Topic Member Assigned

1. Introduction Rennita Bentick

2. The concept of a legal tradition or legal
Kenefa Isaacs
family, Which criteria to be used?
3. Distinguishing Criteria of Legal Traditions Rawle Charles
4. Identifying major legal traditions Shamecia Livan
5. The common law legal tradition Farisa Hamid
6. The civil law or romano-germanic tradition Samuel Jagnaraine
7. Civil law systems in Caricom, Similarities
between the common law and legal Kailesh Sammy
traditions
8. The socialist legal tradition Chris Latchana
9. The religious legal traditions
- Muslim Law Troy Pollard
-Hindu Law
10. Evidence of the religious legal tradition in
Michael Mc Gregor
the commonwealth caribbean
11. Religious marriage and divorce Micheol Erkskin
12. Religious Dress and expression Reyana Thomas
13. Legal pluralism or legal tokenism? Beverley Garraway
14. Legal tradition of the far east Ameena
15. Conclusion-whithercommonwealth
Keyon Duke
caribbean legal systems?
16. West Indian attitude toward law

Business Society and

17. Legal Traditions of the Amerindians

Ethics
3. Distinguishing Criteria of Legal Traditions

The most common categorized of legal traditions that may be offered up for selection as criteria are
legal technique, historical and legal sources, ideology, religion, legal institutions, economics, geography
and race. In fact, the noted comparativists, Ziveigert and Kotz, advocate that the critical distinguishing
criterion is simply the style of differing Legal Systems.

Moreover, inherent in the element of style they identify other factors, such as distinctive institution,
ideology, legal source, historical background and development and the predominant and characteristic
mode of thought in legal matters.

As a result, the elements of legal technique, form, or mode of legal thinking which mean substantially
the same (i.e. criteria) attempt to evaluate the way in which law is organized and promulgated, more so
under the civil law system.
4. The common law legal tradition

English common law originated from the changing and centralizing powers of the king during the Middle
Ages and is based on case law and precedent rather than codified law. The common law system
developed alongside the courts of equity which devised remedies to legal issues based on fairness and
equality to counter the sometimes rigid common law. When one speaks of the common law as a
tradition, this description includes the legal rules as well as other features of the system like equity, legal
concepts, and institutions that evolved from the early court of law in England after the Norman
conquest. The legal rules of the common law traditions are often referred to as “judge-made law” or
“soft law”.

The rules of equity developed as a solution to alleviate the rigidity and harshness of the rules and
procedures of the common law courts. These rules were developed by the court of Chancery. Common
law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
With the exception of Guyana and St. Lucia, the legal system of the English-speaking Caribbean
countries is based on the Common Law system. The legal systems of Guyana and St. Lucia are best
described as “hybrid”, because Guyana has the influence of the Roman-Dutch tradition, while that of St.
Lucia has a strong influence of the French civil law.
7. Civil law systems in CARICOM, Similarities between the common law and legal
traditions
Civil System in CARICOM

1. Both Haiti and Suriname are examples of the civil law traditions and they follow the French and
Dutch models respectively.
2. It should be noted, that the Dutch tradition came from the ‘old Dutch, French and Roman
decent.
3. Point to note that Suriname is only one of the few countries that use the common law system
but is transplanted using the civil law legal system. This so because of colonization by the British
in 1651.
4. Suriname was given to the Dutch under the Peace of Breda agreement 1667 after the battle with
the Netherlands.
5. Suriname is dominated with the Civil Code; it is an original replica from the Netherlands Civil
Code. However, it also includes indigenous elements that is fitting for its own.

