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UWI LIBRARIES
TOWARDS
ANEW
JURISPRUDENCE
Address by
Prime Minister Rt. Hon. P.J. Patterson
P.C., Q.C., M.P.
Graduation Ceremony
Norman Manley Law School
Saturday, October 5, 1996
UWI LIBRARIES
ou do me great honour by the kind invitation to
address the graduates of the Norman Manley Law
School, as you celebrate this 25th anniversary.
Because of my reverence for the legal prowess of the man
in whose memory this law school is named, it is an even
greater distinction you have conferred upon me.
It is apodictic that Norman Washington Manley served as
my political mentor. What may not be so widely known is
that on my return from the London School of Economics
and Middle Temple in 1963, I was privileged to undergo a
period of legal pupillage with him, while launching out on
private practice of my own. By then, his legal work was
concentrated on settling pleadings and writing opinions
rather than advocacy in the courts.
But to take before him any draft, not thoroughly researched
and which could not be persuasively argued, was certain to
arouse the legendary acuity which had previously
devastated opposing witnesses, mesmerised judges and
held juries spellbound.
TOWARDS A NEW JURISPRUDENCE
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After our first encounter, I always made sure thereafter not
to attend his chambers until I was fully prepared to defend
any pleading or opinion I had drafted.
We the people of the Caribbean , who share the history of a
common heritage, are all inspired by the vision of a new
soci ety. The Law has to se r've as a cata lyst fo r the
progressive, social and economic changes we seek.
So as to ensure this, the leaders of the Caribbean
Community, twenty-five years ago, established the Council
of Legal Education .
The provision of post-graduate legal training was to usher
in a new era for the development and practice of law in the
Commonwealth Caribbean .
Today, as we celebrate with the members of the 1996 graduating
class of the Norman Manley Law School, it is an
occasion for reflection on the challenges which this law
school faces in nurturing the legacy of the Rule of Law
within the West Indian society which it serves.
Law is the embodiment of the values in any society. It has
to be responsive to its needs and aspirations. How can we
develop a jurisprudence which reflects the souls of our
people unless it is moulded and inspired by our own
realities and our own experiences?
2 TOWARDS A NEW JURISPRUDENCE
The creation of these twin institutions must help to provide
a convincing answer.
NURTUmNG THE LEGACY OF THE RULE OF LAW
It is fash ionable to refer to the Rule of Law in reverent terms.
Some speak glibly about "equal ity before the Law" as if its
attainment is simply to be achieved by repeated assertion
and verbal recognition .
But the Rule of Law is a relationship which requires
constant nurturing. It is not simply self-sustaining. Its
growth and development must be promoted and sustained
on the bas is of princip les relevant to the pecu liar
circum stances of the society.
The development and application of those principles must
continue to challenge the moral and intellectual fibre of
our jurists as we indigenise the frontiers of the Common
Law.
The dear old lady, the Common Law, never passes the age
of child bearing. It remains forever fertile, forever young.
There are glimmering signs of hope. The recent decision
by the Jamaican Supreme Court in what has loose ly been
described as our first palimony case, although based or1
age-old notions of the Law of Trusts, essentially spoke to
obligations which can arise from a cohabiting relationship.
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In a region where common law marriages and relabionships
abound, the common law is challenged to display creativity
in fa shioning the rights and obligations of the parties. New
doctrines must emerge as a reflection of our own experience
and reality.
I reject the notion that jurisprudential advances must first
be validated from without, before we can accept their
legitimacy within our territories.
I regard the Rule of Law as but part of the rule of life,
designed to recognise the equal and inalienable right of
every human being to freedom, justice and peace in the
world. For me, the search for an appropriate legal order,
which sustains the Rule of Law, must begin with an
appreciation of human dignity as members of the societies
in which we live.
The Rule of Law is built on two pillars enshrined in the
universal declaration of human rights, namely:
• equality in the enjoyment of rights; and
• responsibility to and respect for the enjoyment
of rights by others.
How is this to be achieved under a Rule of Law when applied
to a society born out of the historical experiences of
inequality?
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There wa_s a time when slavery was decreed as valid in the
colonies, but illegal for any who breathed the pure English
air. That would have condemned us to an environment of
perpetual impurity.
