Reshaping Caribbean Jurisprudence - May 2003

Reshaping Caribbean Jurisprudence:

Prospects and Possibilities of the Caribbean Court of Justice

An Address to the Grenada Bar Association,

By

Hon. Dr. Kenny D. Anthony, Prime Minister of Saint Lucia

Grenada, May 2003

 “Courts can only maintain their authority by correcting their errors to accord with justice and the advance and progress of each age”.

American Jurist Walter Clarke, State v. Falkner, 1921

INTRODUCTION

Ever since it became clear to the peoples of the region that the various Governments of Caricom were committed to an intensification of efforts to establish the Caribbean Court of Justice, and to altogether abandon the Privy Council, the debate as to whether or not this was a kind of constitutional madness has raged, almost unabated. I say almost unabated because it appears that as we move closer to actual establishment of the Court, there seems to be, in St. Lucia and I would suggest, in other parts of the OECS, a curious lull… a ceasefire of sorts, between those who oppose the Court’s establishment, [evidencing in some cases, legitimate concerns], and those who remain committed to the ideals of a real and legitimate expression of sovereignty, for the peoples of the region.

Whether this lull in the debate over the pros and cons of establishment of the CCJ is the proverbial calm before the legal and constitutional storm, remains to be seen. For after all, it could not seriously be argued that the supporters of the CCJ have managed in any way to convince the Court’s detractors. Instead, I wish to suggest that as we move inexorably towards actual inauguration, and as lawyers in the region come to the slow realization that the Heads of Government of Caricom, have indeed managed to match their rhetoric about the CCJ with real political will, the public debate between the legal intelligentsia, the media and political directorate over the need to establish the Court, will re-intensify.

A FLAWED POLEMIC AND AN UNFORTUNATE DEFENSE

While the arguments against establishment are well known and require no detailed rehearsal here, it is the case that even a cursory review of some of the more interesting histrionics of the CCJ debate, paints an unflattering picture of both sides.

Lulls notwithstanding, some detractors of the Court have continued to insist and to persist in the view, that the raison detre’ of The Court’s establishment is to facilitate hanging. This position conveniently ignores the history of the efforts to establish an alternative to the Privy Council. Moreover, it is a fact of our legal system that it is legislatures and not Courts, which hang people. For after all, a CJJ could never sentence any person to hang, where the legislature of a particular member state had decided to abolish capital sentences in their legal system. This is of course no argument for or against capital sentences but a mere statement of raw legal fact.

Indeed, to suggest that the Court will be somehow more amenable to capital sentences is to cynically ignore the historical role of precedent in our legal systems, which would, fortunately or unfortunately, invariably steer a newly established CCJ in the direction of the relevant principles applicable to capital cases. Though, as I shall hopefully show later, it is precisely because of the opportunity presented by the CCJ to redefine our concept of binding precedent, that the move towards establishment of the Court should be embraced, rather than scorned.

In any event, I am already on record as having stated that the “hanging Court” proposition is an insult to the aspirations of the peoples of this region, to claim full political and constitutional sovereignty for themselves. But this attack against the Court is singularly unfortunate, because while it is demonstrably less logical, than some of the other more legitimate reservations which have been expressed in light of the Court’s impending inauguration, it has far too often managed to distract discussion from those more substantial issues.

However, if the detractors of the Court have managed to blemish somewhat the luster of the Court’s creation, I would readily admit that as supporters of the Court, we have ourselves been less than sterling in our own defense.

BEYOND THE SINGLE MARKET AND ECONOMY

Far too often, the establishment of the CCJ has been justified and defended on the ground of its pivotal role in the realization of the Caricom Single Market and Economy, as if the mere claim to achieving real economic integration and prosperity could be enough to assert the Court’s legitimacy. This is unfortunate. The fact is that while the creation of the Caricom Single Market and Economy will be helped by the Court, it is at most disingenuous to justify the abandonment of appeals to the Judicial Committee on this ground alone.

Please do not misunderstand me. The CCJ is a necessary institution in the creation of a single economic space, but the reasons for the Court’s existence transcend the single market and economy. Unquestionably, it makes sense for one authoritative source to pronounce on matters pertaining to the interpretation of the treaty. Competing judicial interpretations could cause confusion, uncertainty and delay. But these considerations, critical as they are, should not reduce the Court’s existence to the CSME, as there are both practical and philosophical implications for such an approach.

