home > jurisprudence > transformation of the common law

 Reflections on the state of the law 1949 - 1989, A study of the transformation of the common law                                               
        Synopsis
          Introduction
          Consumer Protection, Product Liability and Negligence
          Environmental protection
          Public law 
          The criminal law
          The matrimonial law
          Why the common law system could not cope


  Aspects of the adversarial approach to dispute settlement
                                                                                                 

------------------------------------------------------------------------------------------------------------


Reflections on the state of the law, 1949 - 1989, A study of the transformation of the common law 


Synopsis

This essay describes the dramatic changes to the common law in the last half century, particularly in fields as diverse as consumer protection, environmental law, corporate crime and matrimonial law. But the thrust of the essay is not description of the changes as such, significant as they are individually, but in the transformation of a legal system based on common law legalism to a regulatory legal order. The common law had hitherto been able to cope with change. Statutes were corrective or supplementary. The ordinary processes of precedent based upon analogy had been sufficient for the law to meet social and economic change. But the processes of analogy by which the system developed more or less autonomously could no longer meet the fundamental revolution in the values which had underpinned the common law as when, for example, the law was directed not just to the vindication of private rights or the imposition of duties upon individuals but where its object, because of a change in values, was the protection of a section of the public as such. Statutes, overwhelming in number, are no longer mere corrections or additions to the common law system. They now represent a different legal order which the essay describes and explains.

Introduction

Forty-four years is a long time.  When I began, Dixon, whose prestige throughout the common law world was quite extraordinary, had not been appointed Chief Justice of the High Court.  Now, even his retirement seems an age ago.  It is not however longevity but the rate of change which has made the law of the 1940s seem to belong to another era. 

 

In 1949, one could of course see that the law was quite different from what it had been in say 1849.  But a change in the law, even a dramatic change, is quite different from a change in the system.  It is only, in looking back, that one can recognise we were poised before changes so substantial that the system itself was to be altered.

 

The radical changes since 1949 and, especially in the last quarter of the century, had been foreshadowed by incremental changes in the years before the Second World War.  Even so the volume of Statutes, Commonwealth or State, was slender.  The wartime aberration of National Security Regulations had passed.  The ‘Defence Power’ in the Constitution relied upon to sustain so many of the regulations contracted with the arrival of peace.*  And so we imagined that the law would return to what it always had been, essentially judge-made law.  This was not to be .  Our lack of perception was understandable.  The common laws’ techniques for coping with legal change had hitherto been successful.

 

The classical period of the common law – by which I mean the nineteenth century, operated within the parameters of certain fixed principles. These principles which I shall call the ultimate principles were themselves based upon certain assumed values. 

 

In civil law these ultimate principles were the grounding of liability in fraud and fault, liberty of contract and the right of private property.  In the substantive criminal law they were guilt, intent and personal responsibility.  In the criminal process they were protection of the individual against the power of the State.  In matrimonial law they were sanctity of marriage and the dominance of the husband.

 

As I mentioned, the ultimate principles derived from certain assumed values.  One of these was the value attached to individual responsibility.  Each person was expected to bear his or her misfortunes.  Society should not indemnify individual citizens against accident or illness whether through compensatory damages, health care or social security.  If, however, injury were caused through fault that would be a different matter.  Under the common law, we had to bear our own misfortunes but not injuries inflicted by the fault of others.

 

Similarly, persons entered into contracts at their peril.  In the mid-nineteenth century a Court could say ‘that there is no law against letting a tumble-down house’.  Persons were bound by their promises and it was immaterial that bargaining power was unequal or that subjectively there was no true consent. 

 

Consistently with the value placed upon individual responsibility the criminal law assumed freedom of will.  Neither congenital defect nor economic hardship would affect guilt or substantially mitigate punishment.  Also, equally consistent with this same value, the criminal law insisted upon intent as a condition of criminal liability and excused the insane where the accused did not know what he was doing or what had been done was wrong.

 

A second fundamental value was that of individual rights. *

 

The chief right proclaimed by Locke at the Revolution was the right of property.  That right was guaranteed by each of the great eighteenth century American and French Declarations.  It was also guaranteed by the common law.  This remained true throughout the century.  In 1895, the House of Lords held an owner not liable for intentionally intercepting by means of excavations on his own land the underground water that would otherwise have flowed into the adjoining reservoir of his neighbour even though his only motive for doing this was to cause the neighbour to buy the land at his price. 

 

It was not just individual property rights that were valued.  The value placed on individual rights required that the State’s power should be circumscribed.  Thus the Crown could not determine private rights and duties.  These were a matter of law and could only be decided by the Courts. The Courts defined the ambit of the Crown’s prerogative.  The Crown could not imprison or detain any person other than in accordance with law.  In the absence of lawful authority, a person so detained would be freed by habeas corpus. The presumption of innocence and the privilege against self-incrimination which evolved from the Stuart period were by now firmly established. 

 

A legal system underpinned by these values and committed to the principles deriving from them, would be concerned with disputes between individuals or between individuals and the State.  It would not and did not recognise an injury to a section of the public, present or future, over and above the aggregation of individual injuries (which might each be so minuscule as not to warrant separate actions).  Accordingly, there was no way consumers as a group or the environment as such could be protected at common law.  Except at the most primitive level these were simply not recognisable interests.  (There was nothing like the modern class action.  The Attorney-General could grant his fiat – approval to sue to protect the public – but he did so only in the most exceptional circumstances.)  The common law was concerned therefore to decide the rights and duties of individuals.  It did so by applying to the particular instance a pre-existing rule of law.  These common law rules were laid down by the judges.  The rules were derived from previously decided cases according to the doctrine of precedent.  Theoretically, therefore, they were not ‘made’ by the judges.  Rules of law were also of course enacted by Statute.  The volume of statutes was however relatively small and rarely departed from common law principles.  Even as late as 1949 the essential values underpinning the common law were by and large accepted by Parliament.  There were inroads here and glosses there but substantially the common law system and the values which accompanied it were intact. 

 

Against that background we shall look at certain areas of law over the intervening period.

 

Consumer Protection, Product Liability and Negligence

  Consumer Protection and Product Liability did not exist as they do today.  Neither would have been known under that description.  The consumer was merely a party to a contract and, as such, was to be treated no differently from any other contractual party.  Such a party was bound by the terms of the bargain as expressed in the contract.  What the contract said, not what the parties thought or believed it said, alone mattered.  Inequality of bargaining power was almost immaterial and, except in grave circumstances, the harshness of the terms on one side or the other, was irrelevant.  Fraud alone would enable damages to be recovered: an innocent misrepresentation might, in certain circumstances, allow the contract to be set aside provided, in the case of the sale of goods, that the goods had not been delivered.

 

The Victorian attitude which still prevailed was expressed very clearly in 1875 by Sir George Jessel, the then Master of the Rolls:

 

“If there is one thing more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be enforced by Courts of Justice”.

 

In the case of sales of goods this proposition had been applied with rigour.  The basic rule was ‘caveat emptor’ (let the buyer beware).  Only gradually had warranties begun to be implied in sales.  Implication of terms was allowed where to do so would not be contrary to the express terms of the contract.

 

The Depression had led, in Victoria, and perhaps in other States, to the enactment of hire purchase legislation which imposed certain limited statutory requirements upon financiers by implying statutory terms.  The liability of retailers for goods sold by them was still very restricted. 

 

Before 1932, the manufacturer would not have been liable at all except perhaps in the specific field of chattels dangerous per se.  The consumer had no right to recover damages against a manufacturer for injury caused by defective products even if the defect resulted from negligence.  This was so because there was no contract between them and no duty of care owed.  In 1932, in Donohue v Stevenson, the House of Lords held by a majority of three to two, that even though the manufacturer was not party to the contract with the consumer, the manufacturer owed the consumer a duty of care.  The facts were simple.  A bottle of ginger beer had been bought by a girl in a café.  She poured some of it into a tumbler and drank it.  The bottle was made of opaque glass.  On pouring the ginger beer the remains of a decomposed snail came out with the dregs.  As a result of this nauseating sight and the impurities in the ginger beer which she had already drunk, the girl suffered from shock and severe gastro-enteritis.  An action for damages was brought against the manufacturer, not the café proprietor, and was upheld.  The decision itself was revolutionary in terms of accepted legal categories. 

 

In 1949 the Courts were still working out the implications of Donohue for the law of negligence.  It was clear from the decision that a manufacturer owed a duty of care at least where the defect in the goods could not have been ascertained by inspection.  The question was how far did the duty of care go?  Was it confined by any categorical exceptions?  Was it restricted by physical proximity?  Two cases decided a few years before 1949, one in the High Court of Australia and the other in the House of Lords, were under a great deal of discussion at the time.  The House of Lords decided Bourhill v Young in 1943.  There a motorcyclist, whilst driving at great speed collided with a car and was killed.  A fish wife, whilst getting her fish basket off the far side of a stationary tram, heard but did not see the accident.  Though she had  no reasonable fear of immediate bodily injury to herself she suffered from fright and was unable to carry on.  She was eight months pregnant and a month later the child was still-born.  The House of Lords held that she was not within the area of potential danger and that the cyclist owed her no duty of care. 

 

The High Court case was Chester v Waverley decided in 1938.  A small boy had been playing in a street in a Sydney suburb.  He fell into a trench which the council workmen had left in the street.  He was drowned in some stormwater which had collected in the trench.  The body was not recovered until some hours after the boy had been lost by his parents.  His mother had joined in the search and was present when the body was recovered.  She suffered nervous shock as a result and sued the Council for damages, basing her action on the negligence in leaving an unprotected trench in the street.

 

The High Court, by a majority of three to one, held that the facts did  not disclose a breach of any duty owed by the Council to the victim’s mother.  She was not under the circumstances a ‘neighbour’.  I mention these cases, not just because they were then current, but because they reveal a quite different feeling towards liability for accidental injury than we would hold today. 

 

In the case of motor accidents compulsory third party insurance was introduced in Victoria in 1939.  Liability itself depended upon negligence although compulsory insurance would guarantee that the victim would not suffer if the driver had no assets.  But in 1949 it was still the rule that contributory negligence barred recovery.  Any negligence by the victim for his or her own safety no matter how slight would deprive him or her of a right of action altogether.  It seems difficult now to imagine how such an unjust rule could have existed – even less so with accidents occurring between fast moving vehicles in which ‘fault’ became a euphemism for the merest inattention.  The simple expedient of apportionment was adopted by Victoria in 1951. 

