The Common Law is a Dominant Feature of the Law and Legal

System of the Commonwealth Caribbean

What is a legal system?

Though several definitions can be made, the author’s interpretation of the term ‘legal

system’, expresses itself as the 1law, legal personnel, legal processes and legal institutions

that explicate and enforce laws. This definition concurs with that of akdlawyers.com, which

defines it as, “rules, procedures, and institutions by which public initiatives and private

endeavors can be carried out through legitimate means.” How many types of legal systems

are there? This question would be answered in the subsequent paragraph.

Types of Legal Systems

In accordance with openstax.org, “there are five (5) basic legal systems in the world. These

include common law, civil law, customary law, religious law and hybrid or mixed systems.”

Of the five (5), civil law and common law are considered to be the most widespread legal

systems in the world. Each country possesses a unique legal system as the legal system can

either be based on written laws, civil law. The legal system is also entrenched by court

precedents and judicial opinions. This type of system is referred to as ‘common law’.

Common law is the main legal system in the Commonwealth Caribbean. These are the

English-speaking Caribbean territories, with the exception of Guyana and St. Lucia.

Origin of Common Law System

1
Law – enforceable rules that govern a society.
The Common Law system was term coined “royal justice” at the time of its birth, the late

1100’s. Diversity was masked by the scheme or, rather the law, that was ‘common’

throughout Great Britain. Albeit, altering legal systems was not the objective of said national

scheme but instead, it aimed, in terms of substantive law, to incorporate many of the

conventional norms of the law of crime, family, property, and inheritance without many

alterations. The Common Law system focused and emphasized on written documentation, the

peaceful settlement of conflict, the employment of local juries to establish law and fact, and a

clear hierarchy of courts.

The Common Law system was established, originally by judges, with guiding principles

which help legal personnel understand said system and aided with its employment. Judges

developed this system through “case-by-case” court decisions rather than “through legislation

enacted by a legislature” (justice.gov). A precedent, which was the decision of a judge, was

the foundation for law making. Take for instance, an individual stole three turkey cocks from

a poultry farmer in the year 2013. The individual was tried in the court of law and fined two-

hundred pounds. A similar case where another individual stole two turkey cocks in the year

2014 but was tried and sentenced to six months in prison. The defendant’s lawyer can refer to

the case that occurred in 2013 and the court, therefore, follows the reasoning used in the prior

decision.

Principles of the Common Law System

The author made mention to a set of principles which guide the Common Law system in a

former paragraph. The general principles of the Common Law legal system state that: the

laws governing a case are based on both legal precedent, created by judges, and statutory

laws, created by legislatures; Usually an adversarial system, where the judge acts as an

impartial referee between opposing parties to a case; A jury may determine the facts , and a
judge will decide the law to be applied; There is an active role for prosecutors and defense

attorneys; Victims have a role as witnesses and may have rights as a victim to receive

information and limited participation – however, victims are not a party in criminal cases.

This system also relies on statutes that are “passed by the legislature or a parliament”

(justice.gov) and judges are tasked with interpreting how the legislature’s laws are applied in

individual cases.

Preservation of Common Law in the Commonwealth Caribbean

As a result of British colonization, the Commonwealth Caribbean has adopted and

maintained this system and it is now a dominant feature of the law and legal system of the

aforementioned territory. The British legal system is embedded in the legal systems of its past

colonies as the individual legal systems today were built on the foundation of the British legal

system. In addition to legal systems, the legal education in the Commonwealth Caribbean

follows that of Britain.

To elucidate, the law schools in the Caribbean teach the Common Law principles and

subsequently, English Common Law cases are examined by the students of law. Once these

students are called to the bar, the knowledge of Common Law would not go to waste as the

Common Law principles would now be applied in that lawyer’s legal practice and judicial

decisions. To summarize, the Common Law legal system was a foreign legal frame, brought

by the British, used by judges to “draw upon past or present judicial experience for analogies,

to help in making decisions in those situations” (supremecourt.gov). This system is also

taught in law school and is used by lawyers in court to represent and attain legal satisfaction

for clients.

Hybridization of Legal Systems in the Commonwealth Caribbean

In the beginning of this discussion, the author made mention of two (2) Caribbean countries

that do not employ Common Law as their main legal system. The two countries are Guyana

and St. Lucia. In a former paragraph, a type of legal system was mentioned but not elaborated

on, the ‘hybrid or mixed system’. A hybrid legal system is one in which a particular legal

system has been and is influenced by either civil and/or common law systems, and in some

cases and/or also influenced by customary and/or religious legal systems.

The two aforementioned countries fall under this category with regard to their legal system.

Guyana’s legal system has been influenced by the Roman-Dutch tradition, whereas St.

Lucia’s legal system has been influenced by the French civil law. In accordance with Rose-

Marie Belle Antoine, Hybrid legal systems are often in a state of flux and could reject their

mixed character and conform to a single legal tradition. Though the aforementioned could

occur, Antoine goes on to express that the infrastructure of the legal system, legal norms,

legal methodology, legal style and the values which underpin the system can be examined to

identify if more than one legal tradition can be identified. These features are examined to see

how the structured, cultural and substantive elements interact with each other under the

influence of internal and external situational factors, which can cause problems to the

continuity of said legal system if unison of the legal traditions isn’t achieved.

Conclusion

This discussion looked at the meaning of a legal system, the types of legal systems and the

legal systems prevalent in the Commonwealth Caribbean, the origin and principles of the

Common Law legal system. The preservation of said system in the Commonwealth

Caribbean was also discussed and the hybridization of legal systems in the Caribbean was

also expounded on. The author deduces from their research that although Common Law is the

main legal system in most Caribbean countries and is embedded in the legal education,
practices of the legal professionals and decisions of the judiciary, legal systems would evolve

over time to meet the needs of the society while preserving their Common Law foundation.