A legal legacy on which the sun has never set

Oxford University Commonwealth Law Journal
October 22, 2004

Do we need another law journal? The Oxford University Commonwealth Law Journal , launched in 2001, is aimed at students and practitioners throughout the Commonwealth. Its success will depend on the development of Commonwealth law studies.

What is Commonwealth law? The OUCLJ provides no definition but says "the term... is interpreted broadly". There is nowhere a chair or institute of Commonwealth law. While there are regular Commonwealth law conferences, the qualification for attending these is merely an interest in law somewhere in the Commonwealth. Nevertheless, the vigour of that series of meetings suggests that the eminent jurists who attend must have something in common to discuss.

History provides the answer. From the early 17th to the early 20th centuries, the British colonised territories from North America and the Caribbean through Africa and Asia to Australia and the Pacific. Colonial administrators, business entrepreneurs, Christian missionaries and refugees from persecution carried the common law of England with them to these lands. (The valiant contribution of the Scots to British empire-building was not recognised in this respect.) As a result, the common law of England is the ancestor of Canadian, Indian, Nigerian, Barbadian, Singaporean, Australian, Zambian, Jamaican, Papua New Guinean and New Zealand common laws today, and a host of others. These collectively are Commonwealth law.

In these countries, lawyers all speak of doctrines of consideration in contract law, the running of leasehold covenants, mens rea in murder, justification in defamation and habeas corpus . They display the other features of a legal culture, such as distinctive modes of legal reasoning and a distinctive ethos of a legal profession. Outside the Commonwealth, the US and Ireland alone apply the common law, and the former has tended to develop a somewhat different culture. A few territories such as Quebec and South Africa did not introduce the common law to replace other previously received laws. While acknowledging these exceptions, we may identify Commonwealth law as the common-law culture that exists throughout the Commonwealth and is largely peculiar to it.

Centuries of amendment of received English law through local legislation and judicial adaptation have produced some growing apart of the different versions of common law. But there has also been a constant exchange of ideas. Judgments in every Commonwealth jurisdiction routinely cite cases from others. Legislative drafters repeatedly save labour by copying each other's work. Local variation arising from differences in social, economic and political circumstances is thus offset by collective Commonwealth legal development.

Hence, Commonwealth law is a store of legal insights and inventiveness. It could be drawn on in all common-law jurisdictions, if only it were accessible. Unfortunately, lawyers in the common-law world generally focus on analysing, elaborating and assessing their local versions of the common law. Many seek inspiration by comparison with other jurisdictions, but no one takes as a subject of study the overall Commonwealth legal scene. The OUCLJ could remedy this.

The journal is edited by Oxford University law postgraduates from a variety of Commonwealth countries. They do the editorial work with enthusiasm, dedication and skill. But postgraduates do not stay for long. The editorial board mentioned here has already moved on, and it may prove difficult to ensure continuity.

The papers are without exception well researched and useful. But there is a question of how far their subject matter is Commonwealth law. Of the 44 articles and notes in the first three years of publication, most were about the laws of four countries: England, Canada, Australia and New Zealand.

More than one third were about the law of just one of these. In addition, several papers referred to the law of South Africa, two focused on the laws of the Commonwealth Caribbean countries, and one paper each discussed the laws of Fiji, the Hong Kong Administrative Region, Botswana, St Kitts, Jamaica, Kenya and Malaysia. Finally, a fascinating paper on "classical common law jurisprudence" dealt entirely with English legal history, but went to the roots of Commonwealth law by examining the foundations of the general common-law culture. More of this type of work, as well as synoptic surveys, critical and constructive, is needed if the journal is to fulfil its potential. It is to be hoped that it will encourage the development of this field.

Gordon R. Woodman is professor of comparative law, Birmingham University.

Oxford University Commonwealth Law Journal

Editor - Paul MacMahon, Shamnad Basheer, Sudhir Krishnaswamy and Alicia Triche
Publisher - Hart Publishing on behalf of Oxford University faculty of law
Pages - Biannual
Price - Institutions £65.00; Individuals £45.00
ISSN - 1472 9342

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