 

Environmental Protection

At the time of which I write there was no general law for the protection of the environment.  That concept did not exist.  Apart from some elementary local government by-laws the community was not seen as having an interest in the state of the environment.  The law was concerned only with the regulation of private property.  Remedies were available for private nuisance which was constituted by an improper or unreasonable interference with the use and enjoyment by another of his private property.  It was possible in such a case to obtain an injunction to prevent the nuisance as well as damages.  The tort of Rylands v Fletcher (1867) allowed proceedings to be undertaken against a neighbouring land owner who had allowed something dangerous or injurious to escape from his land.  But the protection of the environment by the State had to await the 1970’s. 

 

Public Law 

There was at this time no Administrative Appeals Tribunal, no ombudsman and the only available remedies were through the use of the prerogative writs.  These ancient writs had been used to control Justices of the Peace.  They had now of necessity to be used to control modern government.  This was a critical area.  It was an essential characteristic of the common law that only the Courts could determine private rights.  It was also essential that government should be amenable to law.  The doctrine of equality before the law harmonised with the common law system.  It was however difficult to give this doctrine effect because of a medieval hangover which allowed certain immunities to the Crown.  These anomalous immunities still prevailed in Australia in 1949 and could only be done away with by statute (as they were in England in 1947). 

 

But a greater threat to the common law system arose from the large number of governmental or ministerial discretions conferred by statute which allowed the government in substance to determine private rights and interests.  The Courts could only deploy the old prerogative writs to control the exercise of these ministerial powers.  They were quite inadequate.  They were limited to excess of jurisdiction or transparent error of law –  error, as it was called, on the face of the record.  This had been an area of concern in the two decades before 1949.  The United Kingdom Lord Chief Justice, Lord Hewart, had written a book ‘The New Despotism’ and a noted jurist, C.K. Allen, a book entitled ‘Bureaucracy Triumphant’, but by 1949 we had seen only the beginnings of an attempt to expand the availability of the writs and the use of the Declaratory Order or Declaration as a remedy.

 

The Criminal Law 

The English mode of trial was applicable throughout Australia and was regarded with something akin to veneration.  Serious criminal offences were tried by Judge and jury and most lawyers would still have agreed with Blackstone’s eighteenth century comment that ‘the liberties of England’ would subsist as long as the jury system ‘their palladium remains sacred and inviolate’. 

 

The long-established rule that it is always the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt was firmly laid down by the House of Lords in 1935.  In words which have since been frequently repeated, Lord Thankerton said:

 

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defence of insanity and also as to any statutory exceptions.”

 

The object and purpose of the English criminal trial was not to ascertain the truth: it was not an enquiry to determine what had occurred.  Its concern was to make a finding whether the Crown had proved the case against the accused, a very different matter.  In such a procedure the Judge played a relatively passive role.  The Judge’s task was to direct the jury on the law, rule on evidence and sum up the facts but it was the jury, through its verdict, which decided those facts.  Witnesses gave their evidence orally in answer to questions.  Each answer was open to immediate objection as to admissibility if the opposing side thought it infringed the rules of evidence.  Witnesses were subject to cross-examination.  In accordance with the accusatorial character of the ‘fair trial’ procedure the accused had a right not to be questioned. 

 

Rules of evidence had been developed on the basis that the trial was concerned only with proof of guilt.  Such were the rules of total exclusion of confessions or admissions when not voluntarily made: such also was the rule against hearsay. 

 

Circumstances were beginning to press upon the structure of the criminal justice system.  Even by 1949 certain Australian states had ceased to require jury unanimity in the case of certain non-capital offences.

 

Of greater significance was the ever increasing volume of offences which avoided the complexity of the jury trial by being tried summarily.  Summary offences were statutory offences which were prosecuted before Justices of the Peace.  They were described by Dixon in 1930 as ‘being disposed of in a manner adopted by the legislature as expedient for the enforcement of certain statutory regulations with respect to the quiet and good order of society’.  And although Section 80 of the Constitution provided that ‘the trial or indictment of any offence against any law of the Commonwealth shall be by jury’, it had been held by the High Court over the powerful dissent of Dixon and Evatt, that this did not prevent the Commonwealth from determining whether any particular offence should be indictable or summary.  By 1935, 94% of persons going to prison in Australia had been tried summarily and offences of increasing gravity were subject to summary procedures.  These new statutory offences gave rise to a problem of criminal responsibility.  Most frequently nothing was said in the statute about the mental state required on the part of the offender – whether that of intention, recklessness or some other state of mind.  In the case of the general offences the common law required an intent to do the act in order to constitute the offence.  The question arose – what mental element, if any, was to be imported into statutory offences?  This was an important matter and, in 1941, in the case of Proudman v Dayman, Dixon said in relation to it:

 

“If the purpose of the Statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is to be administered.  But other considerations arise where, in matters of policy, of health, of safety or the like, the legislature adopts penal measures in order to cast on the individual responsibility for so ordering his affairs that the general welfare will not be prejudiced … but although it has been said that in construing a modern Statute a presumption as to mens rea does not exist … it is probably still true to say that, unless from the words context, subject matter or general nature of the enactment some reason to the contrary appears, you are to treat honest and reasonable mistake as a ground of exculpation.”

 

The general criminal offences continued to be tried by the traditional method of Judge and jury.  In those days legal aid was very restricted.  Under the Victorian Poor Persons’ Legal Assistance Act 1928 the services of the Public Solicitor were available in criminal cases but to qualify for this the accused had to be very poor indeed.

 

In the general criminal law itself Australian law had only just digested the defence of necessity to the crime of abortion.  This defence had been allowed in England in the case of R v Bourne (1937).  Even so it was a very restricted defence.  Dr Bourne, a respected English gynaecologist, had openly admitted to having terminated the pregnancy of a fourteen year-old girl.  The girl had been shockingly raped by soldiers.  The doctor faced considerable risks – a conviction and imprisonment.  His defence was that the abortion was necessary to preserve the physical and mental health of the mother.  Bourne was acquitted.  The defence in law was upheld that where a miscarriage was procured by a qualified medical practitioner, the prosecution had to prove beyond reasonable doubt that the act was not done in good faith for the purpose only of preserving the life of the mother or saving her from becoming a physical or mental wreck.*

 

At that time suicide was also a crime.  It could not of course be enforced against the offender but it had long given rise to forfeiture of the offender’s property.  It was not until 1870 in England that this was done away with.  At common law, suicide was treated as self-murder and, as a consequence, the instigator of a suicide was a principal in the ‘second degree’ to murder if present and an accessory before the fact if he was absent.

 

Homosexuality between consenting adults, even in private, was a criminal offence.  The Wolfenden Committee in the United Kingdom established to inquire into homosexual offences and prostitution reported in 1957 and it was only in the years after that, that these offences were modified. 

 

All of these areas of the criminal law were to give rise to great debate in the years to come.  They involved the important issue as to the extent to which the criminal law should seek to extend into matters of personal morality. 

 

In 1949 the death penalty still existed in all Australian States other than Queensland.  In Victoria it was mandatory in the case of murder.  And it was sometimes carried into effect.  In 1950 Jean Lee, Robert Clayton and Norman Andrews were hanged for the brutal murder, by strangulation, of the bookmaker Kent.  But the tendency was against capital punishment and in Victoria the mandatory sentence for murder would usually be commuted by the Executive Council.  ‘The average number of annual executions in Australia from 1861-1880 was nine; from 1881-1900, six; from 1901-1910, four; 1911-1920, two; 1921-1930, two; 1931-1940, one.’  Imprisonment was the primary punishment.  It had become less severe since the beginning of the century.  At that time terms of five to seven years were routinely imposed.  By 1949, such a period of imprisonment, whilst not uncommon, was reserved for the most serious offences.  Old relics still remained.  The Court could direct a prisoner to be kept in irons for any part of his sentence not excluding the first three years of imprisonment in the case of felonies of violence: Section 511 of the Victorian Crimes Act 1928.  Also, a prisoner could be kept in solitary confinement but, except in South Australia this was no longer resorted to as part of the discipline. 

 

Indeterminate sentences were administered by a Board which could release prisoners on parole. 

 

Flogging could still be imposed.  It would usually be limited to five to ten blows and was administered to the back by the cat-o-nine tails.  But flogging had become infrequent.  It was reserved for very serious offences of violence.  In 1957, William John O’Meally and John Henry Taylor were each given twelve strokes for wounding a warder during an attempted escape from Pentridge.  The birch was reserved for juveniles. 

 

Matrimonial Law

The principles of matrimonial law were even more fixed than those in other areas.  They did not derive from Protestant individualism but from an older Christian medieval tradition.  English matrimonial law had been formulated by the ecclesiastical Courts. 

 

The patriarchal family, the subjection of women and rigid sexual mores were in conflict with the egalitarianism and individualism of Enlightenment ideals.  But the inconsistency, to a greater of less degree, lasted in the law throughout the century.

 

At common law the wife’s personal property vested absolutely in the husband on marriage.  Freehold property came within his exclusive power and control.  If the wife were to predecease the husband he was entitled to the land during her life.  The wife could not make a valid contract.  During the seventeenth and eighteenth centuries Chancery developed a doctrine whereby property could be settled on trustees for a woman’s exclusive enjoyment.  It usually included a restraint on anticipation preventing her from disposing of the settled income. 

 

In substance, so far as property and contract were concerned, the disabilities suffered by the married women were put an end to by the Married Woman’s Property Act of 1882.  That legislation had been adopted in all Australian States. 

 

In 1949 divorce could only be obtained upon proof that the other spouse was a ‘guilty’ party.  In allowing matrimonial relief the law was still preoccupied, as it had been both before and since the first English Matrimonial Causes Act of 1857, with the central roles of ‘sin’ and ‘offence’.  To obtain a divorce there had to be a matrimonial offence such as adultery, desertion, habitual drunkenness with aggravating circumstances, attempted murder and repeated assault.  In Victoria, a wife had to support a charge of adultery with aggravating circumstances as that the adultery had been repeated or had taken place in the matrimonial home.  A single act of cruelty against the wife would not be sufficient. 

 

Relief would be refused if the petitioner had condoned the offence or connived at it.  The fact that the parties both wanted a divorce and that the marriage had irretrievably broken down was immaterial.  Collusion was a ground for denying relief and was regarded most seriously.  As late as 1954, as a student, I had written a Note on collusion for the Melbourne University Law magazine.  As I pointed out in that note, on one view of the law, any agreement between the parties providing for the initiation of the suit or its conduct would constitute collusion and result in a denial of relief. 

 

Perhaps nothing more clearly reveals the change in the law between then and now than the Family Law Act 1975.  It is evident that it proceeds upon quite different premises and values from the family law of the Victorian era. 

 

Why the Common Law System could not cope 

The question remains why it is said that the common law could not, as it had in the past, adapt to social change.  Why, that is to say, was legislation necessary to supplant and not merely modify judicial development of the law?