One very practical objection to taking such a position is the inescapable fact that there is unlikely to be sufficient litigation in the Court’s original jurisdiction, at least in the very early days of the Court’s establishment, to justify that view. I want to be very clear here that I do not by any stretch of the imagination, mean to suggest that the litigation in the Court’s original jurisdiction will be less important or have less far-reaching consequences for the development of our law and jurisprudence, than in the Court’s appellate jurisdiction. In fact, I have no doubt that in the coming years, the process of economic integration will take on a life of its own, as Caribbean persons themselves provide the impetus, the raw fuel, for the creation of an extensive body of international law relating to the interpretation of the CSME treaty. For if the experience of Europe has shown us anything, it is that the very existence of a Court will itself provide the springboard for the actualization of those rights which the CSME treaty is designed to create and to confer.

As more and more citizens of the region seek to enforce treaty rights against delinquent states, lured by the opportunities for fulfillment of their basic aspirations in the single market, the international law jurisprudence of the CCJ will become increasingly more meaningful and significant to the every day lives of the average Caribbean citizen, and indeed, to legal communities in other parts of the world.

Michael Manley’s dream therefore of Caribbean economic integration, will be completed not by politicians and lawyers, but by ordinary Caribbean persons, as he himself predicted.

Notwithstanding this, it can not be gainsaid that in the first few years of the Court’s establishment, and for several years thereafter, municipal appeals from the various member states will outnumber litigation in the Court’s original jurisdiction. This situation will be aided and abetted no doubt by the fact that appealing to the CCJ will be far less expensive than appealing to the Privy Council. As a direct consequence, I expect the number of final appeals in municipal matters to rise sharply after an initial period of leveling out. Accordingly, arguing for a CCJ on the basis of its original jurisdiction, would from a practical point of view, be misplaced.

More fundamentally, a defense of the CCJ solely on the ground of its importance to the CSME is problematic from a more philosophical point of view. We must bear in mind that opposition to the abolition of appeals to the Privy Council is not in every case motivated by sheer stubborn historicism, but rather in some cases as a result of genuine passion and respect for the rule of law and concern over the integrity of the appellate process. Notwithstanding my belief that the framers of the Court have adequately answered the more salient concerns, I would freely concede that reservations about the selection of persons to sit as judges and securing adequate funding for the Court are legitimate reasons for apprehension, especially among persons who simply do not know the details of the arrangements which have been made with regard to those matters.

In light of such apprehension therefore, it has frankly been folly for any to think that repeated invocations of economic prosperity and Caribbean integration alone, as lofty, desirable and urgent as those imperatives are, could serve as sufficient propitiation for those who continue to express deeply rooted reservations about the impact of the abolition of appeals to the Judicial Committee, on the administration of justice in the region.

If this Court is truly to be a Court of the peoples of the region, then it invites those who support its establishment to argue and convince others, that the Court is able to stand on its own merits. Anything less than this will not only undermine the legitimacy of and confidence in the Court, but will altogether fail to provide a rational and complete answer to some of the more legitimate concerns and reservations about the Court which continue in some quarters, and which would persist post establishment, if left unanswered.

We owe it to future generations to make clear that there is no doubt in our own minds as to the correctness of our course. But as I have already said, thus far the polemics inspired by the decision to establish the Court, do not recommend us to posterity.

THE QUESTION OF SOVEREIGNTY- A MORE APPROPRIATE RESPONSE

This brings me to some of the more important imperatives which our constitutional affirmation might give rise to, in the establishment of the Court. Among all the grounds which have been relied upon to justify the CCJ, there are two which, to my mind, truly resonate. The first, as I have already hinted, is the need for Caribbean people to take charge of their own affairs, and to assert their right to full constitutional sovereignty.

Curiously, even this basic declaration of our legitimate aspirations, has come under attack by some commentators, who have attempted to dismiss it as merely emotive. The suggestion has been that this claim to the need for repatriation of our Constitutions, is insufficient to justify the abolition of appeals to Her Majesty’s Judicial Committee. President of the Jamaica Council of Human Rights, Dr. Lloyd Barnett for example, in delivering the Third Annual Sir Archibald Nedd Memorial Lecture held here in Grenada in 2001, attempted to deal with the issue by stating that the question of “… political sovereignty is at first blush, emotionally compelling. However, in a world which is increasingly becoming a ‘global village’ and in which jurisdiction over important areas of national life is more and more [being] conferred on regional and international bodies, this argument is losing much of its force”. Unless I am misinterpreting him, the sum and substance of the argument seems to be that in the context of globalization, the quest for increased, or full, or complete constitutional sovereignty is somehow less meaningful or urgent.

