Making Law in Small Jurisdictions: Legal Transplantation and the Problem of �Fit’
Legal change and reform are important tools of development in the Caribbean. For at least four decades, Caribbean jurists have questioned the blind transplantation of foreign statues in the region and the heavy reliance on foreign, particularly English, precedents in the Caribbean.
The principal concerns have been the lack of fit between the Caribbean and legal rules developed elsewhere and the need for more autochthonous legal solutions.Many chapters in this book indicate how extensively the courts of the Commonwealth Caribbean rely upon the decisions of the House of Lords and English Court of Appeal for the development of the common law.[38] Lesley Walcott, for example, offers an overview of the issues facing contemporary Caribbean insurance law, particularly focusing on the doctrine of uberrimae fidei, or utmost good faith, and she raises questions about the impact of English law. She notes the heavy reliance upon English cases like the House of Lords’ decision in Pan Atlantic Insurance,[39] and argues that the Commonwealth Caribbean jurisprudence itself has yet to provide clear answers to the nature and scope of uberrimae fidei. Jackson, in contrast, offers a trenchant critique of lawmaking in the Caribbean, by legislatures as well as judges, and their unquestioning adoption of English statutes and precedents. He concedes that the transplanted laws meant for other societies become �West Indian,’ but argues that they rest on the Caribbean like �the illfitting garment of a loved one.’[40]
Similarly, Suzanne Ffolkes-Goldson illustrates the �lack of fit’ with Caribbean corporate governance regimes. These have been transplanted from developed countries to the Caribbean and she argues that they are not well suited for the corporate culture of the region. The dilemma is magnified by the heavy reliance on precedents from the donor jurisdiction in which the original donor law has often undergone significant amendment.
Both judges and academics struggle with whether to have regard to precedents from the donor jurisdiction when there are notable differences that now exist between the donor and transplanted laws. For example, many Caribbean countries have adopted versions of Canadian company legislation. But recent amendments to the Canadian legislation in 2004 have been interpreted as importing the American-styled �Business Judgment Rule’ which creates a presumption that directors are not liable for a breach of care, diligence and skill for a decision, if there was no conflict of the director’s duty and interest, the director was informed and reasonably believed the decision was appropriate at the time it was made, and that the director had a rational belief that it was in the best interest of the company. Goldson notes the difficulties in determining whether this Rule should also apply to Caribbean countries which have enacted earlier versions of the Canadian law.Using Jonathan Miller’s typology of legal transplants, the Canadian company legislation might be described as a �legitimacy-generating transplant’ that is adopted in part because of the prestige of the foreign model.[41] Miller explains that since the legitimacy here lies in the prestige of the foreign model, local actors often cede future control over the interpretation of their version.[42] Future interpretations from the donor country are adopted even though they rest on amendments or changes in the donor statute.[43] Furthermore, if the transplanted model loses prestige in the donor country and is radically amended, this affects its continued prestige and attractiveness in the transplanting country.[44]
Further, Kamille Adair’s analysis of the recent introduction of human trafficking legislation in Guyana, Jamaica and Belize points to the dangers of the �externally-dictated transplant.’[45] She shows how those statutes were adopted as a result of external pressures, primarily from the United States, and without the necessary domestic needs assessment or any critical evaluation of the existing domestic norms or international norms which were �carbon copied’ into the legislation.
Thus, the Caribbean statutes fail to effectively differentiate between the recruitment and transportation aspects of trafficking, on the one hand, and the forced labour or slavery-like practices that result, on the other. As such, the anti-trafficking statutes of Belize, Guyana and Jamaica do not provide for the offence of exploitation in and of itself, independently from the chain process of recruitment, transportation and receipt. This provokes Adair to argue for the incorporation of three different perspectives into anti-trafficking legislation: the law enforcement, human rights, and labour rights approaches. She argues that by focusing too intently on the punitive law enforcement side of trafficking, Caribbean states run the risk of violating the labour and human rights of trafficking victims.Ultimately, it is perhaps Ffolkes-Goldson who most clearly identifies the lack of fit of transplanted laws as well as shows how fraught the very question of �fit’ or suitability of transplanted laws for the Caribbean can be. The corporate culture in the Caribbean is one of closely-held companies with interlocking directorships.[46] Corporate governance regimes from developed countries would negatively impact these interlocking directorships. Yet it is hardly an answer to say these corporate governance rules are unsuitable because they would circumscribe an entrenched aspect of Caribbean corporate culture. Disruption of these interlocking directorships might be viewed as a worthwhile undertaking. The question of what is Caribbean or �fits’ Caribbean culture and society does not take us far enough. The more pointed and useful interrogation is what do reformers want to accomplish and how do they wish to balance competing interests at stake in a changing global economy.
Some scholars like Ann and Robert Seidman say quite categorically that legal transplants do not work and that the transfer of law from the developed to developing world will not aid the latter’s development.[47] They argue that transplanted law will not produce the same behaviour in both places because the operation of �pre-existing, country specific non-legal factors’ will generate different responses.[48] Kevin Davis’s point of departure, that making laws has different cost/benefit implications for large and small jurisdictions, provides another way of thinking about legal transplants in the Caribbean.[49] He assumes that when lawmakers assess whether to create indigenous laws or transplant foreign ones, there is no a priori answer.
Lawmakers must weigh a range of considerations, including cost. Using insolvency rules, he identifies many reasons why Jamaica might not want to transplant foreign laws, reasons very comparable to Ffolkes-Goldson’s. These include differences in the Jamaica economy and that of developed countries and the absence of specialized commercial courts that will determine complex cases.[50] He does not end there, and weighs this against the relative lack of experience of local lawmakers in the area and the relatively low volume of economic activity likely to benefit from their hard work, and the high costs of communicating the indigenous rules in a small jurisdiction.[51] Ironically, he concludes that the best solution might be to adopt the pre-2005 Canadian legislation that contains a large number of broad standards, recognizing that it �is not perfectly tailored to fit local circumstances and may generate legal uncertainty.’[52] Even with these shortcomings, he says this may be a better approach because �the costs of achieving a better fit between legal norms and the society to which they apply, and of resolving legal uncertainty, are more likely to be prohibitive in small jurisdictions than in large ones.’[53] Davis presents no clear winner, but indicates hard pragmatic assessments small jurisdictions must make in the development of their law.On this approach legal transplantation is not inherently good or bad. Jackson is right to be suspicious of a formal mode of analysis that says being successors to the �heritage of English law’[54] is �reason enough’ to adopt English law in the Caribbean without scrutinizing the substance of the laws imported to determine their value.[55] He is most concerned about how the rigid rules of precedent inhibit Caribbean judges from following a course of their own. At the same time we should see the transmigration of legal concepts and institutions as a normal and essential element of the development of law.[56] Professor Esin Orucu notes that �innovation in law is small and borrowing and imitation is of central importance in understanding the course of legal change.’[57] The small jurisdictions of the Caribbean must now give closer attention to why, when, how, what and from where we borrow laws, rather than an outright rejection, or uncritical adoption, of transplantation.[58] The starting point must be the needs and context of the Caribbean and the costs of lawmaking. Models from other jurisdictions, and these increasingly today include other Caribbean countries, should be considered only if they are functional, can reasonably meet these identified needs and be �tuned’ to address issues of compatibility.[59] The sobering reality is that the most satisfactory and optimal outcomes are not likely to be perfect ones in small Caribbean jurisdictions.
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