Similarities Between the Common Law and Civil Law Traditions

1. Sometimes it is easy to oversimplify and exaggerate the difference in legal techniques between
the Romano-Germanic and the common law traditions.
2. Precedents that are binding most time seen as theoretical and limiting; what the common law
judges did was to prefect the process of distinguishing between precedence to give themselves
some room to avoid following unpopular precedent.
3. ‘Jurisprudence constant’ this is a particular line of decisions interpreting a code and it comes
from the highest court. It should be noted that previous judicial decision is now more openly
acknowledged in the civil system.
4. While it is possible to distinguished some codification common law countries such as: Bill of
Rights written in the constitution of that country, Sales of Goods Acts or the Labour Code of
Antigua. However, the extent of codification lies between the various legal systems.
5. As legal systems are getting more familiar with each other there is more room for concepts in
one legal system to be used by another legal system. For instance French has introduced the
concept of ‘fiducie’ which is a type of trust. While common law system found the concept of
‘abuse of form’ which is used in tax cases.
6. The lines between public and private law is now giving away to administrative law.
7. In the new era there is more specialized courts in the common law system that is being formed.
For example the family courts.
8. The Socialist Legal tradition
The Socialist Legal tradition has its historical origin in the Bolshevist revolution of 1917. This
initiated the new international political and economic order known as socialism or communism.
However, many arguments have been raised whether the legal systems of socialist countries are
different from the traditions of Romano-Germanic law.
Systems introduced like perestroika and glasnost threatened the need for socialist world and with it
the need to maintain a Socialist legal tradition. Countries around the world are continuing to change
and be more open and have greater democratic political system hence changes to the legal system are
inevitable.
Under the Socialist Legal tradition, the meaning of ‘socialist’ was aimed at achieving a communist
state which simply means the dictatorship of the proletariat (the working class) conforming to the
principles laid out by the political and socialist ideology of Marxist-Leninism.
In the Commonwealth Caribbean, the Republic of Guyana has declared itself, through the
Constitution, to be ‘socialist’. However, as we can see in this country many private individuals
control property and factories and hence Guyana has not done much in moving towards the ideology
of the Socialist Legal Tradition. Within the Caribbean though, Cuba’s model falls under the traditions
of the Socialist Legal system.
The development of Socialist law can be divided into three main phases. First, the period of the
construction of socialism from 1917–36. This phase saw the legal enactment of some of the
fundamental principles of socialism, for example, the Declaration of the Rights of the Toiling and
Exploited People and nationalisation laws. The second phase began in 1936 and introduced
mechanisms to strengthen the socialist State. It was characterised by the announcement of codes, such
as a Civil Code, a criminal code, a family code, a new land code and a code of criminal procedure.
Another essential feature was the collectivisation of agriculture and other means of production in
keeping with the communist ideal. Present day reality can be viewed as the third phase. This signalled
the reformation or even the decline of socialism with increasing encouragement of private enterprise.
The socialist system believes countries that are non-socialist have laws that exist to only benefit the
privileged few. However, under socialism laws are obeyed by everyone.
Socialist Legal tradition is different now from common law since with the Socialist Legal tradition
the enforcement of law is heavily based on political ideology and content. In the socialist countries,
the legislative method is seen merely to be the speediest and efficient means of creating revolutionary
social change, whereas, in the Romano-Germanic tradition, legislation is viewed as the most concise
and clear method of expressing legal thought in the form of rules. Through legislation, the
fundamental principles of socialism have been declared. These include principles on education, civil
law and procedure, criminal law, health and judicial organisation
9.The Religious Legal Tradition
(Muslim and Hindu Law)

The Muslim and Hindu Laws are both grouped together under religious traditions. Their traditions are
different, however they have minor similarities when it comes to law, one of which is they both rely
heavily on their respective regions to shape legal systems.

The Muslim Law

Muslim law is founded on Muslim religion. The Traditionally sources of the Muslim law are Koran (the
primary source), Sunna, the book of the life of the prophet, Izma of reasoning of Muslim scholars and
kiyas. The Koran which is the primary source does not contain legal rules necessary to be referred to
directly, however a book approved by Izma named fikh with greater interpretation of Koran and Sunna
compiled sets the basis of the Muslim’s legal system of practice.

The Muslim law is considered to be one of the greatest legal of the world. The laws cannot be altered by
legislations. The rulers within the religion can only make rules within defined limits. Features of Muslim
Law Includes:

 Relative Lack of Systematization

 Persuasive Archaic nature of its legal institutions
 Originality of Content

Modernizations has introduced Western concepts of the Muslim law.

The Hindu Law

Hindu law is based on the ancient religion of Hinduism. The religion encompasses all aspects of the
Hindu’s life going beyond spiritual and moral philosophies. Several Countries adheres to the legal
traditions of the Hindu Law in which its origin is from India. The Sastras is a text as compared to the
Muslins which uses the Quran, it contains principles of religious and Moral Behaviour expected by
Hindus.

Judicial decisions and legislation are not sources of law in the Hindu legal tradition in the way that they
are in the common or civil law traditions. Instead, the books of Dharma, Artha and Karma form the
scientific base of the law. Like Muslim law, Hindu law has been influenced by Western thinking.

The Legal Traditions plays an important role with both when it comes to

 Religious marriage
 Divorce
 Dressing
10. EVIDENCE OF THE RELIGIOUS LEGAL TRADITION IN THE COMMONWEALTH CARIBBEAN

Caribbean Commonwealth Countries with large population of Hindus and/or Muslims has evidence of
religious legal tradition. Two main countries were identified in the reading as examples: Guyana and the
twin islands Trinidad and Tobago. The religious legal tradition not only allow these religions to practice
customs but also acknowledge their religious code of dressing, holidays and way of marriage. Suriname
was subsequently mentioned as another example with some interesting details. In Suriname (a
CARICOM Member State), the age permitted for religious marriage is lower than the secular legal age
and the parent consent isn’t a necessity. Also, Islamic divorce can be actioned by the husbands speaking
a formula of words and it is accepted by law. The Islamic Court’s judgement doesn’t have any legal
standing only if it is done in a form of a written agreement, then, and only then, it is recognized by the
secular legal Institution of the land.