With due respect to Dr. Barnett, I can not agree. Frankly, there are too many who ignore the lessons of history itself. History is neither inexorable or immutable, and is replete with instances in which economics blocks have come and gone. In any event, it is precisely because of the fact that events in the world are challenging the countries of the region to maintain a hold over their economic, social, cultural and legal integrity, that opportunities to strengthen or to fortify our capacities to deal with these developments, should be sought after and embraced. If anything, the CCJ presents us with precisely such an opportunity to vigorously pursue that process of fortification, through inter alia, a deepening and strengthening of regionalism, in both the economic and legal spheres. Indeed, no person would suggest that Britain has less need for the House of Lords, merely because of its membership of the European Union.

To my mind therefore, it is fallacious to suggest that the establishment of a CCJ is in any way, inconsistent with globalization and all the consequences of the same. Instead, I submit to you that it is rather, a natural, reasonable and moreover, logical response to the challenges which the process of globalization, poses to us all.

In any event, the issue of sovereignty is more compelling than many will be willing to admit. I have stated before and will continue to insist, that the need for the nations of the Caribbean to assert the constitutional legitimacy of our own civilization, is more fundamental than a mere emotive claim to a theoretical sovereignty, without practical significance, or persuasive symbolism. It is in my view, simply a hard statement of principle, which should not admit to compromise at this point in our history.

Separate and apart from my own convictions, several other commentators have pointed to the necessity of completing the process of repatriating our Constitutions by severing ties with the Privy Council and the British Monarchy. On this announcement, I can almost hear the heavy breathing of your own, Professor Simeon McIntosh. Heavy breathing aside, former Chief Justice of Trinidad and Tobago, C.J. De La Bastide, once noted that “[as] a matter of principle… it is objectionable” for the Caribbean Commonwealth to abdicate its responsibility to determine final questions in judicial matters, to English jurists. And no less than former Prime Minister of Saint Lucia, Sir John Compton, (and you know that I do not enjoy quoting from him), speaking in the context of the need to end our dependence on the Privy Council, has observed that while “sovereignty has no price, it has a value”.

Indeed, to the credit of the framers of the Constitution of Saint Lucia, they anticipated that the day would come when Saint Lucia would redefine its relationship with the Privy Council. Thus, section 41(7) of the Saint Lucia Constitution Order, S.I. 1978, No. 1901, provides that the requirement of a referendum will not apply in case of a Bill to alter:

(a)                 section 107 of this Constitution in order to give effect to any agreement between Saint Lucia and the United Kingdom concerning appeals from any court having jurisdiction in Saint Lucia to Her Majesty in Council; and

(b)                 any of the provisions of the Supreme Court Order in order to give effect to any international agreement to which Saint Lucia is a party relating to the Supreme Court or any other court (or any officer or authority having functions in respect of any such court) constituted in common for Saint Lucia and for other countries also parties to the agreement.

It has been suggested by Justice Hugh Rawlins, albeit in a former life, that these sections “do not refer to the termination of appeals to the Privy Council.”  It may well be that Justice Rawlins, wearing his academic gown, has taken a narrow view of the provisions in question. I would argue rather, that the framers of our constitution in fact envisaged that the time would come to refashion our historical relationship with Her Majesty in Council. It is curious that some would seek to argue, that those aspirations could ever be without potency for us as Caribbean persons.

Notwithstanding the attempts of some detractors therefore, to diminish the urgency of our claims, the assertion of the right to repatriate our Constitutions remains a powerful dialectical attack on the tendency toward a persistent historicism, where Her Majesty’s Privy Council is concerned.

DEVELOPING A TRUE CARIBBEAN JURISPRUDENCE

The second ground which has often been relied upon to defend the Court’s establishment, is the opportunity for the reshaping of Caribbean jurisprudence, which the inauguration of the Court may very well signal. As a former academic and practicing politician, keenly aware of the historical shortcomings of our local justice systems, [in part created, by the absentee jurisprudence inherent in the present situation], I confess that it is this second ground of defense which deserves far greater prominence in the CCJ debate. As we move nearer to the actual establishment of the Court, it is not so much the opportunity to do for ourselves what we have long been able to do which most compels. Rather it is the opportunity to shape in our own image, the very laws and jurisprudence which we have thus far, by and large been condemned to import, without question, nearly wholesale into our collective legal consciousness.