How is equality before the Law, a fundamental tenet of the
Rule of Law, to be achieved when such inequity still exists?
Must the Common Law disregard the economic and social
differences which breed such inequality in fashioning rights
and remedies in the pursuit of justice?
Must it still cling to the premise that a contract of employment
is based on the outdated concept of a master/servant
relationship?
Relevant jurisprudence cannot remain static. It must
forever be unfolding if we are to ensure that the Law is a
vehicle for justice and not an instrument of oppression .
THE RULE OF LAW AND THE CHALLENGE OF
GOVERNANCE
Today, we are witnessing revolutionary changes in matters
relating to governance and in the field of technology.
These changes have caused a perceptible shift in the role
of the State, accentuated by the increasing trends toward~
globalisation, liberalisation and privatisation .
TOWARDS A NEW IURISPRUDENCE 5
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An important consequence is that our lives will be increasingly
affected by decisions taken outside of government
than by government itself.
If ultimate power is to rest with the people, then it should
not be the Government only which has to be accountable
to the people.
We have to fashion a jurisprudence which recognizes the
accountability for the exercise of such power as it impacts
upon the daily lives of people, whatever may be the source
of its exercise.
If the spirit of brotherhood is to have due meaning in the
effective distribution of power within the State, we need to
redefine the role of the Rule of Law in sustaining rights
affected by the exercise of power outside of government.
This historical development of prerogative orders which permitted
the citizen to restrain arbitrary, unreasonable and
procedurally irregular acts of the State in its conduct was
based on the recognition of the power of the· State. 7'he
improper exercise of that power can ~ntail devastating
consequences.
Government must be kept within proper bounds if it is to
have legitimacy with in the Ru le of Law . But in
contemporary society, the concept of governance must be
understood in the face of new realities. It has been a
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..;
veritable hurricane which has blown a lot of that power from
the public domain into private hands.
The Common Law and our jurisprudence will have to adapt
so as to prevent private power from exceeding proper
bounds.
I hope this graduating class will join the search for a new
jurisprudential horizon - one that better reflects our new
realities.
I expect you to fulfil the dream of the foun ding fathers and
the vision of Norman Washington Manley, whose name this
law school proudly bears.
The legacy of the Common Law which gave us the prerogative
writs of mandamus, certiorari and prohibition must liberate
and adapt itself in order to make credible the new
notions of governance and thereby curb the excess of power,
whether in the public or the private sector.
The Law must also come to terms with the new notions of
governance. The legal anqp10ral authority to,- ~r.n cannot
be sustained unless ther~··is integrity in all those who
exercise power and are part of the system of governance.
The allocation of power between the public and private
sector must carry responsibilities and obligations to the
public which the Law must equally recognize .
TOWARDS A NEW JURISPRUDENCE 7
UWI LIBRARIES
There is an obvious need, therefore, to develop an integrity
code of conduct which will realistically embrace with in its
scope, all those who exercise power and authority in our
communities that affect the quality of life of our people,
be they with in the publ ic or private sector.
In a true sense, the challenge of the Law in this new era of
privatization is to recognize that the traditional distinction,
between those who are holders of "public offices" and those
who are not, can no longer define the obligation of integrity.
Such a restricted approach would give confusing signals to
our society.
The new notions of governance must recognize that such
principles as transparency, objectivity, accountability and
the right to information can no longer be confined to the
holders of public offices in the traditional sense and should
be demanded of all interest groups.
The Law must evolve and establish new norms and
principles to serve as defining standards ·for the establishing
of these rights and oblig.tions.
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THE RULE OF LAW AND COMMUNITY RIGHTS -
A CHARTER OF RIGHTS
The Rule of Law must also recognise what appears to be a
paradigm shift from the assertion of individual rights to
community rights.
Many of the values which our society seeks to protect are
values which reflect the collective claims of our people or
of individuals bonded together by some common interest.
In a sense, the community responses which we have
witnessed in terms of action groups and even road blocks
are a reflection of a claim, real or imaginary, to community
rights.
The community feels violated as a result of some actions it
perceives to be inadequate or irresponsible.
How, then, do we define the boundaries of community rights
so as to give them an appropriate framework of legitimacy?