 

The common law had evolved by judicial precedent through a process of applying to the facts of the case in hand the rule deduced from an earlier decision or course of decisions each of which had itself been decided by a similar process.  The first step in that process was to determine whether the case before it was analogous to a course of decisions previously decided.  The common similarity of those decisions would enable the principle which they embodied to be deduced by a process of generalisation.

 

It is at this point in the process that the Courts, especially the higher Courts whose decisions are authoritative, could develop the law.  No set of facts are ever completely the same.  Analogical reasoning is not a closed system.  It allows scope for judgement whether the facts of the case in hand are similar to or distinguishable from those in previous decisions.  A judgement on that would depend upon what facts are material in the decisions to be compared.

 

The question what facts are material is not conclusively determined by what the earlier court has said about them although a statement at all specific by a higher court will have almost commanding authority upon courts low in the hierarchy.  But within limits it is open to a later court, especially if a higher court, properly applying the logic of analogies to hold that the facts in the case before it are not analogous; that the material facts are not the same and that the principle derived from the course of earlier decisions and as enunciated in them, is not applicable.

 

This was the gap in the dyke through which the common law was able to adapt to social change.  Adjustment to the law could be made in this way, within the limits of analogical logic as controlled by the doctrine of precedent without jeopardising the predictability and certainty that doctrine was intended to achieve. *

 

It is though implicit in what I have been saying that logic and the doctrine of precedent do impose limits.

 

The process requires a point of reference to which the question of analogy and dissimilarity is referred.  If suppose we need to know whether two watering cans are personalty the fact one is red and the other blue has no relevance to that reference point but it may be otherwise if the reference is to the aesthetic effect of the watering cans when placed in a garden.  If our point of reference is the duty of care owed by manufacturers for injuries caused by manufactured goods, there is no way that the fact the bottle contained a snail in one case and some other noxious creature in the other could be material to liability.  It is the point of reference which imposes logical limits upon the analogical process.  It is that which determines what facts are material and what are irrelevant.

 

The significance of the values and ultimate principles set out in the earlier part of the essay is precisely this: that those values and principles were the final points of reference in the process of analogical reasoning by the common law method during the classical period.  They formed the base from which a superstructure of sub-principles or rules, depending upon their generality, was erected.  Those rules would themselves form a point of reference for future decisions but the ultimate principles I have mentioned imposed an outer perimeter.

 

What had been said in earlier decisions as to the materiality of the facts, whilst not conclusive, could not be disregarded and this also qualified the freedom of later courts to deploy their own analysis to draw or reject an analogy.  If the earlier decision was that of a court of high authority, such as the House of Lords, statements by it, even if dicta, could be compelling even though the later court thought those statements or the decision itself out of accord with principle. *  It is true that later courts would endeavour to treat statements by earlier authorities which were thought to accord with principle and justice with respect, and disregard – possibly as obiter dicta – earlier views which did not appear to agree with principle or which it thought produced injustice.

 

We can follow this discussion through in the case of manufacturer and representor liability.  In Donohue v Stevenson the majority of Judges thought that the fact no contract subsisted between the manufacturer of the ginger beer and the consumer, to be immaterial.  They were prepared to reject earlier decisions that the existence of a contract was essential to a duty of care. Donohue v Stevenson itself became part of the pool of authority – itself very high authority of course – from which further generalisations would be made.  What it decided was that liability was not restricted in the case of product liability by contract.  Both of these principles were conformable with the value of individual responsibility underpinning the common law.

 

Questions arose whether it was a material fact in Donohue that it was concerned with conduct – the manufacture and distribution of impure ginger beer – or whether the rule which may be derived from it applied equally to statements so as to give rise to liability where the statements were negligently made. 

 

In 1951, in Candler v Crane, Christmas & Co (1951) 2 KB 164, an accountant had been employed to prepare the accounts of a company.  The accountant was employed by the company itself.  He knew that the accounts were to be shown to a man who was thinking of investing money in the company.  On the faith of the accounts, the man invested £2,000 and lost all of it.  The Judge at first instance found that the accountant had been extremely careless but he dismissed the action because, in the absence of fraud, there was in his view no liability.  In particular, there was no duty of care owed.  In the Court of Appeal the majority were of the same view that liability for negligence did not extend to carelessly made statements whether oral or in writing.  Donohue had, in the view of the majority, left the matter unaffected.  And so it was decided that it was material to the decision in Donohue and the rule which it enunciated that it was negligent conduct. 

 

Fourteen years later, the question came before the House of Lords in Hedley Byrne & Co  v Hellier & Parkers Limited (1964) AC 465.  The House of Lords laid down that liability for negligence applied to negligent misstatements.  In effect, the House decided, contrary to the earlier Court of Appeal decision, that the fact the negligence related to statements as distinct from conduct was immaterial and that Donohue was not restricted to conduct. 

 

In this way the law of negligence has moved from contractual supply of defective goods, to negligent manufacture of products, to negligent statements by professional accountants , solicitors and the like. 

 

But note that this extension was all within the bounds of negligence.  It would  not have been possible for the common law simply to jettison fault.  No court could consistently with any view of common law liability have said that manufacturers would be liable for harm done by their products irrespective of fault. 

 

Therefore once community values had changed so far in favour of the need to protect consumers and away from the value of individual responsibility as to require that they be compensated for losses, even in the absence of identifiable fault, it was clear that a change had to be brought about other than through the common law system.  If there had been merely a change in social conditions (as distinct from values) the common law could, through the doctrine of precedent, have worked out new exemplifications of its basic principles.  It would have been possible for the common law to have gone a long way in that direction.  And indeed intelligent and progressive judges have done so.  But it was not just changed social circumstances that were at stake.  There was a change in social values and thus in the principles which underlay the common law.

 

The common law method enabled a coherent system of sub-principles and rules to evolve in contract, civil liability, and criminal liability but that was as far as the method would permit the law to evolve.*  The House of Lords decision in Read v Lyons (1947) illustrates both the binding character of precedent and the limits which the ultimate principles I have mentioned, impose.  *

 

The difficulty confronting the common law in determining whether to maintain an ancient but possibly anomalous exception to an evolving general principle is illustrated by the decision of the House of Lords in Searle v Wallbank.*  The old common law rule was that the owner and occupier of land was not liable for negligence in allowing cattle to escape from his property on to the highway which then caused injury to road users.  On the face of it, it would seem Lord Atkin’s ‘neighbour’ principle in Donohue – a duty of care is owed whenever I ought reasonably to have contemplated a person being  harmed by my actions or omissions – should extend to straying animals, all the more so in an age of fast moving vehicles.  Nevertheless, the House of Lords reaffirmed the ‘straying animals’ exception.  The High Court followed Searle v Wallbank in Stage Government Insurance Comm. V Trigwell*

 

It was not just the precedential weight of the House of Lords decision in Searle v Wallbank and the long line of decisions it followed which determined the majority decision in the High Court but the difficulty in making the correct adjustment between landowners and highway users which it thought would arise from a cessation of the common law rule.  In Trigwell Mason J, emphasised that “the Court is neither a legislature or a law reform agency … The Court’s facilities, techniques and procedures are not adapted to legislative functions…”*

 

Perhaps the only leading Judge in the English common law world who attempted to meet these changes by using common law methods during this period was Lord Denning.  He failed.  He failed because his attempt required him to stretch the analogical processes of the doctrine of precedent beyond allowable limits.  It was those processes which conclusively defined the outer limits of judicial law making.  Those limits had much elasticity but beyond them the exercise of the judicial function could no longer be justified.

 

In many instances, as for example, in Lord Denning’s development of promissory estoppel he was applying legalism in a progressive way: similarly with his attempt to curb exemption clauses.  But in other instances this was not so.  When, for example, he sought to establish the deserted wife’s occupation of the matrimonial home as a proprietary interest he may have been giving effect to current community values but it was evident he was no longer applying the doctrine of precedent but benevolently manipulating it.  He had thereby entered a field for which, as an appointed Judge, no matter how eminent, he could claim no legitimacy.* 

 

Changes of the kind in question could only be made by legislation.  The supremacy of Parliament was established in 1688.  Thereafter properly authenticated Statutes could not be questioned.  Statutes superseded the Common Law.  Statutes had in fact been regarded in that way long before 1688.  It was a long time since Chief Justice Hengham could, in the thirteenth century, interrupt Counsel to say, ‘Don’t tell us what the Statute means.  We made it!’.  Coke’s comments in Bonham’s case that the Courts could ‘control’ statutes would have been regarded at heterodox.  Indeed Willes, J made that clear in 1871.*  But to state the relationship between statutes and the common law in this way, whilst accurate, is incomplete.  There was then no antagonism between the common law and Parliament.  Judges and Parliament had been united in the long struggle against the Crown.  At no time was it suggested parliamentary supremacy would exclude judicial law making altogether.  As Holdsworth said, “it was only in England that the powers of Parliament had come to be regarded as the main security for the supremacy of the law.  For it is only in England that the lawyers, by freely admitting the legislative supremacy of Parliament had gained the support of Parliament and the nation for the medieval doctrine of the supremacy of law”.*

 

The Revolution confirmed the supremacy of legislation but it also confirmed that the Judges had exclusive authority to interpret statutes.  The Judges presumed that Parliament would intend that a statute should be construed as harmonising with the common law.  The rule of statutory interpretation that Parliament did not intend to overrule the common law was based on that assumption. 

 

Accordingly, in the common law world legislation played a part – filling a lacuna as in the case of the Wrongs Act conferring a right of action on the widow or dependent in the event of the breadwinner’s death or abolishing the medieval immunities attaching to the Crown.  This was ‘legislation’ within the common law system.  In the field of contract, it was possible for the House of Lords to modify the doctrine of frustration that the loss lay where it fell.  This did not jeopardise the principle that persons were bound by their promises.  But it required the Trade Practices Act to make persons liable for statutorily imposed warranties and to exclude the operation of any contrary agreement by the parties.  Their promises could not qualify what had been statutorily prescribed, even though the prescriptions were called ‘warranties’ in the legislation and were thus ostensibly contractual.  It was possible, within the common law system, to extend the remedies for harsh and unconscionable contracts by the notion of oppression and, conceivably, in the case of leasehold, by extending the equitable remedy for relief against forfeiture.  But it would not have been possible to evolve a judicially created rule barring ejectment where it would impose great hardship upon a tenant.  When during the war that became necessary it had to be provided for in special landlord and tenant legislation.  Similarly, in the case of land use, it was possible consistently with common law reasoning for the tort of nuisance to be given new and extended application.  It was however confined to neighbouring landowners.  It would not have been possible for the Courts to have mandated by injunction a town planning scheme providing for land use for a given section of the public living within a particular area.  And when one had a fundamental change in community values as in the case of family, divorce, and the position of women in society, the only recourse was to introduce the Family Law Act 1975. 