Here too, others have noted and seized upon the unprecedented possibilities for development in our law, which the fact of abandonment of the Judicial Committee may beget. The learned Chief Justice of the OECS Supreme Court has remarked for example, on the “need to build our own principles in accordance with our historical and social experiences, and to meet social changes, also, in our part of the world”, and has posited that “The CCJ will empower regional jurists to give effect to regional standards and values as the laws of the region are interpreted and applied”.

More specifically, the experience of other countries where the development of a culturally and socially relevant jurisprudence has impacted significantly on the lives of the average person, compels us to consider the possibilities for transformation of our own legal landscape. Already we have seen from the South African Constitutional Court for example, judgments on the rights of South Africans to housing and medicine for treatment of HIV/AIDS. Such experiences invite us to consider the potential for the law, informed by our own values and beliefs, to impact our own societies in similarly positive and far-reaching ways.

So the opportunity to finally shape our own jurisprudence manifested principally in the Court’s appellate jurisdiction, is immediate and compelling. But will it happen? Will the reshaping of our jurisprudence take place? Will our jurists and practitioners and academics take up the challenge?

THE PROBLEM OF LEGAL ACCULTURATION

Frankly, it should not be thought that such a reshaping of our Caribbean jurisprudence is an inevitable, inescapable conclusion of the Court’s creation. Several factors militate against such a reshaping, insofar as the entire judicial process in our legal system, is dependent on a legal culture which is in many ways, independent of the institutions in which that culture is manifested.

By now, it should be clear that the identity of a legal system is not merely a juristic phenomenon. As celebrated legal philosopher J. Raz observed; “[T]he identity of legal systems depends on the identity of [the] social forms to which they belong.” Accordingly, every legal system thrives within its own culture. Watson puts it eloquently; “Law exists and flourishes at the level of idea and is part of culture”. The legal system is bound together by values and attitudes, which in turn “determine the place of the legal system in the culture of the society as a whole.” [L. Friedman].

The first impediment to the development of a truly indigenous jurisprudence is the bald fact of the acculturation of our lawyers and judicial personnel. Generally, Caribbean judges tend either to be British trained or Caribbean trained. Caribbean trained lawyers and judges are nevertheless trained in the tradition of British legal theology. The implications for the justice system are clear. Post establishment of the CCJ, British legal philosophy may continue to dominate Caribbean jurisprudence, in thought, word, and deed. The second impediment is the nature of precedent itself, though such a criticism is hardly an indictment of the ability of Caribbean jurists per se, but rather no more than an observation of the nature of common law at large. Historically however, with the possible exception of Constitutional matters involving the protection of fundamental freedoms, Caribbean jurists have shown a tendency toward a slavish adherence to common law precedents, rightly or wrongly justified on the basis of the rules of stare’ decisis. One of the unfortunate consequences of such an approach, is that the cause of justice has sometimes been compromised.

In this regard, the tendency of many lawyers to be consciously and unconsciously resistant to reform of the justice system can not be underestimated. (In Saint Lucia for example, attitudes among the majority of legal practitioners towards establishment of the CCJ ranges from indifference to hostility.) But while familiarity with existing legal structures understandably promotes a degree of comfort and stability in the legal profession, we must as lawyers recognize that in many instances, justice sector reform can often provide us with an opportunity to add greater value to the services we provide our clients. How many regional lawyers will ever get to appear before the Privy Council for example, on behalf of clients they have loyally served up to the time of first appeal? Moreover, how many cases have not been appealed to the Privy Council, simply because of inconvenience and cost? And yet the establishment of the CCJ will not only allow regional attorneys to represent their clients’ interests at the highest judicial level, but could at the same time, allow for a new level of experience and exposure.

Even so, it is surprising that resistance to the CCJ is arguably greatest among lawyers themselves. However, what we must understand is that lawyers do not own the legal system. We can not continue to treat our Court’s and jurisprudence as our exclusive domain. Baldly put, it belongs to our citizens.

