The effectiveness and ineffectiveness of transplanting laws into Bermuda

This study examines the subject of transplantation of laws and rules generally, and the need to naturalise laws and rules to ensure that, once transplanted, they operate effectively for the end-user. Laws and rules must be naturalised to avoid the effectiveness of the transplanted law or rule being compromised. Save for one Order in Council from before the period being studied, the objects for examination are specific laws and rules transplanted to Bermuda between 2008 and 2012.

To test whether the objects for examination were effectively transplanted to the Island of Bermuda, the legal theories of Alan Watson, Pierre Legrand, Otto Kahn-Freud, Rudolf von Jhering, and Konrad Zweigert and Hein Kotz were chosen.

Effectiveness in relation to the operation of a transplanted rule or law occurs when it operates according to: (a) its intended purpose as determined by the perspective of the country or entity that first authored the rule or law; (b) its intended purpose as determined by the perspective of the recipient or host country prior to the impending; or (c) unforeseen but still beneficial purposes which may also include purposes (a) and (b).

This study asserts that the best way to achieve effectiveness is by ensuring that the transplanted law has been modified or naturalised, taking into account the donor country’s or the recipient country’s history and culture, thereby ensuring that the law is generally fit for purpose in the recipient country.

This study also asserts that the crucial question to be asked, in relation to legal transplantation, is from whose perspective one should look; that of the primary end-user or users or the ultimate end-user or users. This study asserts that it is only from the vantage point of an end-user (be they a primary or ultimate end-user) can one truly determine if a law or rule has been effectively transplanted.