 

Accordingly, the doctrine of the supremacy of Parliament had by the nineteenth and twentieth centuries imposed a barrier against any judicial law making which departed from the ultimate principles of the common law. 

 

Nowadays, and for the future, the law will be statutory.  The change is not merely quantitative.  Statutes no longer draw upon the common law.  They increasingly stand alone, backed up by regulations and administrative guidelines.  Judge-made developments will be ancillary.  In this it is almost the reverse of the common law system where statutes were ancillary and gap-filling. 

 

The establishment of Law Reform Agencies was a logical and necessary development of this.*

 

An historical change has occurred – none the less so because the process has been an elongated ‘whimper’. 

 

October 1994

 ----------------------------------------------------------------------------------------------------------------------------------------



Aspects of the adversarial approach to dispute settlement

 

Aside from negotiation, there are two broad approaches to the settlement of disputes – the adversarial and the mediatory. The adversarial approach involves the disputing parties presenting their cases to an impartial third person, the Judge, who will decide the dispute. The dispute is decided. Unlike the successful outcome of mediation the dispute is not resolved or at least if that occurs it is incidental. The decision reached by the Judge is enforced by state institutions

 

The distinctive characteristic of the modern adversarial approach is that the dispute is decided according to law, that is by a pre-existing body of rules, the application of which to the dispute is determined by the Judge-Jury umpire.

 

The high-water mark of the adversarial approach in common and civil law countries and extended colonially to much of the non-western world, was reached during the 19th and first half of the 20th centuries.

 

The approach is peculiarly western. It derives from two characteristics of European political structure and social ideals — the strong centralised nation state and individualism.

 

The interaction of these two meant that the individual needed the protection of law from the arbitrary exercise of power by the strong state. Hence the concept of the fair trial and due process which evolved first in England and then on the continent but in each case only after the arrival of the nation state. Its essential features are an impartial court, an open hearing, entitlement to legal representation, the right to test opposing evidence by cross examination, the onus of proof on the prosecution, a standard of proof beyond reasonable doubt, exclusion of self-incriminatory evidence and evidence obtained by coercion, jury unanimity where a jury is the tribunal of fact and a reasoned decision challengeable on appeal.

 

It is sometimes said that the continental civil law trial, in contrast with the Anglo- American common law, is inquisitorial. This exaggerates the difference.  Since the incorporation of common law characteristics following the French Revolution the civil law trial has been predominantly adversarial. There are two important remnant inquisitorial elements which I should mention. The common law draws a hard distinction between the investigative phase and trial. On the Continent it is more a continuum with an examining judge – the judicial arm – assuming control of the investigation after charge and before trial. Secondly, the common law judge plays a passive, umpire-like role. The judge/jury is concerned only to determine whether the prosecution or plaintiff has proved the case beyond reasonable doubt or some other given standard of proof. The French, German or Italian judge will be actively involved in the hearing and will take a leading role in the questioning of witnesses. These differences are important but do not affect the general adversarial character, in the sense I have described it, of the continental trial.

 

Against the background of individualism and its guarantee of property and contract rights, civil litigation was equally adversarial. Disputes comprised claim and denial between individuals. Individual responsibility was the underlying principle and measure of liability – hence proof of fault, caveat emptor, let the loss lie where it falls. It was never contemplated that a section of the public would, as such, have a dispute-interest. Consumer protection was unknown. Only in 1932 did an action by the consumer against a manufacturer become allowable. A broad public interest claim to protect the environment was equally unthinkable. At most adjoining occupiers could dispute between themselves through the tort of nuisance or other private cause of action. Civil litigation was thus curial combat between individuals. Indeed the rules of standing and class actions were quite deliberately designed to limit litigation to individuals.

 

The key to this adversarial approach remained the application of a pre-existing body of law by a judge independent of the parties and the state. It was this body of law which defined the permitted ambit of the dispute. All disputes were reduced to issues.  It was these issues which had to be decided. Only facts relevant to those issues were admissible. In a very real sense it was only those facts which were allowed to be disputed. But what determined the issues? These were determined by application to the facts as alleged or denied of the external, pre-existing body of law which I have mentioned. Disputes were about and, so far as the state was concerned, could only be about rights and obligations under that body of law.

 

This represents a singular difference from the mediatory approach typical of pre-state societies. In say a dispute over bride price in Papua New Guinea, the mediation by luluai, tul tul or more traditional mediators may range over past grudges, current land disputes between kinship groups and expected future relations with other groups. The initial grievance over the bride price is not treated as determinative nor is it regarded as an isolated episode in the mediatory process. Mediation is never restricted to issues and even less to any notions of relevance. And the reason for this is that the whole approach is directed to repairing the relationship between the disputing groups and preventing the payback or renvoi of violence which might result if the mediation fails. Do not misunderstand me. The mediatory environment in these societies is not rule-less. Customary rules can be quite detailed. But the process is not directed to a decision whether the customary rules concerning the payment or recovery of the bride price have or have not been broken. It is whether the relationship can be restored or at least rendered peaceful.

 

It became evident from about the middle of the last century that the western adversarial model was beginning to break down and although it remains central as a mode of trial, the rest of this address will be concerned to touch upon some of the reasons for this and some of the modifications and alternatives which have been introduced.

 

But first lest we forget. It was through the adversarial approach that the individual pitted against the state in a disputed criminal charge, could rely upon an independent judge and an external body of rules to which the state itself was subject. And it was in the course of adversarial criminal trials that those detailed rules usually thought necessary for fairness and implicit in the concept of a fair trial were laid down. This was the unique contribution of the western legal tradition of which the adversarial approach was an integral part.

 

Since the end of the war there has been an explosion of criminal and civil litigation. This has imposed strains upon the traditional approach – lengthy trials, congested lists and mountainous costs. Legal Aid, rudimentary, if it existed at all before the war, has become an accepted part of the system of justice.

 

In the civil sphere motor car and industrial accidents were initially responsible. By the 1940’s compulsory third party insurance had been required in most Australian States. Workers compensation had been introduced in 1909.Class-influenced inhibitions on worker industrial accident claims like the doctrine of common employment had been abolished. Insurance – public liability and medical – became critical to modern civil litigation.  The need for insurance reflects a stricter standard of liability.  Medical and hospital negligence actions, once a rarity, have become common-place.

 

Importantly, harms were no longer a matter between individual victim and wrongdoer. The mass distribution of goods and industrial activity meant that large sections of the public could be injured by wrongs for which they would seek redress.

 

In the criminal law there was also a change in the nature of the disputes. The adversarial criminal trial was once reserved for murder, robbery, rape, assault, larceny and the like. Today the interests protected by the criminal law extend beyond public order and personal security. The criminal law is directed to protection of sections of the public from company fraud and director malpractice (the first Companies Act in England was enacted as recently as 1862); fraud on the revenue as for example bottom of the harbour type offences (income tax was only introduced into Australia in 1915); anti-competitive behaviour and deceptive and misleading conduct (The Trade Practices Act was enacted in 1975).

 

Prosecutions for offences of this kind, new in type and scale, imposed strains upon the adversarial approach. They were not related to a simple issue. Typically they would extend to numerous transactions over a long period involving large numbers of documents which needed not only to be individually understood but pieced together. The jury system does not work well in cases of this kind. Its genius lies in dealing with simple issues and in which it can modify the technical rigidities of the law with the community’s sense of justice.

 

As you see then, not only was there an increase in the quantity of disputes, important in itself to the feasibility of the adversarial approach, but the nature of disputes had altered as a result of technological change and the recognition of wider public interests.

 

Faced with this situation the adversarial approach has been modified.

 

In some instances jury trial has been replaced by Judge alone and, in the case of serious fraud charges, provision has been made for the prosecution and defence to exchange case statements and to require the defence to specify pre-trial what facts it will admit and what documents it intends objecting to and why.

 

In essence therefore procedures, and in some instances the mode of trial, conventionally attaching to the adversarial criminal process have been curtailed or eliminated. This is not though just because of the length and cost of commercial-type trials. It is also because the balance of power between state and subject – sometimes a large corporation – is not so disproportionately in favour of the state.

 

In the civil sphere the rules relating to representative or class actions have been broadened to extend to public interest claims and so enable sections of the public to recover for multiple wrongs.

 

Suggestions have been made for a more inquisitorial approach at trial, with the Judge playing a more active, managerial, role along the lines of the continental trial system but generally these have not been adopted.

 

Apart from formal modifications there has been one less formalised but perhaps more important change in the criminal field.

 

Plea-bargaining involves the prosecution withdrawing charges, substituting a reduced charge or conferring some other benefit upon the accused in return for a plea of guilty. Negotiations are carried out by prosecution and defence lawyers. This is inherently  non-adversarial. Nevertheless, taken in isolation a plea-bargain does not bear upon the overall adversarial character of the criminal justice system.  The defence may genuinely think an accused could be found guilty of a lesser offence and the prosecution may have real doubts about whether a conviction will be obtained on the more serious charge. It may be said that plea-bargaining is merely a convenient way of facilitating the trial process and does no injustice to the defendant if properly advised, and who may have gone to prison had a reduced charge not been secured.

 

However, where the adversarial trial process is unable to cope without plea-bargaining occurring frequently and regularly, so that plea-bargaining becomes integral to the system, questions do arise. In the United States most criminal charges are disposed of by the plea-bargain. This suggests a breakdown in the adversarial trial process. (In America an important factor is that entrenched constitutional guarantees of due process and the like prevent modification of the adversarial process – except in the case of military commissions). In Australia, plea-bargaining is substantially less. One estimate – and it is only that—is that 30 to 40 % of cases here are disposed of by plea-bargaining.

 

The Guidelines of the Victorian Director of Public Prosecutions accept that plea-bargaining can be consistent with justice but the proposed charges must ‘bear a reasonable relationship to the nature of the criminal conduct of the accused’. It may be said if this be the case and bargaining is confined to negotiations between lawyers – that is not involving the Judge – it is acceptable, but, even if that be so, it does not detract from the position relevant to this paper that plea-bargaining represents a substantial qualification upon the adversarial approach.