THE SUBJUGATION OF OUR JURISPRUDENCE

Thus, the question of a legal culture which is learned and ingrained should not be minimized. For an interesting case study of how our own jurisprudence has recently been both hindered and advanced by precedent and the absence of precedent respectively, one need only contrast the approach of the OECS Court of Appeal in the cases of Spence & Hughes v. The  Queen, Crim. App. No. 20 of 1998 OECS, from St. Lucia and St. Vincent, and Gairy’s Case , Civ. App. No. 7 of 1999, coming out of Grenada. Putting aside for now the question of whether one agrees with the position adopted by the Court of Appeal in Spence & Hughes (supra), it is clear that the absence of any direct precedent on the question of the unconstitutionality of the mandatory death penalty, aided rather than hindered the Court of Appeal in deciding the question in the affirmative. By contrast, one can not escape the conclusion that the distinguished Chief Justice was held ransom in Gairy’s Case (above), by the long established precedents of Jaundoo’s Case (1971) AC 972 and others, which made it clear that one could not obtain an injunction against the Crown, a rule itself re-confirmed by the House of Lords in M v. Home Office (1994) 1 AC 377, as recently as 1994.

The result of the lack of binding precedent in Spence & Hughes (above), was an undeniable, and some would argue, surprising and profound development in our local jurisprudence at the Court of Appeal level, which was of sufficient substance that it arguably rendered the Privy Council’s own musings on the issue, otiose. [One only has to reflect on the unprecedented intellectual gymnastics of Lord Rodger of Earlsferry, delivering the judgment in the Privy Council decision, to grasp the point. (See Privy Council Appeal, No. 91 of 2001) Apparently, it was simply too much for the Privy Council merely to admit that they agreed with the Court below.]

However, in Gairy’s Case (above), precedent obviously constrained the Court of Appeal, thereby opening the door for the Privy Council to push our law into areas which some had thought, were forbidden, despite repeated academic advice to our judges that the position in Jaundoo (above) was untenable. In any event, the difficulties which faced the Court of Appeal, were conceded, albeit implicitly, in the Privy Council judgment delivered by Lord Bingham, where he stated; “Historic common law doctrines restricting the liability of the crown or its amenability to suit can not stand in the way of effective protection of fundamental rights guaranteed by the constitution.” (See Privy Council Appeal No. 29 of 2000, page 12) As a consequence, a Minister of Finance can now be made subject to a judicial order mandating him to pay compensation out of the Consolidated Fund, in circumstances where the state has infringed the citizen’s fundamental right not to be unlawfully deprived of his/her property. This judgment has sent shudders throughout the region and indeed, in every office of a Minister of Finance. Trust Grenada, to create history for itself, the region and indeed the world.

Of course, supporters of the Privy Council will be quick to point out that Gairy’s Case, is yet another example of how the Privy Council itself has helped to develop our jurisprudence in important ways. This observation is correct but ignores a more fundamental issue. The more pertinent inquiry which Gairy’s Case invites us to make, is this; in how many cases, which were not appealed to the Privy Council for whatever reason, have litigants been denied justice by virtue of the fact that our Courts have felt compelled to follow those very same “historic common law doctrines”, which we continue to inherit as a result of the status quo?

THE CHALLENGE

So the challenge therefore, for the Caribbean jurist, of the combination of the related but distinct factors of acculturation and precedent, will be to maintain a creative equilibrium that can help him/her navigate through a system, in which common law methodology constantly emphasizes old rules. If the focus in determining disputes will be more weighted to identifying the overall species of a case, in order to ascertain which previous decision will have to be followed, then the possibility of developing new rules which might more adequately meet the circumstances of the particular situation, will be minimal.

Here I am reminded of the old story in which a judge once challenged Rufus Choate, a famous Massachusetts lawyer, to cite a precedent before the Court to support his argument. His immortal response was, “I will look your Honour, and endeavour to find a precedent if you require it; though it would seem a pity that the Court should lose the distinction of being the first to establish so just a rule”. 

Accordingly, the likelihood of the development of a truly indigenous Caribbean Jurisprudence will be remote, unless and until Caribbean judges are willing to engage in a new legal exegesis. Professor Simeon McIntosh has captured the new ethos admirably:

“[A] regional supreme Court, conscious of its defining role in the framing of our constitutional identity, in the absence of monarchy, must, of necessity, re-make a language of adjudication that would lend rhetorical coherence to our public life. And the language in which this is to be done must be much more than a technical or professional language, to be evaluated by its clarity, precision and efficiency. No, it is to be a social and intellectual force of enormous significance, an expression of value and attitude that would in some ways be far more important to the quality of the community it defines than the particular decisions taken under it.”

