See Workbook 2 for the

Readings
 KEY CONCEPTS COVERED

● Discuss the historical functions of law in the Caribbean

● Define and under reception of law
● Examine the role of the local circumstances rule in in
the Caribbean and other Commonwealth Jurisdictions
● Examine the inadequacy of mainstream theories in
explaining the functions of law in the Caribbean and
advance arguments for Caribbean law
• Reception is basically the
transplantation of one form or
system of law to another form or
system or law.
• Some may argue that reception is a process of
‘borrowing’ and that the ‘history of a system
of law is largely a history of borrowings of
legal materials from other legal systems and of
assimilation of materials from outside of the
law’
Some argue that the moving of a rule or a
system of law from one country to another has
now been shown to be the most fertile source
of legal development since most changes in
most systems are the result of borrowing.
The concept of ‘borrowing’ is problematic to
the historical experience of the Caribbean
which we cannot put aside --- so the doctrine
of reception must be rooted to a particular set
of historical experiences – i.e. slavery,
colonialism.
In this way reception is
understood not as ‘borrowing’
but that of ‘transplantation’
or ‘imposition’
Lord Stowell in Rudling v Switch:
When the King of England conquers a
country . . . the Conqueror by saving the
lives of the people conquered gains a right
and property in such people; in
consequence of which he may impose on
them what laws he pleases.
Prof Belle Antoine – “we adopt the appropriate
philosophical position and use the term
‘imposition’ when describing the transplantation
of law during colonialism. However, where the
concept ‘reception’ is used in case law and other
sources, we reproduce that term to retain the
integrity of the source.”
According to Blackstone, English law would
become the law of a country outside England
either upon first settlement by English colonists
of a "desert uninhabited" country or by the
exercise of the Sovereign's legislative power over
a conquered or ceded country
When British colonists went out to other
inhabited parts of the world…and settled there
under the protection of the forces of the Crown,
so that the Crown acquired sovereignty
recognized by the European family of nations
under the enlarged notion of terra nullius
… when sovereignty of a territory could be
acquired under the enlarged notion of terra
nullius, for the purposes of the municipal law
that territory (though inhabited) could be
treated as a "desert uninhabited" country. The
hypothesis being that there was no local law
already in existence in the territory
What about settled colonies with inhabitants?

The view was that “indigenous people of a

settled colony were thus taken to be without
laws, without a sovereign and primitive in their
social organization.”
What about settled colonies with inhabitants?

Re Jamaica: “…the negro inhabitants presumably

being of no significance.”
It is one thing for our contemporary law to accept that the
laws of England, so far as applicable, became the laws of
New South Wales and of the other Australian colonies. It is
another thing for our contemporary law to accept that,
when the common law of England became the common
law of the several colonies, the theory which was advanced
to support the introduction of the common law of England
accords with our present knowledge and appreciation of
the facts
 The facts as we know them today do not fit the "absence of law" or
"barbarian" theory underpinning the colonial reception of the common
law of England. That being so, there is no warrant for applying in these
times rules of the English common law which were the product of that
theory. It would be a curious doctrine to propound today that, when the
benefit of the common law was first extended to Her Majesty’s
indigenous subjects in the Antipodes, its first fruits were to strip them of
their right to occupy their ancestral lands. Yet the supposedly barbarian
nature of indigenous people provided the common law of England with
the justification for denying them their traditional rights and interests in
land…
International Court of Justice in its Advisory Opinion on Western Sahara
(62) (1975)

Whatever differences of opinion there may have

been among jurists, the State practice of the relevant
period indicates that territories inhabited by tribes or
peoples having a social and political organization
were not regarded as terra nullius.
 If the international law notion that inhabited land
may be classified as terra nullius no longer commands
general support, the doctrines of the common law
which depend on the notion that native peoples may
be "so low in the scale of social organization" that it is
"idle to impute to such people some shadow of the
rights known to our law… can hardly be retained
• Knowledge of the cutoff date, or what doctrines were in
fact received depending on conquest or settlement can
help to determine a case.

• There are some jurisdictions that have enacted

legislation that provided at the time of Independence
that some statutes from English law would continue in
operation if there were no local laws, or that
amendments to some English laws would become a part
of the local law, even after independence.
(5) Wherever by this Ordinance, or any other
law, it is declared that the common law of
England . . . shall extend to Belize, the same
shall be deemed to extend thereto so far only
as the jurisdiction of the court and local
circumstances reasonably permit and render
such extension suitable and appropriate.
English law/common law is applicable
only to the extent permitted by local
circumstances and inhabitants, and
subject to qualifications necessitated
by local circumstances.
In the of a lacuna in the law, it becomes mandatory for the
court to refer to English law which needs to be able to pass
through three hurdles as before it can be applied in
Malaysia, namely:
●‘cut-off dates’,
●‘local circumstances’
●‘local inhabitants’. – law applied in sofar as inhabitants
permit
If the English law passes these three hurdles, then it shall
be applied by the court. However, if it fails to comply with
any of these hurdles, then the court may either adopt part
of it with or without qualification or completely reject it. In
either situation (i.e. whether the court rejects English law
completely or in part and there being no written law in
Malaysia), the court is allowed to develop the Malaysian
common law.
• If the local circumstances rule a way to make our
“own” law…
• …. why does Prof Belle Antoine state that, “… in the
Commonwealth Caribbean, judges have failed to apply
the local circumstances rule itself, instead, viewing
English statute and statutory interpretation and general
legal principles as binding regardless of the suitability of
the statutory provision to local circumstances.”