 

In any event, plea-bargaining becomes much more problematic where the Judge is involved in the ‘bargain’ as by giving an indication or -- if you will allow me to resort to the vernacular, – a ‘quote’ of the probable sentence he or she would impose upon conviction, in order to facilitate a ‘bargain’ being arrived at. The dangers are obvious.  The involvement of the Judge has been frowned upon, especially after some highly critical ex tempore remarks by Sir Garfield Barwick during argument  on a High Court appeal. Nevertheless, frowned upon or not, it continues. In Victoria, at the contest mention, a preliminary procedure where prosecution and defence counsel appear before a Magistrate to define and narrow the issues and identify whether a plea of guilty might be made, some magistrates not only indicate their view on sentence but actively encourage negotiations. On the 16th of last month, the Victorian Attorney-General asked the Sentence Advisory Council in that State to examine – and I quote from the Press Release – “a sentence indication scheme in which before a trial commences the Judge would give a defendant a broad indication of the type of sentence he or she would receive if they pleaded guilty.” In my view, there is no way such an indication could be given without serious risk of injustice. The Judge could only give a ‘quote’ on the depositions in advance of evidence at trial, evidence on sentence or the plea in mitigation. Perhaps the fact such an inquiry has been instituted is itself evidence of a breakdown in the adversarial trial process.

 

Hitherto, I have been describing modifications of the adversarial approach which involve no challenge to the premises underlying it. That is, that legal disputes are engaged in between individuals and between the individual and the State – founded upon a generally Thatcherite view that there is no such thing as a society but only collections of individuals.

 

Relationships in such a community are based on property and contract or are individualised by incorporation. Relationships between individuals inter se are economic. Only the family may be suggested as an exception. The relationship of individuals to the state in such a community is essentially contractual. Under the Lockean social contract, individuals vest public power in the state which in return undertakes to preserve their rights and maintain order.

 

Thus the adversarial approach was not concerned with organic relationships nor with disputes jeopardising them. H.B.Higgins ‘new province of law and order’ in the industrial field was a rare attempt to extend the adversarial approach to these. Accordingly, solutions to a dispute requiring the establishing or repairing of relationships were simply not addressed. The remainder of this Paper will relate to this aspect and to instances where solutions to relationship-disputes have led to a shift from adversarial to mediatory mechanisms.

 

The criminal justice system recognizes no direct relationship between victim and offender. Each has of course a relationship with the state – the former as complainant and witness at trial and the latter as defendant.  The victim, in order to recover compensation,  has to institute separate civil proceedings . Historically, the rigid exclusion of the victim from the punitive process was an incident of the long struggle by the emerging state to extinguish the blood feud. Today this is recognized as too arbitrary. Provision has been made for awards of compensation against the convicted offender, for receiving victim impact statements on sentence and for taking evidence from victims on closed circuit television in certain circumstances.

 

But the most radical change in this area, and the one which concerns us, involving a departure from the adversarial approach is what has been described as restorative justice.  Those of you who saw David Williamson’s Face to Face a few years ago will have some idea of this. It is hoped that by meeting directly with the victim, the offender will come to realise the harm and injury caused and the victim some of the underlying motives and emotions which led to the defendant’s criminal behaviour. Out of this may come, it is hoped, a more socially productive result than if the offender is sent to gaol, suffers the stigma of conviction and the brutalisation which gaol entails.

 

Restorative justice has been available for some years but mostly restricted to juvenile offenders.  Recently it has been extended or proposed to be extended to young adults: the Australian Capital Territory in 2006;  in New South Wales 17 to 25 year olds are covered from  this month and in Victoria proposals are under consideration to enable 25 year olds and under to be included in the program.

 

Typically, it applies pre-sentence to offenders convicted of theft or property offences. Victoria, for example, excludes homicide, sex offences and offences involving serious violence. The process remains under the control of the Court which will consider at the time of sentence a proposal for restorative justice by the offender’s counsel and even by the police and will adjourn sentence to enable a conference to be held. Any reparation agreement subsequently arrived at is taken into account on sentence and may be embodied in the sentence. Sentence may be deferred for up to 6 months. The program is managed by an official trained in mediatory work – the convenor—who invites the victim to take part in a conference with the offender. If the victim refuses, that is an end of the matter. The conference is usually a one off-affair but is preceded by fairly intense preparation. In addition to the offender, the victim and their families, the offender’s legal representative and the police will usually attend. The agreement may take a variety of forms involving, in addition to an apology, the offender making a payment of compensation or providing work by way of restitution. Usually, the whole matter is over within a much shorter time than a gaol term or probation. Hopefully, the victim will have received some satisfaction and the community spared a future offender.

 

Let me turn to family law where in the last thirty years there has been a pronounced move to conciliation and mediation. To some extent this is due to changed values. Before the Family Law Act of 1975 and certainly before Barwick’s Matrimonial Causes Act of 1959, divorce, custody and the like all hinged on the concept of the matrimonial offence. The husband could obtain a decree of divorce if, for example, he proved his wife committed an act of adultery as could the wife provided she proved a repeated act of adultery on the part of the husband. Desertion, cruelty and the like were other matrimonial offences which were alleged or defended in adversarial contest. The offence had to be proved. Collusion was illegal. But increasingly it was seen that a different approach was necessary and that mechanisms, especially for custody, were needed to restore relationships or handle their breakdown. Counsellors had been provided for in the Family Law Act. Very recently the legislation has required the parties to seek mediation before instituting proceedings. Within the Family Court itself the Court at Parramatta adopted a model in which the Judge adopts a pro-active role in a discussion-type proceeding which have become more generally adopted. You will gather some idea of the trend to mediation when I tell you that the Family Mediation Centre in Victoria, one of three mediation bodies in that State, carried out more than 1200 mediations last year many—indeed most—on referral from the Family Court. And the proposed 65 Family Relationship Centres announced by the government last week tend in the same direction.

 

There has, more surprisingly perhaps, been a similar turn to mediation in the commercial area. Mediation is seen as a means of limiting cost. More importantly, it enables long term commercial relationships to be maintained. A long-term contract cannot by its nature cover, at all specifically, future contingencies. What neither party wants is for the relationship to be dissolved . Arbitration may be provided for but that is too adversarial and too tied to legal solutions. General ‘reasonableness’ provisions – a ‘good faith ‘ clause is particularly favoured by Japanese investors – in effect enjoin negotiation. And so parties look to mediation.

 

Mediation Centres were established in Melbourne and Sydney and later in other capital cities . The Australian Commercial Disputes Centre in Sydney set up in 1988 has since dealt with hundreds of disputes embracing commercial transactions, partnership disputes, planning and environmental matters, building and construction, public liability and professional indemnity claims.

 

Trained mediators know that their role is to defuse the hostilities created between the parties during their prior dealings. Mediation opens up a variety of possibilities. The parties might re-adjust their relationship in a way which has nothing to do with the disputed contract as by re-negotiating the terms of some future contemplated agreement. This resembles the Camp David solution. Egypt wanted its territory in the Sinai returned. Begin refused to return to the previous position. And so, Egypt wanted all the land and Israel refused to return any. An adversarial settlement might have led to a division of the land, which would have satisfied neither country. As you know, the ultimate solution rested upon Israel’s wish for security so that it agreed to give Egypt sovereignty over all the land in return for Egypt agreeing to the de-militarising of the region.

 

Mediation occupies an increasing place in our system of justice and it will be evident from this address why I think that necessary. But mediation is not always successful and, in the event of failure, the law with its adversarial processes will be needed. Mediation is usually appropriate where there is or has been a personal relationship or at least a continuing one. More fundamentally, even where the relationship with which mediation deals is personal or continuing there may often be inequality of power between those in the relationship requiring legal controls.

 

John Greenwell

 

Address at the Annual Conference of the Independent Scholars Association of Australia, 13th October 2005

---------------------------------------------------------------------------------------------------------------------




*           From the Abbasid Caliphate (750 AD) authority in Islamic law devolved upon the jurists who replaced the Qadis or appointed Judges. Influenced by the newly discovered Greek logic, the jurists introduced the use of reason in the interpretation of both the Koran and the sunna, and permitted, within limits, ra’y, or, personal reasoning, in the development of doctrine. Qiyas or the use of analogies to ascertain a rule became permitted.

 

            The liberality of interpretation which this entailed was opposed – sometimes vehemently – as a departure from the Holy Word of God. The jurists became divided into four schools. Eventually, in the 10th century, these schools reached a compromise which involved putting an end to the further development of Islamic law by juristic processes. The ‘gates of ijtihad’ were, as it was said, finally closed.

 

            Jewish law may be said to have begun with the canonisation of the Torah in 445 BC by Ezra and Nehemiah. From the oral explanations of the Midrash in the synagogues a process of interpretation inevitably began but remained oral to distinguish it from scripture. The Oral law was gradually committed to writing. The recording of the oral law in the mishnah was unsuccessfully opposed by the Sadducees as desecrating the Torah. In the 2nd century Judah Hanasi sought to canonise the mishnah but his attempt to do this failed. In the 6th century scholars were entrusted with writing down the mishnah and gemarra and these evolved into the Talmud which governed Jewish law for centuries. Finally, in the 12th century the rabbis closed further evolution of the Babylonian Talmud.

 

            We see in this oversimplified description the continuing tension between text and interpretation, exegesis and the deployment of legal science.

 

            Church law in Europe was heavily influenced by legalism. It did not however face   the same difficulty as Judaism and Islam in reconciling the use of legal science with the sacred character of the text. Christianity never intended to override secular law. From the outset the separate spheres of God and Caesar were recognized, see, David and Brierley, Major Legal Systems in the World Today, 2nd edit.p.429. In the 12th century Gratian, a Bolognese monk collected all the laws of the church into a single work, A Concordance of Discordant Canons. It was the first comprehensive and systematic legal treatise in the West since Rome. The method was thoroughly legalistic. It was ‘systematic’ in the sense of breaking up the law into interrelated categories – divine Law, natural law, the law of the church, the law of Princes, custom etc. It was, without question, one of the major works in European legalism.

 

*           450 B.C. –27 B.C.

 

*           27B.C. - 284 A.D.

 

*           284A.D.–534A.D.

.

 

*           See The Origins of Western Legal Science, Harold J. Berman (1977) Harvard Law Review, p.894.

 

*           Science and Judicial Proceedings included in Jesting Pilate, Law Book Company (1965) p.13.

 

*           This proved particularly important in the long historical process of the common and civil law in subduing custom. Legalism eventually enabled formal law to supersede feudal law and local custom. In some cases this was done by substituting a legal rule found to be applicable and in others by formalising the customary rule, as in the common law, see Halsbury, Laws of England, 1st edit,Vol.10 p.28 and p.221; or, in the civil law, by the attempted codification of the coutumes, in France, or the formal reception of Roman Law in Germany. In English law, the process by which custom became formalised within the framework of legalism was described  in Goodwin v Robarts ((1875)L.R. 10 Ex. 76 affd. H.L. 1 A.C. 476) in relation to the law merchant: “ The law merchant… is… neither more nor less than the usages of merchants and traders in the different departments of trade, ratified by the decisions of Courts of law, which have adopted them as settled law, with a view to the interests of trade and public convenience … Courts of law giving effect to contracts in dealings of the parties will  assume that the latter have generally dealt with one another … of any custom or usage prevailing generally .. by this process, which was before usage only, and sanctioned by legal decision, has become engrafted upon, or incorporated into the common law, and thus be said to be part of it.” In Roman law the customs known as the maritime law of Rhodes were, by a similar process, adopted into law.

