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B.H. McPherson, The reception of English law abroad

B.H. McPherson, The reception of English law abroad 204 Comptes rendus / Tijdschrift voor Rechtsgeschiedenis 76 (2008) 173-204 B.H. MCPHERSON,The reception of English law abroad. Supreme Court of Queensland Library, [Brisbane] 2007. XLV + 520 p. The expansion of English law is one of the success-stories of world history. Having started in medieval times as an anomaly on a remote European island, the common law became one of the two main legal systems of our time, eventually regulating 'the lives of something like a third of the people on earth' and equalled only by what Rene David called the 'famille romano- germanique' of the European Continent. The avatars of this amazing expansion are here told in almost encyclopedic detail by a member of the Bench with a passion for legal history, Bruce Harvey McPherson, formerly Judge of Appeal of the Supreme Court of Queensland and sometime Acting Judge of Appeal of the Supreme Court of New South Wales. The chronological span goes from the twelfth to the twentieth century and the geographical scope covers the world, from America (discussed in great detail), Mrica and Asia to Australia. The author's erudition is astounding, just as his gift for succinct and limpid narrative. As the export of English law - just like that of the English language - was the result of world-wide colonial expansion, the author rightly presents a comprehensive outline of the formation of what became known as the British Empire, a discussion amounting to a real constitutional history. Different phases followed different patterns, that of the thirteen American colonies, for example, being quite distinct from British India. The legal grounds, besides 'birthright', emanated either from the Crown or from Parliament. This world-wide reception posed, among other problems, that of the uniry of interpretation. Hence the importance of Trimble v Hill of 1879 which found that it was 'of the utmost importance that in all parts of the empire where English law prevails the interpretation of the law should be as nearly as possible the same' (p. 27). It was therefore somewhat daring of the High Court in Canberra to reject, in 1963, a particular decision of the House of Lords as fundamentally 'misconceived' (p. 28). Although some parts of the story have, of course, been told before (see Sir Kenneth Robert- Wray's Commonwealth and Colonial Law of 1966), the present author rightly alleges'the absence of any readily accessible study of when and how it all took place', which is exactly what he has achieved. His study opens in the traditional way of English law-books with a Table of Cases (numbering more than one-thousand, including the famous Calvin's Case of 1608) and an Index to Key Statutes (some sixry of them). Occasionally one would have liked some further elucidation. The use of the term 'federation', for example, for the British imperial association is somewhat surprising (p. 87). And the remarkable opinions in Mabo's Case (Mabo v Queensland of 1992), full of historical and philosophical considerations, might have been presented in more detail. The author is given more to narrative and description than to discussions of causaliry. However, on p. 472 he poses the question why 'it is only places that were at some time under British or American rule that now use the English legal system or derivatives of it'. 'The reason' he finds, is 'the absence until recently of a compilation in readily accessible form of the whole of the common law'. This indispensable magnum opus contains an index of names and places, and a most detailed and useful Subject Index of no less than sixteen pages. RC. VANCAENEGEM Ghent © Koninklijke Brill NY, Leiden, 2008 DOl: 10.1163/157181908X277725 http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Legal History Review / Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit Brill

B.H. McPherson, The reception of English law abroad

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Publisher
Brill
Copyright
© 2008 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0040-7585
eISSN
1571-8190
DOI
10.1163/157181908X277725
Publisher site
See Article on Publisher Site

Abstract

204 Comptes rendus / Tijdschrift voor Rechtsgeschiedenis 76 (2008) 173-204 B.H. MCPHERSON,The reception of English law abroad. Supreme Court of Queensland Library, [Brisbane] 2007. XLV + 520 p. The expansion of English law is one of the success-stories of world history. Having started in medieval times as an anomaly on a remote European island, the common law became one of the two main legal systems of our time, eventually regulating 'the lives of something like a third of the people on earth' and equalled only by what Rene David called the 'famille romano- germanique' of the European Continent. The avatars of this amazing expansion are here told in almost encyclopedic detail by a member of the Bench with a passion for legal history, Bruce Harvey McPherson, formerly Judge of Appeal of the Supreme Court of Queensland and sometime Acting Judge of Appeal of the Supreme Court of New South Wales. The chronological span goes from the twelfth to the twentieth century and the geographical scope covers the world, from America (discussed in great detail), Mrica and Asia to Australia. The author's erudition is astounding, just as his gift for succinct and limpid narrative. As the export of English law - just like that of the English language - was the result of world-wide colonial expansion, the author rightly presents a comprehensive outline of the formation of what became known as the British Empire, a discussion amounting to a real constitutional history. Different phases followed different patterns, that of the thirteen American colonies, for example, being quite distinct from British India. The legal grounds, besides 'birthright', emanated either from the Crown or from Parliament. This world-wide reception posed, among other problems, that of the uniry of interpretation. Hence the importance of Trimble v Hill of 1879 which found that it was 'of the utmost importance that in all parts of the empire where English law prevails the interpretation of the law should be as nearly as possible the same' (p. 27). It was therefore somewhat daring of the High Court in Canberra to reject, in 1963, a particular decision of the House of Lords as fundamentally 'misconceived' (p. 28). Although some parts of the story have, of course, been told before (see Sir Kenneth Robert- Wray's Commonwealth and Colonial Law of 1966), the present author rightly alleges'the absence of any readily accessible study of when and how it all took place', which is exactly what he has achieved. His study opens in the traditional way of English law-books with a Table of Cases (numbering more than one-thousand, including the famous Calvin's Case of 1608) and an Index to Key Statutes (some sixry of them). Occasionally one would have liked some further elucidation. The use of the term 'federation', for example, for the British imperial association is somewhat surprising (p. 87). And the remarkable opinions in Mabo's Case (Mabo v Queensland of 1992), full of historical and philosophical considerations, might have been presented in more detail. The author is given more to narrative and description than to discussions of causaliry. However, on p. 472 he poses the question why 'it is only places that were at some time under British or American rule that now use the English legal system or derivatives of it'. 'The reason' he finds, is 'the absence until recently of a compilation in readily accessible form of the whole of the common law'. This indispensable magnum opus contains an index of names and places, and a most detailed and useful Subject Index of no less than sixteen pages. RC. VANCAENEGEM Ghent © Koninklijke Brill NY, Leiden, 2008 DOl: 10.1163/157181908X277725

Journal

The Legal History Review / Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du DroitBrill

Published: Jan 1, 2008

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