11. Religious Marriage and Divorce

Under the commonwealth, legal systems are in place for the Muslim and Hindu marriages which must
be registered to be recognized as being legal. The commonwealth legal system does not recognize
polygamy which are of the facets of some religious marriages. Although they are legal systems in place
for marriages and divorce, a serious defect namely polygamy remains in the system which contradicts
the process of division of assets after the death or divorce of the husband. There is now a settled
position since the commonwealth law recognizes the children as having equal entitlements to those
born in or out of wedlock.

12. Religious dress and expression

The law acknowledges symbols of religious faith with regards to religious dressing and expressing, For
example: religious dress code in schools. The legal system also recognizes other forms of religious
symbolism. For example, the issue of beard being a religious symbol of Islam is acknowledged by the
Prison Act 1838 providing that 'the hair and beard of a Mohammedan shall not be cut except on the
written order of Medical Officer.

Religious garments such as orni worn by Hindu women are permitted to be worn in Court. However,
there are some cases where the court is seen by the public as contradicting human rights to freedom of
religion and equality, for example: the case involving African religions and religious expression. • In
Guyana, the Court is culturally aware of certain social patterns within society providing only three
religious books for swearing in purposes. • Also, there appears to be a swing against religious expression
particularly Islamic extremism in the European courts since the terrorist events of September 2001.
13. Legal Pluralism or Legal Tokenism

Legal Pluralism is the existence of multiple of legal system within one geographic area. Legal Tokenism
is policy or practices of making only a symbolic effort of recognition to the minority group. In the
Commonwealth Caribbean, Christian ideologies are the cornerstone for the legal system (á la colonial
laws). • For example, Christianity, being a religion with a strict doctrine of monogamy, would conflict
with the Islamic persuasion of polygamy. Polygamy is illegal in the Commonwealth Caribbean.

• Another example is the illegalization of marijuana which is an important symbol in Rastafarianism- a

religion fighting to be regarded as such by the court because it is relatively recent (as far as religions go)
and its absence of theistic disposition. • Therefore, the legal accommodation of other religions extends
only so far as it does not out rightly dispute morals widely accepted by the predominantly Christian
society.

• It is in this way that the claim of “religious freedom” seems to be the sheep’s coat for the wolf that is
Christian conformity.

• It can be justifiably assumed that in the Caribbean, pluralism is an immigrant in legality as soon as it
steps foot outside of the boundary of its native social and cultural space.

14. The Legal Tradition of the Far East

Law in the countries of the Far East may appear to follow western models in their form and technique
but in the attitude towards the law and the role of function of law in society differentiates them.
countries in the Far East do not conform to a uniform system of law. China, for example, communism
informs the political and legal order while in Japan, there is a close adherence to Western ideals in the
form of capitalism, democracy, and a legal system. There is a culture of traditional thinking in China and
Japan which has resulted in the formation of unique models of communism and capitalism. Also laws in
the countries of the Far East is characterised by negotiation, persuasion and conciliation. Which are
believed to be typical Eastern attitudes for dispute solving. However, neither the Socialist Legal nor the
common law traditions fully explain the legal systems of the Far East.
15. Conclusion-whither commonwealth Caribbean legal systems

Based on what was previously presented, it is not that difficult to predict that the dominant
legal tradition in the Commonwealth Caribbean is that of the common law tradition.
Most of the countries in the Commonwealth Caribbean attained independence from British
domination and with it, they endorsed the ideals of the common law tradition. However, these
countries have deviated to a limited extent from some of the principles and characteristics
of the original model of the tradition.
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.
It is worth re-emphasizing that the classification of law into legal families and traditions is
concerned not only with the organization 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.

16. West Indian attitudes toward law

Commonwealth Caribbean are cosmopolitan societies are made up of various races and cultures. The family unit
has the same value and is influenced by the same law. It’s a tradition in the Caribbean that grandmothers take care
of their grandchildren. This system falls under slavery and colonization and is also viewed as oppressing to people.
However, in England common law rule restricts grandparents from caring for their grandchildren. The court system
needs to develop policies to remedy the situation of children who are born out of wedlock as it leads to rejection
and illegitimacy of children.