 

*           An interesting illustration of the intrusion of a different legal order into another order which is predominant, is that of bankruptcy in common law countries. Bankruptcy is an example of a regulatory element introduced into the predominant legalism of those countries. It is not merely that it is purely statutory – there is no common law of bankruptcy – but the implementation of the law, with official receivers and trustees in bankruptcy, exemplifies a regulatory legal order, See Halsbury,1st edit. Vol 2 p.4.

 

*           H. Mc Aleavy, Chinese Law in Introduction to Legal Systems, J. Duncan Derrett, Sweet and Maxwell, p.10.

 

*           see, infra, the essay Codes, Statutes and the Autonomy of Legalism.

 

*           The tradition of legalism before the revolution in Russia was weak but it was nonetheless the prevailing legal order, H.J. Berman, Justice in the U.S.S.R, Harvard, p.268; David and Brierley, Major Legal systems in the world today, Stevens, p.152. After the Revolution, Soviet law was highly regulatory. Economic activity after 1928 was governed by the Plan. It was thus necessary that what were described as contracts should fit into its requirements. State Enterprises were subject to standardised conditions. If an enterprise declined to enter into contracts required of them by the Plan they could arbitrate the issue before the Arbitrazh. Ultimately, though, a contract would have to be entered into. There was no development of Soviet law independently of the state, see generally Berman, supra and W. Friedmann, Legal Theory, Stevens, p.257 et seq.

 

*           H.McAleavy Chinese Law.op.cit.p.105; W.F. J. Jenner, The Tyranny of History,p.137.

 

*           V.Sovani, The British Impact on India, The New Asia, Mentor, pp.111-113.

 

*           A Glossary and Chronology appear at the conclusion of this essay.

 

*           Schulz, History of Roman Legal Science, Oxford, p.286.

 

*           The power of the father.

 

*           De Zulueta, The Legacy of Rome, Oxford, The Science of Law, p.188.

 

*           The term ‘Jurists’ is used interchangeably with that of ‘Jurisconsult’ when we are speaking of the Republic.  The Jurisconsults were advisers.  Later in the Principate, Jurists came to refer also and mainly to writers and teachers.

 

*           This was to change and the change was important.  During the Principate, and especially the later Principate (and even more so during the Dominate) the jurists not only received salaries but were public officials in the Concilium of the Emperor.

 

*           On the downfall of the monarchy the kingly power was vested in the two consuls.  Like the royal power, the imperium of the consul was formally unlimited (except for certain religious matters vested in the pontifex maximus).  In theory therefore jurisdiction was always a function of the consular imperium but when a special jurisdictional magistracy - the praetorship - was created, the consuls ceased to have any concern with civil litigation and criminal jurisdiction was exercised on their behalf by the quaestors, Jolowicz, op.cit. pp.43-46.

 

*           The praetorship was established in 367 B.C. by the Leges Licinae Sextiae.  The new magistrate assumed responsibility for the judicial work of the counsuls, Jolowicz, op.cit. p.15.

 

*           The praetors had some legal knowledge.  Allen, Law in the Making, Oxford, 4th edit, p.159 expresses the view that the legal ignorance of the iudices has been exaggerated but Sawyer’s statement that “they needed a jurist to give authoritative advice or a responsa, to help them” seems clearly correct, see Sawyer, Law in Society, Oxford Clarendon Series, p.75.

 

*           The Licinian laws, see supra.

 

*           This did not however include military command.

 

*           Thus the Treaty of commerce between Rome and Carthage, 348 B.C.; the Samnite Wars (involving subjugation of the Latins and Central Italy), 343-266 B.C.; the conquest of Southern Italy including Tarentum, 281-275 B.C.; peace with Carthage involving the cession of Spain and acquisition of provinces in Macedonia and Greece, 148-146 B.C.; Africa, 147 B.C., Gallia Transalpina, 120 B.C., Gallia Cisalpina, 87 B.C., Pergamum in Asia Minor, 129 B.C. and Syria, 63 B.C.

 

*           “The strict theory of Roman law which remained throughout its history was that the ius civile was only for citizens, and, as there was originally no other law than the ius civile, the foreigner was both rightless and dutiless.  It was open to any Roman to seize him and his property as things without an owner and, on the other hand, there was no court in which he could be sued.  Whether there was ever a time at which practice was entirely in consonance with this theory may be doubted, but at any rate as soon as intercourse with other states became at all common and civilisation advanced, such a barbarous system could no longer be maintained … quite apart from special treaties, the foreigner was no longer treated as rightless; to treat him so would have been to put a stop to the possibility of commerce, and the commercial interests of Rome were growing.  We have seen that about 242 B.C. a special praetor was appointed to deal with disputes in which foreigners were engaged, and from our accounts there can be no doubt that the single praetor had been dealing with such cases as well as those in which citizens were involved for some time previously”.  Jolowicz, op.cit. p.100.

 

            “Peregrini could not employ the Roman law of procedure except by Treaty rights or fictitious actions, Buckland, Textbook of Roman Law, p.98… a long time elapsed before Roman law concerned itself with disputes simply ‘inter peregrinos’ at all.  But Roman law would, from the very first contact with peregini, be concerned with litigation between them and Roman citizens; and hence the treaties relating to ius commercium that were made.  But apart from such treaties, disputes might well arise between civies and peregini not covered by them.”  Gilbert, Res Judicatae Oct 1939, p.50.

 

*           The traditional explanation is that the praetor peregrinus was appointed for this purpose.  But Gilbert, supra, convincingly argues that the increasing presence of peregrini was not the reason for the appointment of the additional praetor but that his appointment was due more simply to the additional quantity of work.  It was then a natural administrative division for the praetor urbanus to deal with disputes between citizens and for the additional praetor to exercise jurisdiction involving foreigners.

 

*           It has been said that the legis actiones were abolished by the Lex Aebutia and by the later Leges Juliae.  The date of the former is uncertain but was around 149 B.C.  The Leges Juliae were enacted during the reign of Augustus.  Jolowicz explores this question very fully in his Historical Introduction to Roman Law.  He concludes that the formulary system “arose in courts where the Roman magistrate exercised jurisdiction over foreigners and his imperium was consequently untrammelled by any lex, either … in that of the praetor peregrinus at Rome, or those of the governors of the provinces”, Cambridge, 1931, pp.223-229.  In his view a more difficult question is how the formulary procedure came  to be extended from peregrini to citizens.  What happened, he believes, is that the Lex Aebuitia made the formulary procedure optional for citizens.  Later, the Leges Juliae did away with the Legis actiones altogether leaving the formula as the only available procedure.

 

*           Jolowicz, op. cit., p.201.

 

*           Sawyer, op. cit., p.75; see also Jolowicz, op. cit., p.202.

 

*           Jolowicz, op. cit., p.203.

 

*           The Legacy of Rome, The Science of Law, Oxford, de Zulueta, p.191.

 

*           Jolowicz, op. cit., p.416.

 

*           Gibbon has described the process as follows:

“But the most important source of Roman law was the edicts of the praetors.  As soon as the praetor ascended his tribunal, he announced by the voice of the crier, and afterwards inscribed on a white wall, the rules which he proposed to follow in the administration of justice.  It was not according to his caprice that the praetor framed his regulations.  The most distinguished lawyers of Rome were invited by the praetor to assist in drawing up this annual law, which, according to its principle, was only a declaration which this magistrate made to the public, to announce the manner in which he would judge, and to guard against every charge of partiality.  He was bound strictly to adhere to the letter and spirit of his first proclamation, according to the Cornelian Law, and he could make no change in a regulation once published.  It is a mistake to suppose that the praetors had the power of departing from the fundamental law, of the law of the Twelve Tables.  The people held them in such consideration, that the praetor rarely enacted laws contrary to their provision; but as some provisions were found inefficient … the praetors, still maintaining respect for the laws, endeavoured to bring them into accordance with the necessities of existing time, by such fictions as best suited the nature of the case.”*

 

            History of the Decline and Fall of the Roman Empire, Chap.23, p.375.

 

*           See Glossary for a description.

 

*           Jolowicz, op.cit., p.211.

 

*           Jolowicz, op.cit., p.255.

 

*           The restitutio in integrum was a praetorian remedy of reinstatement granted on equitable principles.

 

*           286 B.C.

 

*           Hunter, Historical Introduction to Roman Law, p.146.

 

*           The edict announced, “If it be alleged that fraud has been committed and there be no other remedy available on the facts, and the cause of action appears to be a just one, I will grant an action, provided that not more than a year has passed since the proceedings might have been begun”, Jolowicz, op.cit., p.204.

 

*           The Legacy of Rome, The Science of Law, Oxford, Zulueta, p.194.

 

*           History of Roman Legal Science, Oxford, p.41.

 

*

            op.cit., p. 94.  The Mucian order which was followed substantially by Gaius in his Institutes was in summary as follows:  Law of Inheritance, Law of Persons; Law of things and Law of Obligations.  Each of these general classifications was further subdivided.  Thus the Law of Obligations was divided between ex contractu and ex delicto.  The former included (a) the real contracts; (b) sale; (c) locatio conductio; (d) servitudes; (e) societas and perhaps mandatum.  The latter comprised iniuria, furtum and Lex Aquila.  See Glossary.

 

*           Schulz, op.cit., p.99.

 

*           Schulz, op.cit., p.101.

 

*           Schulz, op.cit., p.104.

 

*           Schulz, op.cit., p.107.

 

*           Kolbert, The Digest of Roman Law, Penguin Classics, p.27.

 

*           161 - 180.

 

*           Indeed he was supposedly paid twice the usual fees because of his great learning.  Kolbert, op.cit., p.29.

 

*           Kolbert, op.cit., p.29.

 

*           Jolowicz, op.cit., p.394.

 

*           See infra.

 

*           There is controversy as to the date.  See Kolbert who prefers 223, op.cit. p.31.

