Spreading the word': Exploring The Transmission of Legal Information Through the British Empire

• Author: Jeremy Finn
• Position: Professor of Law, University of Canterbury
• Pages: 26-51

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“SPREA DING THE WORD”: EXPLOR ING THE

TRA NSMISSION OF LEGAL IN FORMATION THROUGH

THE BRITISH EMPIR E

J  F*

I. I 

It is widely known that the law in every jurisdiction in the British Empire

was, to greater or lesser extent, inuenced by law from, and legal de velopments

in, other jurisdictions. Much less attention has been paid to the mechanisms

by which information about law and legal change was transmitted between

jurisdictions, and to the ways in which those mechanisms altered over time.

is is disappointing, as a n important reason for investigation of the issue

was identied almost thirty years ago. G Blaine Ba ker, a Canadian academic

wrote in 1985 that: 1

e availabilit y of the literature of the law, an asp ect of legal cultu re rarely considered

in twentieth c entury Canad ian commentar y on the ‘reception’ of imperial laws , must

have had a great dea l to do with the way that sou rces of law informed and re ected

the developing jura l values, doctri ne, and methodology of the Br itish North Americ an

provinces.

We can put the issue another way. Knowing that there must have been

some form of borrowing or transplantation of a statute, case law rule or lega l

institution does not always allow us to understa nd fully the process involved.

We must also seek to understand how the legal information was tr ansmitted -

and whether the method of transmission aected the way in which that legal

information was regarded by the lega l or governmental communities in the

recipient jurisdiction. We may take as an example of gaps in our knowledge

the uncertainty su rrounding the movement of a legislative provision from the

colony of Canada to New Zealand. For 75 years probably the most important

legislative provision on statutory interpretation in New Zealand wa s s 5(j)

Acts Interpretation Act 1924, a version of the mischief rule which required

the courts to give statutes a “fair large and liberal ” interpretation as would

best ensure the achievement of the objects of the statute. e section is a word

for word replication of a provision found in the Interpretation Act 1849 of

* Professor of Law, University of C anterbury

1 G Blaine Baker “e Rec onstitution of Upper Canad ian Legal oug ht in the Late-Victorian

Empire” (1985) 3 Law & Hist Rev 219.

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the Province of Canada.2 Unfortunately we do not know why the Canadian

statute was passed,3 nor how the text ca me to be adopted in New Zealand 75

years later.4

is paper explores the variety of di erent ways in which the relevant

legal information was tra nsmitted between the jurisdictions over the period

from 1800 to 1950. One of its aims is to bring together material about the

transmission of legal informat ion within the former British Empire - between

Britain and the colonies - and vice versa - and bet ween various colonies. It

investigates the ow of information through publication of legal material in

law reports and law journals, through formal channels (such as the Colonial

Oce and government agencies both in Britain and the colonies), and

through less formal cha nnels. e latter include non-governmental agencies

such as trade unions and special-interest groups, personal correspondence,

and particula rly the carriage of knowledge bet ween jurisdictions by migrant

lawyers, administrators and judges. It does not seek to consider the impact

on colonial societies of the transplantation or reception of law from other

jurisdictions or indeed dierent legal systems.5

I readily acknowledge that t he acquisition of legal information did not

guarantee its use. W here colonies had a choice of dierent legal models a

nal selection might not depend on the technical merits of the dierent

options but on other imperatives. Rob McQueen argues that adoption of

English-style companies legislation was common and that the choice of that

model may have been driven by a desire to simplify the process of overseas

investment and to provide investors with some degree of certainty as to their

lega l position .6 However adoption of English-style company law in South

Africa is said to have been driven by the inadequacies of Roman-Dutch

commercial law, with English legislation being copied rst in Cape C olony

and thence to Transvaal and Natal, 7 whi le Indian company law, for reasons

2 Interpretation Act 1849 (12 Vict. c10 ) (Canada), s 5(28); repeated as Interpret ation Act 1859

(Can), s 6(28).

3 e Bill was introduced by t he Hon John Leslie, MLC, t hen Provincial Secreta ry. In the only

records of the debate I c an nd it was describe d as “probably a government Bill ” and it appears

to have gone through it s readings in each Cha mber without amendment (J Le g Co Canada,

vol.89, 1849 pp 100 and p.143). It may have been a response t o the literalist tende ncies of

the colony’s judiciary, see for ex ample the judgment of Stua rt CJ in R v Quebec Boa rd of

Trade (Court of Queens Bench, Quebec,1847, reported (1847) III Revue de Leg islation et de

Jurisprudence at 89

4 It was also adopted in Manitoba i n the Interpretation Act 1871 (Man).

5 For a cogent argume nt that transpla nting equitable doctr ines in West Africa n colonies

drastica lly eected the application i n practice of customary law s ee Kwame Akuo “Equity

In Colonial West Af rica: A Paradigm O f Juridical Dislocat ion” (2006) 50 J Africa n Law 132.

6 Rob McQu een, “e Flowers of Progress: C orporations Law In e C olonies” (2008) 17

Grith Law Re view at 383, 388.

7 Stephen D Girvin “e antecedent s of South African compa ny law” (1992) J Legal Histor y,

at 63, 70.