From the previous discussion of the various legal traditions of the world, it is not difficult to premise that the dominant legal tradition in the Commonwealth Carib-bean is that of the common law tradition. Yet, this assertion by no means gives a total picture. It is necessary to make further observations about the legal systems in the Commonwealth Caribbean.
Most of the countries in the Commonwealth Caribbean have now attained independence from British domination and with it they have, in the main, re-endorsed the ideals of the common law tradition. However, these countries have deviated to a limited extent from some of the fundamental principles and character-istics of the original model of the tradition. The embrace of written Constitutions is the prime example of this deviance. With the advent of written Constitutions, the doctrine of parliamentary sovereignty, a fundamental characteristic of the English common law tradition, has been rejected in favour of the doctrine of constitutional supremacy.
65 See op cit, Zweigert and Kotz, fn 4.
This variation in Commonwealth Caribbean jurisdictions is more in keeping with the Anglo-American model of the common law tradition. In fact, the Bills of Rights which exist in Commonwealth Caribbean Constitutions have been greatly influenced by the American Bill of Rights.66
It is not suggested, however, that the above changes, substantial though they may be, are enough to ground the argument that the Commonwealth Caribbean exhibits deviant tendencies from the original conception of the model in the same way as do other countries of the common law world, such as the United States of America.
Evidence of competing legal traditions in the region, in principle, if not in practice, make the classification of the Commonwealth Caribbean into one particular legal tradition more complex than it first appears. Most significant is the location of legal norms of the civil law tradition in Guyana and St Lucia. This is discussed separately in Chapter 4 (‘The hybrid legal systems of St Lucia and Guyana’). As we have seen, the socialist experiments of Grenada and Guyana can also produce some intellectual difficulty, at least from a historical perspective. The dilemma is even more apparent in the Republic of Guyana, where there has also been a blending together of the civilist and common law traditions. Coupled with the declaration of socialism found in that country’s Constitution,67 the problem of an apt category is intriguing. Is this identifi-cation with socialism to be viewed as another phase of hybridism or is it only cos-metic, having no real effect on the existing legal tradition?
Finally, one may make some observations on the attitudes toward law in the Commonwealth Caribbean and the way in which indigenous social norms impinge upon the law and legal tradition. It is worth re-emphasising that the classification of law into legal families and traditions is concerned not only with the organisation and operation of the legal system and its rules but also with the deeply rooted attitudes which inform the law. This includes attitudes towards the role of the law in the society and the way in which the law and legal system are related to the culture of the society within which it operates. To what extent can we identify cultural elements of West Indian society in the law? Could these be sufficient to justify a separate legal tradition, at least in the future? The justification for a separate classification for the legal systems of the Far East was based on just such a focus on societal attitudes and attitudes toward law. It is not frivolous to ask the question in relation to law and legal systems in the Commonwealth Caribbean.
West Indian attitudes toward law
By and large, the societies of the Commonwealth Caribbean are cosmopolitan soci-eties and are made up of a miscegenation of various races and cultures. Eastern and African ideas and attitudes meet with those of the West. It is hardly surprising that some of these cultural norms are reflected in Commonwealth Caribbean attitudes towards law. For example, the African concept of the family unit as an extended family is still evident in the Commonwealth Caribbean and has even been given
66 Which in turn has been influenced by the natural law school of thought in the civil law tradition. See discussion on the civil law above, p 30 and Chapter 7 (‘The Written Constitution as a Legal Source’).
67 Constitution of the Co-operative Republic of Guyana, 1980, Art 1.
judicial recognition. In the case of AB v Social Welfare Officer,68 a Barbadian court ruled that in Caribbean societies, where it is the norm for grandmothers to care for children, the English common law rule restricting legal adoption of such children could not be followed.
Cultural perspectives which are the result of societies which were once under the shackles of slavery and colonisation may also explain different attitudes toward the law. Law, associated with colonial rule and government, can easily be perceived as alien and oppressing. This may account for the lack of redress to the courts as a means for dispute solving. The relatively high proportion of children born out of wedlock has similarly been analysed as an outgrowth of slavery. This has resulted in a rejection of the concept of illegitimacy in some instances.69 It is another example of the way in which cultural norms have shaped the law.
Legal traditions of the Amerindians
There is no legal tradition which describes the law and legal systems of the ‘indigen-ous’ or original peoples of the region, the Amerindians. This is despite the fact that it is accepted that the Amerindians – in particular, the Aztecs and Mayas – had highly developed civilisations and legal traditions of their own.70 This omission is an histor-ical anomaly. We have already seen that the laws of these original peoples were displaced by the colonisers. What exists today is not ‘Amerindian’ law, but law designed by hostile invaders and their modern-day conspirators. It exists primarily to compartmentalise the Amerindians and preserve their minority status.71 The experi-ence of the region’s true inhabitants are not, therefore, reflected in the legal tradition ascribed to the region. It cannot even be said to form a hybrid legal construct.
68 (1961) 3 WIR 420.
69 Many jurisdictions in the Commonwealth Caribbean have abolished ‘illegitimacy’ as a legal concept.
70 The descendants of the Mayas still exist in Belize. See Chapter 10 (‘Custom as a Source of Law’).
71 See, eg, laws which regulate ‘reservations’ for Amerindians, such as the Carib Reserve Act 1991 of Dominica.