The Francis Forbes Society for Australian Legal History

ABN 55 099 158 620ACN 099 158 620

AN INTRODUCTION TO AUSTRALIAN LEGAL HISTORY

TUTORIALS

“UNDERSTANDING AUSTRALIAN LAW THROUGH LEGAL HISTORY”

TOPIC 2 (2 April 2013): THE HISTORICAL IMPORTANCE OF PRACTICE AND PROCEDURE IN THE DEVELOPMENT OF SUBSTANTIVE LAW

INDEX TO HANDOUTS

  1. H.S. Maine, Early Law and Custom (1883)

Extracts including chapter 11 (pages 362-392): pp 1-19

  1. W. Holdsworth, A History of English Law (3rd ed, 1944)

Extracts including pages 126-135 and 335-348: pp 20-34

  1. M.R.T. Macnair, The Law of Proof in Early Modern Equity (1999)
  2. Extracts including chapter 1 (pages 13-45): pp 35-56
  3. Council of Legal Education, A Century of Law Reform (1901)

Extracts including chapter 7 (pages 203-240): pp 57-77

  1. C.R. Cheney (ed), A Handbook of Dates: For Students of British History (Revised ed, 2000)

Extracts including chapter 5 (pages 96-111); pp 78-88

  1. J. Jackson, English Legal History in a Nutshell (2nd ed, 1955)

Extracts including chapter 8 (pages 90-107): pp 89-98

  1. A Draft Letter to a Junior Secondary School Student: pp 99-108

NOTES

  1. Patterns of thought:
  2. Procedural (adjectival) law and substantive law – Is there a difference? If so, which is the background, which is to the fore?
  3. Answers depend upon questions
  4. Henry Maine (Early Law and Custom, 1883): “So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being secreted in the interstices of procedure.” This sentiment finds express reflection in the writing of diverse English legal historians: eg, F.W. Maitland, The Forms of Action at Common Law (1st ed, 1909; CUP, 1968), Lecture I; W.W. Buckland and A.D. McNair, Roman Law and Common Law (CUP, 2nd revised e, 1965), chapter 12. An implicit application of it can also be found in W. Holdsworth, A History of English Law (Sweet & Maxwell, London, 3rd ed, 1944), vol 9, chapter 7, pages 126-135 and 335-348
  5. Australian legal history, released from a “compulsory” connection with the English legal system by the Australia Acts 1986 (Imp/Cth), is in the process of re-evaluating its past. Through legal and cultural ties with Britain, Australian lawyers have perceived many local problems through an English perspective, now quickly fading, but not quite. Chief amongst them is the relationship between “law” and “equity”
  6. “Traditional”, but outdated, contrasts between “the Common Law Tradition” and “the Civil Law Tradition”:
  7. Sources, and the form, of law (Judicial Precedents and Written Codes)
  8. Adversarial trials and inquisitive procedures
  9. “Abolition” of trial by jury, and rise of “access to justice” and “fair trial” jurisprudence
  10. J.J. Spigelman, “Truth and the Law” (2011) 85 ALJ 746
  11. The various meanings of “The Common Law”, including (but not limited to) “a national system of law”; “judge-made law, distinct from legislation”; “judge-made law based on Courts of Common Law, distinct from Equity”.
  12. Notice how British Europeans now seek to appropriate the term/concept “Common Law” to the Roman Law tradition, driven, inter alia, by an object of assimilating English Common Law and European Civil Law. Which route does Australia take in its own interests? Does it adhere to “Old England”, follow “Newly Europeanised England” or selectively adapt to its own local environment?
  13. Simplified models of jurisprudence affected by procedural norms: Common Law; Equity; Stationary Interpretation; Case Management. Does every generalisation imply the existence of an exception? Where does modern “administrative law” fit in here? A common law origin, based on prerogative writs and discretionary decision-making.
  14. The “traditional” model of judicial decision-making at Common Law, according to shared Anglo-Australian experience (governed by a community standard of “reasonableness” in conduct and by focused adjudication of competing claims of right): Trial by Jury; claims of right by parties; adjudication of adversarial claims of right; Rights defined by “Forms of Action” and procedural rules governing “causes of action”; “issue (or formulaic) pleading”, with the object of resolution of an issue in an affirmative or negative pronouncement; focus on time a right accrued; facts found by a jury of community representatives (formerly witnesses, then judges, of fact), generally without any formal statement of reasons; remedies generally unconditional; emphasis on procedures to define issues, select decision-makers, control of jury fact finding processes by judges and review correctness of decision-making procedures in formation and operation rather than a review of the merits of any substantive decision; many legal problems solved by jury verdicts purporting to resolve disputes of “fact”
  15. The “traditional” model of judicial decision-making in Equity, according to shared Anglo-Australian experience (governed, principally, by a community standard of the “properly formed conscience” as a restraint on the freedom of action of parties’ pursuit of self-interest but, also, by a philosophy of management): Decision-making by a judge, or a delegate of a judge, sitting alone; discretionary decisions, guided by “principles” rather than “rights”; a pre-occupation with “substance” over “form”, and the dictates of “conscience” rather than “reasonableness”; “prayers for relief” rather than “claims of right”; focus on identification of an “equity” justifying or requiring “intervention” rather than a “cause of action”; “fact pleading”, with the object of identifying all facts “material” to a decision to be made; emphasis on defining an “equity” at time of decision, and identifying and moulding remedies, with or without conditions; review, or appeal, procedures focused on substantive correctness of decision or whether an exercise of discretion miscarried; many legal problems solved by resort to “principles” and discretionary decisions.
  16. Note Blackstone as a source for persistent definition of English “Equity” in terms of differences in procedure of the Court of Chancery and Courts of Common Law: Blackstone’s Commentaries on the Laws of England (9th “received” edition, 1783), volume 3, chapter 27, especially pages 436-455 (read with chapter 4, especially pages 47-59). He refers to different modes of administering justice: in the mode of proof; the mode of trial; and the mode of relief.
  17. “Modern” (“Benthamite”) model of decision-making governed by prescriptive legislation: All depends on construction of a statute; focus on the “written word” embodied in legislation, liable to change according to decisions made by those (usually parliamentarians or executive government) who control the legislative process; the development of “administrative law” principles as judges cease to participate in the process of parliament and executive government. Legal problems confront a new imperative: Always check the legislation, no matter how familiar.
  18. Still unchartered waters – systematic application of modern management theory to administration of justice: Case management, practical abolition of general discovery and administration of interrogatories, and compulsory A.D.R. (“alternative dispute resolution”) procedures; problems of open justice; court practice affecting expectations, evolving into perceptions of “rights” possessed or lost; displacement of “rights” to discovery and other interlocutory “rights”, an adversarial trial and a strict application of “rules of evidence” in adjectival law; emergence of new thinking about substantive rights (eg legal professional privilege as a civil right; estoppel no longer a rule of evidence; law of mistake embraces mistakes of law as well as mistakes of fact; obligations of good faith in resolving disputes, if not generally); the rise of mediators as a new class of professional “officers” of the court; a triumph of “equity” over “common law” or something different?
  19. The need for, and imperatives of, sharing decision-making responsibilities within a community, maintaining community acceptance and meeting community expectations: Reasons for judgment, jury verdicts and A.D.R. processes.
  20. The availability and form of “law reports” affects perceptions and development of “law”. What effects have the printing press, commercial publishing and the internet had on legal research and legal argument?
  21. Identification of “procedural” changes and the possibility of changes in “substantive” law:
  22. The Influence of English procedural forms on Australian jurisprudence: Adaptation of the concept of a “form of action” to a court not constrained by institutional or procedural constraints of English courts suggests a substantive law character for “forms of action” in Australia?; The Equity tradition in NSW, a concomitant of trial by jury?
  23. Common Law procedure, and the rise and fall of trial by jury
  24. Equity procedure, and judge alone hearings
  25. The law of evidence: Finding “facts” and controlling fact finding processes
  26. Appeals and systems of review
  27. A change in perspective in legal literature: From “law of actions” to “law of remedies”?
  28. In the long run, plaintiffs determine the course of development of case law (eg Mabo as a recent, Australian case study)?
  29. Illustrations of “practice books” from earlier generations (Tidd and Buller at Common Law, Fonblanqre and Maddock in Equity) and dictionaries, digests, encyclopaedias in use by practitioners (Bacon, Comyns) before the emergence of university driven texts (including Blackstone) and narrative forms of encyclopaedia (Stephen, Halsbury). In NSW, note T. Rolin, The Practice of the Supreme Court at Common Law (LBC, Sydney, 1903) for local common law “forms of action”, and rule 14.12 of the Uniform Civil Procedure Rules, 2005 (NSW) for the current residue of historical “common money counts”
  30. General reading list:

