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The recent establishment of a Caribbean Court of Justice prompts reflection on the nature of legal regionalism in the Caribbean. This commentary explores the development of a regional identity around a shared legal system and the concept of `West Indian law', describing the forces underlying these processes and their contradictions.

Cricket and baseball are the summer national pastimes of England and America. They both involve players, one of whom propels a hard leather ball toward another with the intent of getting that other "out."The hitter tries to avoid getting out and attempts to hit the ball as far as possible. Umpires preside. Despite all these and other common factors, the games are different. Baseball is brash and dusty, and umpires endure frequent abuse; cricket is restrained and village greenish, and umpires rarely suffer abuse. Both games draw from history and culture.Where transplanted the games assume a different guise. In the West Indies a Caribbean passion possesses cricket. In Central America a Latin bravado inspires baseball.Much the same can be said of the common law. To the American,cricket and English law seem confined and stodgy. Baseball and American law to the Englishman seem overwrought and brazen. A book to bridge our knowledge gap in sports has not been written. Fortunately,however, Professors Patrick S. Atiyah and Robert S. Summers have written a book that should cure us of our legal ignorance and do much to lead us to a deeper understanding of the common law. The common law is our heritage but the way it is employed differs in each country. English courts would not dare, as their American cousins have, judicially to create strict liability for defective products or to replace the defense of contributory negligence with comparative fault. These tasks are legislative. The role of the courts and their relationship with other lawmaking organs differ distinctly. This difference is a product of history, political philosophy, and culture.Professors Atiyah and Summers in Form and Substance in Anglo-American Law masterfully describe the differences in English and American law. But this work is no blind taxonomy of differences; their description is designed to validate a theory of the law. In this book comparative law informs legal theory. It is a significant contribution to modern jurisprudence.

This book offers a radical challenge to accounts of the common law's development. Contrary to received jurisprudential wisdom, it maintains there is no grand theory which will explain satisfactorily the dynamic interactions of change and stability in the common law's history. Offering original readings of Charles Darwin's and Hans-Georg Gadamer's works, the book shows that law is a rhetorical activity that can only be properly appreciated in its historical and political context; tradition and transformation are locked in a mutually reinforcing but thoroughly contingent embrace. In contrast to the dewy-eyed offerings of much contemporary work, it demonstrates that, like life, law is an organic process (i.e., events are the products of functional and localized causes) rather than a miraculous one (i.e., events are the result of some grand plan or intervention). In short, common law is a perpetual work-in-progress - evanescent, dynamic, messy, productive, tantalising, and bottom-up

