Historical Function of Law in the West Indies PDF

THE HISTORICAL FUNCTION OF LAW IN THE WEST INDIES – A TROUBLED PAST George A. Pilgrim B.A M.Sc Background West Indian students of law are taught about Aquinas and law, and morality theories about the function of law in society, but mention is hardly ever made of the important immoral func...

THE HISTORICAL FUNCTION OF LAW IN THE WEST INDIES – A TROUBLED PAST George A. Pilgrim B.A M.Sc Background West Indian students of law are taught about Aquinas and law, and morality theories about the function of law in society, but mention is hardly ever made of the important immoral function the law played in much of the history of the Commonwealth Caribbean  Indeed, traditionally legal analysts and jurists have not paid much attention to the historical functions of our law. Backgroun Yet such a perspective is d essential to a full appreciation of the values and norm- building precepts that underline law and legal systems in the Commonwealth Caribbean  While the established theories on the role and functions of law in society are important, the historical function of law in Backgrou our legal system is just as nd The role and functions of significant. law in West Indian society have deeper dimensions which arise out of this historical connection.  The study of West Indian Backgroun law appreciate the genesis of our own law grounded in d slavery and colonialism.  The brutality of treatment meted out to black slaves and sanctioned by the law West Indies in the West Indies is well known. What is less known is the way in which the Law judicial system actually worked and the functions it served within that context.  The initiation of law into Caribbean society was within a colonial, imperialist and inequitable framework, as a tool to legitimise the exploitative West Indies nature of plantation society. The needs of the colonial Law settlers did not necessitate law for the organisation of a civilised and humane society and these were only added piecemeal at later convenient dates.  Caribbean law has been imperialistic, foreign, elitist and oppressive in outlook. It was imperative that the black masses be kept in subordination, without rights and social mobility, in order to sustain the plantation and its metropolitan base West Beckford says this about plantation society: ‘The survival of the plantation is ensured if Indies capital is in constant supply, land monopolised, the labour force in over supply, Law and its control standardised.’ Source Beckford, G, The Caribbean Economy, 1975, London: Penguin, p 54.  Law was thus an instrument of social control and public order in plantation society. ‘The slave laws were the most ubiquitous West form of public control... Their primary function was to maintain the slave system by guaranteeing the economic, Indies social and racial subordination of the Negroes’. Law Source Goveia, E, Slave Society in the British Leeward Islands, 1969, New Haven: Yale UP, pp 311–15.  Trading in slaves was a recognised and legal activity. Slaves were property. The law provided for their sale West and purchase like any other chattel. They could even be Indies Law inherited and willed. If the slave-owner owed debts, they could be used as security or could be levied upon.  They could be mortgaged and rented out, all facilitated by the law. Yet, as a piece of property, rather than a person, the slave was incapable of legally possessing property or of legally making West contracts. Indies Law On the basic idea of the slave as property a whole system of laws was built up. Indeed, as discussed below, it has been argued that the slave was the premise for the very creation of ‘modern law’.  West Indies Law Slavery thus created a duality in law and legal institutions. There was one set of laws and legal institutions for the master and another for the slave There were even separate courts for the slave, such as that of the fiscal in Guyana, who was a magistrate. These magistrates had jurisdiction to punish offences in a summary way, as the law did not allow slaves to be tried by a jury. They were also not allowed to give evidence against whites in the courts of justice. Similarly, the penalties reserved for slaves were much harsher than those for whites.  Watson recounts some of these inequities in the penal system West The law declared that the slaves, being Indies ‘brutish’, did not merit ‘for the baseness of their condition’ being tried by a jury of their peers. If the slave was found guilty, the death Law sentence was to be pronounced and executed The death penalty was therefore effected for minor offences without benefit of a jury. Intriguingly, when a slave was executed, the owner of the slave was compensated by law in the form of damages for the loss, such sum not to exceed £25.  In 1802, an attempt was made to introduce a law making the killing of a slave a felony, but this was defeated in the House of Assembly West Indies It is suggested that capital punishment was Law used as a method to eradicate, not crime, in the strict sense, but resistance to the slave system. Such resistance took not only the obvious form of outright rebellion, but more subtle forms of resistance. Watson asks: ‘At what point does an act perceived as criminal by the whites become an act of sabotage and resistance by the enslaved black group?  Creating a future from a troubled past’. Critically discuss the historical role and function of law. Question