Historical Foundations of Australian Law: Volume 1

The common law of its nature looks backwards in order to move forwards. A system of law which emphasises precedent as a means of continuity, consistency and judicial discipline requires it. Examination of past cases is an exercise in legal history. Plucknett famously observed: "Legal history is a story which cannot be begun at the beginning." The history of the foundations of the common law is a story which recedes into a time of writs, pleas and parties; of Kings whose decrees bound the conduct of their subjects, and which interweaves with the story of equity as it emerged in England. In the 12th century, the "common law" described a novel species of continuity, emerging from previously fragmented legal systems, and achieving consensus from a plethora of particular decisions. In the 21st century, the term denotes a mature legal system which, in various forms, governs the interactions of one third of the population of the globe.

This collection of essays -- comprising 15 chapters, with contributions from sitting judges of the High Court of Australia, the Court of Appeal of New South Wales, the Federal Court of Australia, and practising members of the Bar -- introduces legal history through a variety of approaches, methods and styles. The collection begins with an introduction to the formative stages of Royal law, from the Conquest of 1066 to the end of the reign of Edward I in 1307. It moves from here to exegeses of the origins of the writs and procedure, the history of statute law, the development of the conscience of equity and the separation of powers. Particular personalities, such as Sir Owen Dixon, Glanvill and Bracton and the Jurisprudes, are discussed, as are the reception of Roman Law into the common law and the introduction of English law into Australia. The underlying theme remains constant: a proper understanding of legal doctrines, procedures and reasoning is invaluably informed by knowledge of the historical origins and evolution of each. A second, companion volume of essays, Historical Foundations of Australian Law: Commercial Common Law will be published by Federation Press in 2013.