The Doctrine Of Reception: Imperial Jurisprudence & The Erasure Of Customary Legal Systems

1. Mechanics of the Doctrine of Reception

The doctrine of reception is the foundational legal mechanism through which English common law and statute law were transplanted into colonised territories.^[1] Under the classical formulation articulated by William Blackstone in his Commentaries on the Laws of England (1765), when British subjects colonised an 'uninhabited and desert country', they carried with them only so much of the English law as was applicable to their new situation.^[2] In 1829, this doctrine was applied to Western Australia, presuming that English property, contract, and criminal law instantly enveloped the entire southwest landmass, operating as if no prior jurisprudence existed.^[3]

2. Blackstone's Dichotomy and the Settled Colony Fallacy

Blackstone's jurisprudence drew a clear distinction between conquered or ceded colonies on one hand, and settled colonies on the other.^[4] In conquered or ceded territories (such as Quebec or the Cape Colony), pre-existing customary laws remained in full legal force until altered by the Crown or parliament. However, in settled colonies, English law was presumed to apply automatically and exclusively.^[5] By falsely characterising the Swan River as an uncultivated desert devoid of civilised government, colonial courts erased sixty thousand years of Bibbullmun customary law at a single stroke of the pen.^[6]

3. Legal Pluralism Denied: The Suppression of Customary Law

The direct consequence of the reception doctrine was the aggressive criminalisation of traditional Bibbullmun legal practices.^[7] When Aboriginal elders administered traditional restorative justice—such as judicial spearing trials (kardup) or post-mortem forensic inquests (boylya-gadak)—colonial magistrates prosecuted them under English criminal statutes for felony assault or murder.^[8] British law refused to recognise customary law as a parallel legal system, imposing a violent legal monism that denied Aboriginal people the protection of their own ancient laws while failing to grant them equal rights under colonial statutes.^[9]

4. Overcoming Reception: The Imperative for Legal Pluralism

Modern comparative law increasingly recognises that the uncritical application of the doctrine of reception is legally indefensible.^[10] In post-colonial jurisdictions such as Canada, New Zealand, and South Africa, legal systems have embraced legal pluralism, integrating customary Indigenous law alongside common law and statutory frameworks.^[11] Reforming Western Australian jurisprudence requires dismantling the absolute monopoly of received English law and granting statutory recognition to Bibbullmun customary councils, establishing genuine dual legal authority across unceded country.^[12]