Introduction -- 1 Concepts, Labels and Limitations -- A Introduction -- B Retroactivity -- C Retrospectivity -- D Confusing Usage -- E Problematic Usage -- 1 Waldron on Criminal Sentencing -- 2 Fuller on Tax Liability -- F The Scope of this Book -- G Illustrations of Conceptual Distinctions -- 1 Cases Relating to Contractual Rights -- 2 Cases Relating to Personal Status -- H Conclusion -- 2 Historical Review -- A Introduction -- B General History and Statutory Construction -- C Adjudicative Retroactivity -- D Conclusion -- 3 Rationales for a General Presumption Against Retroactivity -- A Introduction -- B Certainty -- 1 The Meaning of Certainty -- 2 Certainty and Reliance -- (a) The Case for Actual Reliance -- (b) Evaluation of the Role of Actual Reliance -- (c) Certainty and the Ability to Rely on the Law -- 3 Certainty and Autonomy -- C Negative Liberty -- 1 Negative Liberty Generally -- 2 Deprivation of Security Relating to Past Events -- 3 Removal of an Actual Freedom -- 4 Negative Liberty and Criminal Law -- (a) Nullum Crimen Sine Lege Antea Exstanti -- (b) Nulla Poena Sine Lege Antea Exstanti -- D Fair Warning -- E Defeasibility -- 1 Introduction to Defeasibility -- 2 A General Principle of Fairness -- 3 Where Uncertainty is Inevitable -- 4 The Exceptional Nature of Retroactivity -- F Conclusion -- 4 The Presumption Against Retroactivity in Statutory Construction -- A Introduction -- B The Nature of the Presumption Against Retroactivity -- C Applications of the Presumption Against Retroactivity -- D Fairness as a Determinant of the Applicability of the Presumption -- E A Presumption of Variable Strength? -- F Rebuttal of the Presumption Against Retroactivity -- 1 Express Words or Necessary Intendment -- 2 Validating Statutes -- 3 Importance of Subject Matter -- G Detailed Studies -- 1 The Intertemporal Effect of the Human Rights Act 1998 (UK) -- (a) Was Retroactivity in Issue? -- (b) Treatment of the Presumption Against Retroactivity -- (c) Applicability of the Presumption Against Retroactivity -- (d) Fairness and a Presumption of Variable Strength -- (e) Statutory Language -- 2 Retroactive Sentencing -- (a) Article 7 of the ECHR and the Common Law Presumption Against Retroactivity -- (b) The Common Law Presumption Against Retroactive Sentencing -- (c) Retroactive Changes in Favour of the Defendant -- H Conclusion -- 5 Adjudicative Retroactivity -- A Introductory Matters -- 1 What is Adjudicative Retroactivity? -- 2 The Declaratory Theory -- 3 The Scope of this Chapter -- B The Doctrine Of Precedent and Judicial Attachment to Existing Principle in Novel Cases -- C The Marital Rape Cases -- 1 Outline of the Facts, Decisions and Issues -- 2 Foreseeability of Legal Change -- 3 Heinous Conduct -- 4 Changed Status of Women -- 5 An Illogical Immunity -- 6 Conclusions on the Marital Rape Cases -- D Restitution of Money Paid under a Mistake of Law -- 1 The Facts and Issues in Kleinwort Benson v Lincoln County Council -- 2 Reasons for Retroactivity -- E Private Law -- 1 The Creation of New Law without Overruling Prior Authority -- (a) Existing Authorities in Disarray Making a Degree of Retroactivity Inevitable -- (b) Ability to Rely on the Law not in Issue -- (c) Gradual Development of New Law -- (d) Moral Obloquy -- (e) Use of Obiter Dicta to Signal a Change in the Law -- 2 The Creation of New Law by Overruling a Prior Authority -- (a) Ability to Rely on the Law not in Issue -- (b) Prior Authority Wrong in Principle -- (c) Response to Changed Legal Circumstances -- (d) Response to Changed Factual Circumstances -- (e) Absence of Effect on Litigants before the Court -- (f) Refusal to Overrule a Decision because of Potential Retroactive Effects -- 3 Overruling a Prior Judicial Interpretation of a Statute -- 4 Conclusions on Private Law -- F Public Law -- 1 The Creation of New Law without Overruling Prior Authority -- 2 The Creation of New Law by Overruling Prior Authority -- (a) Judicial Review of Questions of Law -- (b) Judicial Review of Questions of Fact -- 3 Overruling a Prior Judicial Interpretation of a Statute -- 4 Conclusions on Public Law -- G Criminal Law -- 1 The Creation of New Law without Overruling Prior Authority -- (a) Judicial Response to New Factual Circumstances -- (b) Perceived Immorality -- 2 The Creation of New Law by Overruling Prior Authority -- (a) Prior Authority Wrong in Principle -- (b) Retroactivity in Favour of a Defendant -- 3 Overruling a Prior Judicial Interpretation of a Statute -- 4 Conclusions on Criminal Law -- H Overruling and the Age of a Decision -- 6 Prospective Overruling -- A What is Prospective Overruling? -- B The Status Quo -- 1 England -- 2 Australia -- 3 New Zealand -- 4 Canada -- C Evaluation of Prospective Overruling -- 1 Inconsistency with the Proper Scope of the Judicial Function in Common Law Systems -- 2 Arbitrariness -- 3 Prospective Overrruling of Decisions about Statutory and Constitutional Construction -- D Conclusion -- 7 Conclusions -- A Foundations -- B Comparison of Cases of Statutory and Adjudicative Retroactivity -- C Approaching Rebuttal of the Presumption -- D Legislative and Ju