONS OF LAW – POSITIVISM, NATURAL LAW AND WEST-INDIAN IDENTITY 29 The Grenada revolution and Austin’s sovereign 29 Limits of the command theory 30 The naturalists and the morality of law 30 Natural law, morality and our pluralistic societies 31 When should we obey the law? 32 ROLE OF THE SLAVE IN CREATING MODERN LAW 33 3 LEGAL TRADITIONS – TYPES OF LEGAL SYSTEMS IN THE COMMONWEALTH CARIBBEAN 35 INTRODUCTION– THE DIFFICULTY IN DEFINING LEGAL SYSTEMS 35 THE CONCEPT OF A LEGAL TRADITION OR LEGAL FAMILY 35 Which criteria to be used? 36 DISTINGUISHING CRITERIA OF LEGAL TRADITIONS 37 Identifying major legal traditions 38 THE COMMON LAW LEGAL TRADITION 39 THE CIVIL LAW OR ROMANO-GERMANIC TRADITION 41 Civil law systems in CARICOM 44 SIMILARITIES BETWEEN THE COMMON LAW AND CIVIL LAW TRADITIONS 44 THE SOCIALIST LEGAL TRADITION 45 THE RELIGIOUS LEGAL TRADITIONS 47 Muslim law 47 Hindu law 48 EVIDENCE OF THE RELIGIOUS LEGAL TRADITION IN THE COMMONWEALTH CARIBBEAN 49 Religious marriage and divorce 50 Religious dress and expression 53 Legal pluralism or legal tokenism? 54 THE LEGAL TRADITION OF THE FAR EAST 55 Contents vii CONCLUSION– WHITHER COMMONWEALTH CARIBBEAN LEGAL SYSTEMS? 55 West Indian attitudes toward law 56 Legal traditions of the Amerindians 57 4 THE HYBRID LEGAL SYSTEMS OF ST LUCIA AND GUYANA 58 INTRODUCTION 58 CLASSIFYING LEGAL TRADITIONS 58 THE HYBRID PHENOMENON IN THE COMMONWEALTH CARIBBEAN 60 THE GUYANESE EXPERIENCE 61 THE HYBRID LEGAL SYSTEM OF ST LUCIA 63 EROSION OF THE CIVIL LAW 65 Law of contract under the Civil Code of St Lucia 66 Influence of Quebec law 66 DIFFICULTIES IN APPLYING ST LUCIA’S CIVIL CODE 68 Family law under the Civil Code 69 Interpretation of the Civil Code 69 THE FUTURE OF THE HYBRID LEGAL SYSTEM 71 5 THE RECEPTION OR IMPOSITION OF LAW AND ITS SIGNIFICANCE TO CARIBBEAN JURISDICTIONS 73 Rationale for imposition 74 SETTLED COLONIES AND CONQUERED COLONIES 75 THE METHOD AND DATE OF RECEPTION 77 Reception of English statutory law 81 CARIBBEAN ATTITUDES TO RECEPTION – STATIC OR CREATIVE? 81 A CUT-OFF POINT FOR RECEPTION? 83 The local circumstances rule 88 Receiving law from jurisdictions other than England 91 RECEPTION OF LAW AS A LIBERATING CONCEPT 92 PART II THE SOURCES OF LAW IN THE COMMONWEALTH CARIBBEAN AND THEIR IMPACT ON THE LEGAL SYSTEM 93 6 INTRODUCTION TO SOURCES OF LAW 95 viii Commonwealth Caribbean Law and Legal Systems 7 THE WRITTEN CONSTITUTION AS A LEGAL SOURCE 97 THE NATURE AND IMPORTANCE OF THE CONSTITUTION 97 Constitutional supremacy 97 Functions of the Constitution 98 Form and structure of the Constitution 99 THE PROTECTION OF FUNDAMENTAL RIGHTS – A DYNAMIC LEGAL SOURCE? 100 SAVING LAW CLAUSES 101 Changes to saving law approaches 102 PURPOSIVE INTERPRETATION AND THE ATTITUDE OF THE COURTS 104 Due process and the rule of law 106 THE PREAMBLE TO THE BILL OF RIGHTS 107 HIJACKING THE CONSTITUTION AND CONSTITUTIONAL REFORM? 