 

*           Gibbon describes the Praefectus Praetorio in the following terms:  “From the time at least of the Emperor Hadrian the Praefects of the Praetorian Guard are considered the first individuals next to the Emperor.  The Prefect was, from the nature of his function, the official who was nearest to the monarch; he was trusted because he was feared and the execution of the Emperor’s most important commands required a man of something more than military capacity.  This alter ego of the Emperor was the medium for executing rapidly issued injunctions for army organisation, and for the guidance of the civil service.  Jurisdiction, the most constant of the Emperor’s burdens and the framing of decrees, not unnaturally fell to his share, and hence the office, without losing its ostensibly military aspect, assumed more and more of a civil character.  This change, which began under Marcus Aurelius and Commodus, was finally achieved after the time of Septimius Severus; henceforth we find the first jurists of the empire, Papinian, Ulpian and Paulus - filling the praefecture.  It was probably about this period - the end of the second and beginning of the third century A.D. - that the constantly delegated jurisdiction of the Emperor resulted in the praefects becoming the Supreme Court of Appeal, in matters both civil and criminal, for the provincial world.  The growth of his power and parallel to that of the imperial council of legal advisers, of which the praefects were the presidents; and the importance of both presidents and council, originating with Hadrian, was due to that personal centralisation of authority, which the necessities of the defence of the empire had made independent, of a fixed constitution and even of a fixed capital.”  Gibbon, Decline and Fall of the Roman Empire, Appendix to Chapter II, Note 2.

 

*           Modestinus, a pupil of Ulpian, continued with some modest juridical work until 244 A.D.

 

*           Jolowicz, op.cit., p.418.

 

*           See Glossary for a description of the term.

 

*           See Glossary for definitions.

 

*           Jolowicz, op.cit, pp.421-422.

 

*           “Anyone who has the most elementary knowledge of Roman Law knows that the Romans hardly developed a general law of contract.  They thought in terms of particular contracts such as sale, hire or partnership, and those contracts were limited in number.  Although it was possible to make contracts which fell outside these typical figures, a deliberate effort was required; and indeed the Roman law of the ancient world never accepted the doctrine that any seriously intended promise, however lacking in form, was binding. “The Rational Strength of English Law, Hamlyn Lectures, F.H. Lawson, p.49.

 

*           Schulz, History of Roman Legal Science, p.112.

 

*           It performed a similar function to the English doctrine of precedent with the important difference that the authority of precedent was laid down internally by the courts themselves.

 

*           Jolowicz, op. cit., p. 363.

 

*           Jolowicz, op. cit., p.370.

 

*           The history of the Emperor’s legislative supremacy is compendiously summed up in the following passage by a writer whose name is not known.  “By the end of the Republic, when the empire had become a vast area, popular Assemblies of the old type had become impractical and early in the Empire, by no act of legislation, but by the Emperor’s influence legislation passed to the Senate, which was now substantially nominated by him.  Its enactments, senatus consulta, show a gradual transition from instructions to the magistrates, which had always been within the province of the Senate to direct legislation.  Here, too, the measures were proposed by the presiding magistrate, who was the Emperor or his nominee, so that the Senate had even from the first, very little independence.  And when in the second century the Emperor claimed to legislate directly, senatus consulta soon ceased to be ultilised: thenceforward the emperor was the sole legislator.”

 

*           Schulz, op. cit., p.286.

 

*           The first Code, the Codex Vetus, was a collection of constitutions of leges generales enacted since Constantine.  It was largely an updating of Theodosius’s Collection (439 A.D.) and was completed in 529 A.D.  A further collection of 50 Constitutions, known as the 50 Decisions (Quinqua Ginta Decisiones) was intended to dispose of controversies arising out of interpretations of the jurists.  But a further collection was needed.  The Code (the Codex Repetitiae Praelectionis) was about half the size of the Digest and contains about 5,000 enactments, the earliest of which was made in the time of Hadrian.  However, legislation refused to stand still.  No sooner had these codifications been completed that the Emperor and his advisers were confronted with more and new enactments.  Because they were ‘new’ - in the sense of having become law since the Code - these were collectively described as the Novellae Constitutiones.  It was intended to collect and publish these new enactments from time to time, but work on this ceased in about 540 A.D.

 

*           Jolowicz, op. cit. p.328.  During Nerva’s reign (96-98 A.D.) jurists were invited to become members of the Emperor’s Concilium.

 

*           “If the transference of plenary sovereignty to the emperor is a slow process, the process may be traced in the reign of Hadrian.  As he sought to deprive Italy of its primacy, so he began to divest the senate of its partnership.  He gave an additional importance to the knights, who constituted the civil service: it was a knight who held the only considerable command which he gave to a subject: the knights were admitted to his concilium along with senators.”  The Legacy of Rome, The Conception of Empire, Oxford, Ernest Barker, p.71.

 

*           Although it is conventional to speak of the Eastern and Western Empires, constitutionally the Empire remained one. 

 

*           The Institutes of Justinian, translated by J.B. Moyle, Oxford, (1889) p.1.

 

*           Tribonian who presided over the entire exercise was Minister of Law and Justice, to Justinian.  Born in Pamphilia in the latter part of the 5th century he had practiced as an advocate in the prefectural courts in Constantinople.  He attracted the attention of Justinian.  In 532, during work on the Digest, the Nika insurrection took place and because of his alleged corruption Tribonian received such hostility from the people that Justinian discharged him from office.  After the insurrection was over Tribonian continued his work on the Digest and remained Justinian’s chief legal adviser until his death in 545.  Gibbon has compared Tribonian to Bacon, both in learning and venality. 

 

*           Kolbert, Justinian, the Digest of Roman Law, Penguin Classics, p.41.

 

*           Kolbert, op. cit., p.41.

 

*           Hunter, Introduction to Roman Law, Sweet & Maxwell, p.79.

 

*           Compare English law, Lord Cranworth’s Act (1860) (23 and 25 Vic. c 45) and the Conveyancing Act 1881.

 

*           Hunter, op. cit., p.101.

 

*           Hunter, op. cit., p.104.

 

*           Hunter, op. cit., p.135.

 

*           See Year Book 3 Edward II 59.

 

*           See generally Schulz, History of Roman Legal Science, pp.53-56.

 

*           Jolowicz, op. cit. p.409, see infra.  For similar reasons legalism never arose in Ancient Greece.  This may seem surprising as Greece had all the intellectual apparatus for legal science.  But it had no legal professionals or jurists.  Tribunals, known as the Heliasts, giant juries of 201 or even 1,001 jurors, decided court cases.  They would not only decide facts but also the law.  This opened the way to tribunals being swayed by rhetoric.  At all events, such lay tribunals were incompatible with the development of legal science and therefore of legalism.  Compare in this regard the relationship of the English judge to the jury.  The latter determine facts conclusively, but the judge decides all questions of law, see infra. 

 

*           George W Keeton, English Law, The Judicial Contribution, David and Charles, p.90.

 

*           English History, Encyclopaedia Britannica, 1958 edit.

 

*           Schulz, History of Roman Legal Science, Oxford, p.57.

 

*           And from clerical control.  Most of the medieval universities - Bologna, Paris, Salamanca, Perugia, had become autonomous communities. 

 

*           London Street Tramways v London County Council (1898 A.C. 375).

 

*           Parker v The Queen 1963 111 C.L.R. 610 when it refused to follow Director of Public Prosecutions v Smith 1961 A.C. 209.

 

*           David and Brierley, Major Legal Systems in the World Today, Stevens, p.45.

 

*           Jolowicz, op. cit., p.326.

 

*           Article 39 of Magna Carta provided, “no freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will be go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”

 

*           The Lex Hortensia (287 B.C.) by which the resolutions of the Concilium Plebis were given the force of law.  After the Lex Hortensia plebiscita were equivalent in law to Leges; the Licinian laws (367 B.C.) which allowed the plebeians to become consuls; the lex Papiria (131 B.C.) which required the secret ballot in Assembly voting; the lex Caecilia Dedidia (98 B.C.) which stipulated the interval between promulgation of a law and voting on it as 24 days and the prohibition on proposals dealing with unrelated subjects being included in the same bill and the lex Cornelia (67 B.C.) which prohibited laws being applied to and being restricted to particular individuals.

 

*           Compare in respect of statutes the Bill of Rights 1689, the Act of Settlement 1701, the Act of Union with Scotland 1707, the Parliament Acts 1911 and 1949 (which established the primacy of the House of Commons) and various Acts relating to electoral distribution. 

 

*           Sulla did introduce the requirement of Senate approval.  It was one of his reforms introduced in 82 B.C. primarily to bolster the powers of the Senate but the requirement was removed by Pompey and Crassus in 70 B.C.

 

*           Thus in 91 B.C. Livius Drusus introduced a bill into the Assembly in which he sought to ‘tack’ on to popular provisions concerning the supply of corn an unrelated subject - deprivation of the equites right to sit on criminal juries.  In the intense political atmosphere around this measure, the Senate advised that the Bill was illegal, as being contrary to the lex Caecilia Dedidia, Jolowicz, op. cit., p.27.

 

*           450 B.C.

 

*           Jolowicz, op.cit., p.44.

 

*           Jolowicz, op.cit., p.95.

 

*           In England it was by no means an immediate or easy process.  The Judges were first the King’s servants and dismissible at his pleasure.  Gradually the Bench changed in composition.  Clerics ceased to be appointed.  There was a tremendous struggle in the 17th century when James I insisted that the Judges remain his servants and further when James II sought to remove them at will.  But the courts continued to assert their independence and this ultimately became embodied in the Act of Settlement 1701.

 

*           Jolowicz, op.cit., p.71.

 

*           They were not rightless in private law.  They had rights under the ius gentium, Jolowicz, op.cit., p.64.

 

*           “But the most conspicuous and numerous instances and demonstrations of his criminality come from his Governorship in Sicily.  For three long years he so thoroughly despoiled and pillaged the province that its restoration to its previous state is out of the question.  A succession of honest generations over a period of many years, could scarcely have achieved even a partial rehabilitation.”, Cicero Against Verres, Penguin, Cicero - Selected Works, Grant, p.41.  In a similar situation 1,800 years later, following the impeachment of Warren Hastings, England set about introducing all the protections of English law and British justice into India.

 

*           op. cit., p.70.  The arbitrariness of Roman government was to some extent relieved by the extension of citizenship.  The claim by the Italians to citizenship and the opposition to it by the Senate and the Roman mob was one of the main issues in the Social War (97-88 B.C.).  This resulted in the acquisition of Roman citizenship by the Italians which brought with it the application of Roman law.  We are concerned here only with the period of the Republic.  But with the Principate citizenship began gradually to be extended to the Provinces.  At all events some provincials acquired citizenship, the most celebrated being the apostle Paul.  Presumably his father or grandfather had acquired citizenship.

 

*           As in the case of the slave Somersett kept in a hulk on the Thames, 20 St.Tr. 1.

 

*           “And with respect to the argument from state necessity, on a distinction being made aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books understand that distinction”, Lord Camden in Erskine v Carrington 19 St.Tr. 1073; Wilkes v Wood (1763) 19 St. Tr. 1153; Leach v Money, Watson and Blackmore (1765) 19 St. Tr. 1001; Entick v Carrington (1765) 19 St. Tr. 1029; and Wilkes v Lord Halifax (1769) 19 St. Tr. 1001 and, more recently Christie v Leachinsky (1947) A.C. 596-597.

