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

AuthorJeremy Finn
PositionProfessor of Law, University of Canterbury
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
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.
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.

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