109 DIRECTIONS IN CONSTITUTIONAL JURISPRUDENCE 110 ECONOMIC, SOCIAL AND CULTURAL RIGHTS 112 SEPARATION OF POWERS 113 ENTRENCHMENT OF CONSTITUTIONAL PROVISIONS 114 MEASURING THE VALIDITY OF OTHER LAWS AND LEGAL SOURCES 115 The validation of other legal sources 116 8 THE COMMON LAW AND THE OPERATION OF THE DOCTRINE OF JUDICIAL PRECEDENT IN THE COMMONWEALTH CARIBBEAN 117 INTRODUCTION TO THE COMMON LAW 117 THE DOCTRINE OF JUDICIAL PRECEDENT – CHARACTER AND RATIONALE 117 Binding precedent 118 Persuasive precedents 118 ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF JUDICIAL PRECEDENT 119 Precedents relevant to social contexts 120 THE HIERARCHY OF COURTS 121 CONCEPTS IMPORTANT TO THE DOCTRINE OF PRECEDENT 122 Theratio decidendi 122 Locating the ratio decidendi 122 Obiter dicta 124 Statements of law made per incuriam and per curiam 126 Contents ix THE IMPORTANCE OF LAW REPORTING 127 AVOIDING PRECEDENT – THE PROMOTION OF FLEXIBILITY 128 Overruling decisions 128 Prospective overruling 129 Exceptions to precedent in the face of per incuriam or obiter statements 129 Precedents based on assumptions of law 129 Distinguishing precedent 130 Reversing a decision 130 First impression decisions 131 THE DECLARATORY PRECEDENT AND THE OVERRULING OF PRECEDENT– NEW DEVELOPMENTS 131 Challenges to the declaratory theory – creating new legal rules 132 Persistent overruling 133 CIRCUMSTANCES IN WHICH FINAL COURTS SHOULD OVERRULE 134 Finding the balance – the priority for judicial development 137 RULES OF PRECEDENT FOR COURTS OF APPEAL 138 Earlier Court of Appeal decisions 138 Deviation for criminal jurisdiction 140 Previous Privy Council Decisions where appeals to Privy Council have been abolished 140 RULES OF PRECEDENT FOR THE PRIVY COUNCIL 141 Where Privy Council precedent conflicts with House of Lord precedents 142 The CCJ and precedent 142 Implications where highest court not bound to precedent 143 DECISIONS OF HIGH COURTS 144 MAGISTRATES’ COURTS AND STARE DECISIS 144 CONSTITUTIONAL LAW DECISIONS 145 THE CARIBBEAN PERSPECTIVE – DIFFICULTIES WITH HIERARCHY IN THE OPERATION OF PRECEDENT 145 A complex hierarchical structure of courts 145 Pre-independence courts 146 Decisions from other Caribbean Courts of Appeal 147 Sub-regional courts 147 DECISIONS OF THE REGIONAL FINAL COURTS – THE PRIVY COUNCIL AND THE CCJ: REGIONAL OR DOMESTIC? 148 Privy Council decisions from other jurisdictions binding in practice 149 Authority for refusing Privy Council precedents from other jurisdictions 151 x Commonwealth Caribbean Law and Legal Systems The CCJ and precedents from other jurisdictions 152 A homogeneous jurisprudence 153 DECISIONS FROM THE HOUSE OF LORDS AND OTHER ENGLISH COURTS – THE DESIRE FOR CONSISTENCY IN THE COMMON LAW 153 Status of decisions from the UK House of Lords 153 CODIFIED COMMON LAW 155 Local circumstances rule and precedent 156 PRECEDENT AND THE RECEPTION OF LAW AS DECLARED IN THE CARIBBEAN 156 CAN CARIBBEAN JUDGES MAKE LAW? 159 MOULDING THE COMMON LAW AMIDST LOCAL CIRCUMSTANCES 161 An indigenous jurisprudence from a Caribbean Court of Justice 163 CONCLUSION– A DIRECTION FOR CARIBBEAN PRECEDENT 164 9 EQUITY AS A SOURCE OF LAW 166 INTRODUCTION– THE DUAL STRUCTURE OF THE COMMON LAW 166 THE HISTORICAL JUSTIFICATION FOR AND DEVELOPMENT OF EQUITY 167 THE COURT OF CHANCERY 168 THE NATURE AND CONTENT OF EQUITY 168 ‘Maxims of equity’ 169 New rights and remedies 170 THE MODERN EXPRESSION OF EQUITY 171 THE ROLE OF THE LEGISLATURE IN CREATING EQUITABLE PRINCIPLES AND OFFSHORE DEVELOPMENTS 171 NEW DEVELOPMENTS BY THE COURTS 172 OFFSHORE LEGISLATIVE DEVELOPMENTS 173 The offshore trust in equity 173 OFFSHORE JURISPRUDENCE AND THE MAREVA INJUNCTION 174 THE RELATIONSHIP BETWEEN THE COMMON LAW AND EQUITY 176 10 CUSTOM AS A SOURCE OF LAW 177 CUSTOM 177 THE COMMON LAW RULES OF CUSTOM 177

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