(1) J.H. Baker, An Introduction to English Legal History (Butterworths, UK, 4th ed, 2002), chapters 4-6

(2) W.J.V. Windeyer, Lectures on Legal History (LBC, Sydney, 2nd rev ed, 1957), chapters 14 and 36

(3) S.F.C. Milsom, Historical Foundations of the Common Law

(4) T.F.T. Plucknett, A Concise History of the Common Law (Butterworths, London, 5th ed, 1956), Book 2, Part 1

(5) A.H. Manchester, Modern Legal History (Butterworths, London, 1980), chapter 8

(6) S.F.C. Milsom, A Natural History of the Common Law (Columbia UP, New York, 2003)

(7) R. Sutton, Personal Actions at Common law (Butterworths, London, 1929)

(8) Council of Legal Education, A Century of Law Reform (MacMillan & Co, London, 1901), chapter 1 (W.B. Odgers “Introductory: Changes in the Common Law and in the Law of Persons, in the Legal Profession and in Legal Education”), chapter 6 (A. Birrell, “Changes in Equity, Procedure and Principles”) and chapter 7 (W.B. Odgers, “Changes in Procedure and in the Law of Evidence”)

(9) F.W. Maitland, The Forms of Action at Common Law (Cambridge UP, 1909; 1968 reprint) and Equity: A Course of Lectures (Cambridge UP, 1909; 2nd ed revised, 1936; 1969 reprint)

(10) A.F. Rath, Principles and Precedents of Pleading in the Supreme Court of NSW at Common Law (LBC, Sydney, 1961)

(11) F.F. Pinder, Stephen’s Treatise on the Principles of Pleading in Civil Actions (Stevens & Sons, London, 7th ed, 1866)

(12) E. Bullen and S.M. Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (Stevens & Sons, London, 3rd ed, 1868)

(13) J.H. Merryman, The Civil Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (Stanford University Press, 2nd ed, 1985)