THE PROBLEM OF DEPENDENCE

This state of affairs as I have described it begs the question, whether there is in fact any room for optimism that the CCJ will help to usher in this redefinition and development of an indigenous jurisprudence. The difficulty faced by the Court of Appeal in Gairy’s Case (above), for example, is symptomatic of an even more pervasive problem which has hampered the development of our law in the past. I speak here of the tendency toward psychological dependence which has so often characterized the OECS Court of Appeal, and other regional Courts of appeal, over the years. Separate and apart from the influence of precedent, it is unarguably the case that in some instances, the Courts of Appeal of the Caribbean Commonwealth still tied to the Privy Council, have been far more concerned and pre-occupied with receiving the approbation of Her Majesty’s Judicial Committee, -in effect, in dancing the beat of the Privy Council drum- than with expressing the full realities of our law.

A NEED FOR OPTIMISM

Ironically however, it is perhaps precisely because of this tendency toward dependence under the Privy Council, that there is greatest reason for optimism that the establishment of the CCJ will herald a new drive to reshape an indigenous jurisprudence, more relevant to our peculiar historical, political and social realities.

For if we accept that the conscious and unconscious subjugation of our own law, has been facilitated in great part by the fact that we have continued up to this point in our history to maintain appeals to the Privy Council, then it is not illogical to suppose that our jurists will be forced to develop the necessary confidence required to adjudicate on hard questions of law. As judges of the CCJ are increasingly forced to face and to resolve novel questions of law, the lack of the safety net in the form of a Judicial Committee, will undoubtedly provide the necessary impetus to reshape our Caribbean Jurisprudence in new and interesting ways. To hold otherwise would be to invite renewed speculation with regard to the legitimacy of the CCJ to spearhead this process. To quote the American Jurist Walter Clarke, “Courts can only maintain their authority by correcting their errors to accord with justice and the advance and progress of each age”.

In this regard, I want to suggest that it would be extremely useful for our judges of the region, to study the experiences of countries and Courts, which have broken from the Privy Council. The experiences of Australia, Canada, India, and nearer to home, Guyana, are therefore instructive, and should be carefully studied. Already we have seen unprecedented development in those legal systems, as judges have liberated themselves from the binding influence of the English judiciary, and began to carve out and to shape an indigenous jurisprudence more reflective of the legal mores of their own societies. From the Indian Supreme Court for example, we have seen recent judgments on the rights of slum dwellers to earn a living. In post Privy Council Guyana, “social engineering” became a jurisprudential term. Still more compelling and instructive, are the unprecedented developments in the Canadian legal system over the last 30 years, where difficult issues of constitutional reform leading up to and beyond the enactment of the Constitution Act 1982, had to be resolved in the absence of a Privy Council.

Indeed, I would argue that all the judges appointed to the Caribbean Court of Justice should, before they sit, undergo a period of judicial orientation aimed at helping them to grasp the enormous constitutional implications of the break with the Privy Council.

Moreover, it is this very opportunity for our judiciary to establish its own peculiar brand of legal philosophy that represents the quintessential irony in the arguments of those who continue to oppose the establishment of the Court. For unless judges of the region are given the free reign to interpret the law without the spectre of Her Majesty’s Judicial Committee hanging ominously over the psycho-legal landscape, we can not now, or ever, develop that legal maturity which the detractors of the Court, illogically insist is a necessary pre-requisite to the establishment of a CCJ. We can not develop the necessary confidence in ourselves to make the truly important decisions, while we continue to let others make them for us. To the extent that the decision in Spence & Hughes may be said to represent a departure of sorts for the OECS Court of Appeal, it is possible to suggest that the judiciary at least within the OECS, are ready and willing to meet the challenge.

CONCLUSION

In conclusion, I remain optimistic that the reshaping of our Caribbean jurisprudence will occur. The opportunity for a heretofore unknown legal freedom, is inherent in the promise of our Constitutions. This newfound legal freedom will undoubtedly be seized upon by our judiciary, practitioners and academics alike. More generally, we can not allow the law to become the hostage of history. As the distinguished Chief Justice of the OECS Supreme Court reminds us, “… jurisprudence is a developing science”. And yet, in this early stage of the development of our law, we must be patient. While we can not achieve true self-sufficiency because of precedent by definition, we can at least build a sufficiently relevant body of law, capable of nourishing an indigenous jurisprudence, equal to any that exists in the world. To use the language of Choate, I would say to a new Caribbean Court of Justice; “Earn the distinction of being the first to establish a just rule”.

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