How do we provide a mechanism for an assertion of remedies
on a collective basis?
There is the need to establish an ethos of community that
reflects itself both in civil and political norms as well as
economic, socialand cultural tenets.
The proposed Charter of Civil Society for the Caribbean
Community and the Citizens Charter in Jamaica are both
attempts to establish a normative structure which reflects
a clear political commitment of the standards of civil society
TOWARDS A NEW JURISPRUDENCE 9
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to be promoted and respected as a part of civilized
existence.
The principles and precepts will have to embrace such
issues as participation by the commun ity, integrity in public
life, greater access to informatir- .areater accountability
and transparency in government, an; the respons ibility of
the citizen and the communi+~i
In the process of reformin~ the Jamaican Constitution, our
parliamentarians recognised the need to formulate funda-mental
rights more positively in the form of a charter which
would constitute a guarantee by the State to preserve and
protect these rights.
The newly formulated fundamental rights and freedoms will
give fresh meaning to the full expression of life, liberty,
security of person and the development of the human per-sonality
to bring a new sense of purpose and dignity to
Jamaicans.
Rights without adequate remedies are a recipe for total
frustration. If the Rule of Law is to have true meaning for
the Rule of Life, the fundamental inequalities in the
availability or affordability of access to our judicial system
must be addressed. Securing justice for breach of the
fundamental rights of the citizen cannot be sacrificed on
the altar of poverty.
TOWARDS A NEW JURISPRUDENCE
The role of constitutional change and the Charter of Civil
Society will be an important step in indigenising our values;
but these are essentially principles and articles of faith
which must be given practical application .
That is what an appropriate jurisprudence must address.
That must be part of the unrelenting mission of this law
school in fashioning our graduates for that new challenge.
THE NEED FOR A CARIBBEAN COURT OF APPEAL
However much we create these guiding principles, the
determination of their content would remain of
questionable legitimacy if we continue to rely for the finality
of those decisions outside our jurisdiction, by persons who
have been nurtured in a fundamentally different economic,
social or cultural setting.
The question whether appeals to the Judicial Committee
of the Privy Council should be abolished, has been
extensively discussed within the caribbean community.
I submit that appeals to the Judicial Committee should be
abolished for many reasons, inter alia:
• They are inconsistent with the full attainment of
political sovereignty and independence;
• They are an inhibiting factor in the development of
an indigenous jurisprudence which is more
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responsive to the values within our society and our
aims and aspirations as independent nations;
• They militate against the development of the fullest
potential of our local judges.
And yet in spite of these convincing arguments, among
others, some continue to question our readiness for this
step. Any lingering doubts which might exist about the
ability of the Caribbean to produce a court which will
function with the same independence and erudition of the
Judicial Committee of the Privy Council must now be put
to rest.
The Caribbean region has the ability to provide a final court
of appeal, manned by distinguished jurists in which litigants
will have confidence. We have the ability to develop a
jurisprudence relevant to our circumstances and a system
of justice responsive to our values and aspirations.
A BRAVE NEW WORLD
Mr. Chairman, my Lord Chief Justice, my lords, your ex~ellencies,
distinguished guests, members of the graduati~g
class, we are entering a brave new world, with new
challenges and opportunities.
The 21st ce11tury beckons us to a new era in which we face
a challenge to our legal independence and legal maturity.
TOWARDS A NEW IDRISPRDDENCE
The nurtu ring of the legacy of the Rule of Law to respond
creatively to a new system of governance will present
exciting times t o all of us and particu larly to the members
of this graduating cla ss. The imperative need to accelerate
the development of a jurisprudence reflecting the values,
hopes and aspirations of our society must propel us to new
heights of excellence. The Norman Manley Law School and
its graduates must be in the vanguard of change.
You the members of the graduating class of 1996 must be
an integral part of that renaissance. You must rekindle our
spirits in the search of law and justice in the framework of
an indigenous and relevant jurisprudence.
I congratulate the members of the graduating class and
exhort you to maintain the integrity of the legal profession
and advance the horizons of justice as we enter the next
century.
TOWARDS A NEW JURISPRUDENCE 13
UWI LIBRARIES
