UBC Theses and Dissertations
The reception of English law as a modern legal problem Marshall, Joan Snape
The reform of English law received is a matter of some importance today when the volume of law, particularly statute law, has created difficulties in determining what the law is in respect of a particular field of interest. The reception of English Law problem is stated within the British Columbia framework, but it is neither new or unique to British Columbia. It is timely, in that the Courts have occasion to refer to it with reasonable frequency on matters of some concern to individuals and to the public generally. It is timeless, in that it is a factor in the founding of the colonial empire of England and the evolution and development of colonies as independent nations. The primary consideration in this thesis is to state the problems relative to reception and to present their resolution by the Courts and by academics. What emerges is a pattern of fragmentary statement without definite parameters. Much of what is presented is relative not only to British Columbia but also to any other common law jurisdiction where reform has not already been accomplished. History is one parameter, but the problem is not historical. The primary thrust of the reception problem is to determine the impact of English Law in any jurisdiction and what English Law remains in force there. This is a modern legal problem, complicated in Canada by the complexities of the Federal jurisdiction. Part I states the questions that have arisen as to reception and the legislative history of the Province of British Columbia. Part II considers the reception of English law, as it has been developed by judicial reasoning and the interpretation of academics. Primarily, cases which affect British Columbia have been considered, particularly when they are at variance with the generally accepted position. The problems which remain unanswered and the conflicts presented in the various decisions are postulated with a view to establishing the need for legislative reform. Part III considers and summarizes the reform of the English Statutes and the reforms which have been effected in other jurisdictions. Their achievements and methods are referred to in order to assess the options for reform presented and their value as authority in another jurisdiction. Much scholarship has been devoted to this problem in other jurisdictions, particularly in Australia and in Africa. In Africa, emerging nationalism has focused the attention of the legislatures on the problems associated with reception which are not generally politically attractive. Relatively little has been done in Canada to assess the impact of English Law and to effect such reform. The Conclusion recommends reform legislation.
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