 

*           Felton 3 St. Tr. 371, Ibrahim v R (1914) A.C. 599 and The Judges Rules 1912.

 

*           Case of Proclamations (1610) 12 Coke Reports 74.

 

*           Musgrave v Chung Tee Ong Toy (1891) A.C. 270; Stockdale v Hansard (1839) 9 Ad. E. 1.

 

*           (1700) 1 Ld. Raym. 455.

 

*           468-469.

 

*           The prerogative writs were certiorari for excess of jurisdiction; prohibition to prevent excess of jurisdiction and mandamus to compel performance of a public duty.

 

*           Although control over Sewer Commissions by the writs should not be overlooked in their historical development, see Judicial Review and the Rule of Law: Historical Origins, Jaffe, 72 L.Q.R. 345.  It is important to recognise that the jurisdiction exercised by the courts under the prerogative writs was entirely supervisory.  Legalism does not compel the substitution of judicial decision for executive action. 

 

            The essence of legalism is that the issue to which it applies should be justiciable.  That is, it should be capable of being resolved by the application of pre-existing standards.  Questions of policy are outside its boundaries.  The courts are only concerned with whether the executive is operating within the powers conferred upon it and, in the case of executive discretion, that the administration has taken account only of relevant considerations but all relevant considerations.  The Courts will ensure that where private rights and obligations will be affected by an executive decision, due process has been accorded. 

 

*           Rome, M. Rostovtzeff, Oxford University Press, Ch XII, p.133

 

*           Cicero and the Roman Republic, F.R. Cowell, Penguin, p.138.

 

*           3 Charles II Ch. 6.

 

*           S.A. de Smith, Constitutional and Administrative Law, Penguin, p.501; Hasbury 3rd edit, p.260, para 563.

 

*           Clifford & O’Sullivan (1921) 2 A.C. 570.  (At least by the remedy of prohibition).

 

*           Wolfe Tone’s Case (1798) 27 S.T. TR. 613.

 

*           Law of the Constitution, Macmillan & Co Ltd, (1982), p.293.

 

*           Elias, Roman Law in a Nutshell, Sweet and Maxwell, 1945.

 

*           2nd edit, pp.11-13.

 

*           Jolowicz, Historical Introduction to Roman Law, Oxford, p.496.  “In the East, where the Empire still existed, Justinian’s compilations were neglected in favour of simpler and more accessible memorials of Roman law:  the Eclogia of Leo the Isaurian (740) and the Procheiron of Basil the Macedonian (870), the efforts of Leo VI (the Wise, 866-912) to revive the law of Justinian in 900 by compiling the Basilica led only to a temporary renaissance, and as a matter of practice earlier or later works were employed.”, David and Brierley, Major Legal Systems in the World Today, Stevens, 2nd edit, p.35.

 

*           One may thus smile at the irony of the Digest, intended by its author to be the definitive foundation of a regulatory legal order in the Empire should, after half a millennium, have become the catalyst for 800 years of legalism in Europe.

 

*           Meynial, Legacy of the Middle Ages, Roman Law, Oxford, p.367.

 

*           Ryan, An Introduction to the Civil Law, Law Book Company, p.11.

 

*           In 1075 Pope Gregory had declared the supremacy of the church and its freedom from secular control.  In that situation it was imperative for the church to have ‘her own jurisprudence’, E.F. Jacob, A Legacy of the Middle Ages, Political Thought, p.514.  Gratian provided the Papacy with the centralised legal system it needed.

 

*           Gabriel le Bras, Legacy of the Middle Ages, Canon Law, p.326.

 

*           M. Bloch, Feudal Society, Routledge and Keegan Paul, p.111.

 

*           At least not without formalisation or codification.  In the 11th century local mercantile custom centred around the Italian cities, of which Pisa was the most prominent.  Attempts were made to bring about uniformity among these differing Mediterranean usages.  The Consulato del Mare (1340) was one example and was adopted by the English courts at Bristol, Southampton and London.  In England a mercantile custom could be proved before a jury of merchants.  It thus became law through this continuing process of formalisation extending from the 16th to the 19th centuries as described in Goodwin v Robarts, 1875 L.R. 10 Ex. 76, 337 affirmed H.L. 1 A.C. 476.

 

*           Van Kleffens, Hispanic Law, Edinburgh, p.173.

 

*           As Gibbon, writing in the 18th century, said, “the vain titles of the victories of Justinian are crumbled into dust, but the name of the legislator is inscribed on a fair and ever lasting monument.  Under his reign and by his care, the civil jurisprudence was digested in the immortal works of the code, the Pandects, and the Institutes: the public reason of the Romans has been silently transfused into the domestic institutions of Europe, and the laws of Justinian still command the respect or obedience of independent nations.”  Gibbon, Decline and Fall of the Roman Empire, ch.23.

 

*           “In continental countries the doctrine of the jurists played a correspondingly important role to that of the courts in common law countries.  Consequently, the work of the glossators, commentators and pandectists must also be viewed in relation to the contemporary adaptation of the Roman Law to modern European conditions…”, Stone, Legal Systems and Lawyers Reasonings, Maitland, p.224.

 

*           Judske lolv of Valdemar seir (1251), Denmark; the General Code of Magnus Lagaböte (1274), Norway and Iceland; The General Laws for Town and the General Law for the Country, Magnus Eriksson (1350), Sweden and Finland.  Early codifications of the laws took place in Norway (1683), Denmark (1687), and in Sweden and Finland (1734).

 

*           David and Brierley, Major Legal Systems in the World Today, Stevens, pp.40, 48.

 

*           This is not to say that throughout this period Roman law was without its critics.  In France, a body of jurists, known as the Humanists criticised the Roman law as commented upon by Bartolus.  Hotman (1567) wrote a work AntiTribionianus, criticising the Corpus Iuris Civilis as decadent and lacking in principles.

 

*           On the Vocation of our Age for Legislation and Legal Science.

 

*           The original codifications were largely based on this naïve idea that a code could be formulated which would require almost no judicial interpretation.  The Prussian code, which contained 16,000 clauses was based on this assumption.  Napoleon, who was very active in the preparation of the French Code (presiding over more than half the 102 sessions of preparation) exclaimed, “Mon code est perdu” when told that the first commentary upon it had been published.  Portalis, the leading member of the committee which prepared the code was wiser when he laid down that a code should be confined to a statement of general principles and not attempt to cover the entire field of the code’s application.

 

*           David and Brierley, Major legal systems in the World Today, 2nd edit, Stevens, p.44.

 

*           Ryan, An Introduction to the Civil Law, Law Book Company, p.31.

 

*           David and Brierly, op.cit., p.42.  Speaking of the Pendectists “it is said that they set themselves the task of tracing the original meaning in Roman times of the legal propositions of Justinian’s Corpus Iuris.  But the further they went back behind the adaptation of Roman law to post-medieval European conditions, the greater became the gap between their work and the urgent tasks of adapting Roman law to the needs of countries which had received it… It was only because they were not as logical as they thought they were that the pandectists achieved so much and destroyed so little.  Whatever their design, because they were men of 19th century society, seeing through its eyes and using words with its meanings, they were in fact adapting the Roman law to the conditions of their contemporary society.”  Stone, op. cit. p.226.

 

 

*           Ryan, op.cit., p.23.

 

*           T.F. Plucknett, The Relations between Roman Law and English Common Law down to the 16th Century:  A General Survey, Toronto Law Journal, pp.47-48.

 

*           Not to be confused with the Court of Chancery.

 

*           Windeyer, Legal History, 2nd edit, Law Book Company, p.48.

 

*           Maitland, The Forms of Action of Common Law, Cambridge, p.5.

 

*           Bracton, De Legibus quoted by Allen, Law in the Making, Oxford, p.167.

 

*           History of English Law, Methuen, Vol IV p.293.

 

*           Thus, Book II of the Institutes refers to the following Titles (i) “Of the different kinds of things” (ii) ”Of incorporeal things” (iii) “Of servitudes” and (iv) “Of usufructs”.

 

*           Legal Systems and Lawyers Reasonings, Maitland,pp.212-213.

 

*           European codification was “an attempt at a massive ‘once and for all’ authentic exposition of the law”.  The Italian Legal System, Cappaletti, Merryman, Perillo, Stanford, 1967,p.243.

 

*           Julius Stone, Legal Systems and Lawyers Reasonings, Maitland, p.214. Thus Stone instances Article 1384 of the French Code providing for liability for parents in the case of damage caused by their children and of masters for the damage caused by servants and apprentices. This Article was used to develop “one single principle to cover these and analogous liabilities created by the courts in special situations to meet modern industrial conditions.”

 

*           Art. 1135; c/f with the common law, Public Service Board of New South Wales v Osmond (1986) 60 A.L.J.R. 209.

 

*           The Italian Legal System, Capaletti, Merryman and Perillo, Stanford, p.254. This is forbidden by the common law in the interpretation of statutes. The courts may not fill a casus omissus.

 

*           It derives from the Austrian Civil Code of 1811 (although the reference there is to the principles of natural law). It appears as Article 3 of the Preliminary Provisions of the 1865 Italian Civil Code. Article 6 of the Spanish Code refers to the general principles to be deduced from the code.

 

*           R. Pound, Jurisprudence, Yale, 1959, Ch.19. p.725.

 

*           Thus, for example, the spelling out of an entire body of law as to the transfer of chattels by traditio from Articles1141,2279-80, 2102 and 2119 taken together; Stone, op.cit., p.217, note 32.

 

*           Science of Legal Method, Modern Legal Philosophy, p.35.  Quoted in Friedmann, Legal Theory, p.221.

 

*           Although for the position in medieval England, see Allen, Law in the Making,Oxford,4th edit. p.366.

 

*           Maine, Ancient Law, Everyman Edition, pp17-18.

 

*           Maine, Ancient Law, Everyman, pp. 17-18.

 

*           Eyston v Studd (1954) Plow. 459.

 

*           It is to be noted that the Courts in Australia have refused to allow the use of analogies derived from statute to form principles, Public Service Board of NSW v Osmonde (1986) 60 ALJR 209.

 

*           Schulz, History of Roman Legal Science, op. cit., p.286.

 

*           ‘rumpere’, ‘to break’, began to be interpreted as ‘corrumpere’ ‘to spoil’.

 

*           See Jolowicz, op. cit., p.286; Hunter, op. cit., p.146; see, however, the comments of Schulz, op. cit., p.130.

 

*           Harding, Social History of English Law, Pelican, p.226.

 

*           (1808) 1 Camp. 493.

 

*           Koop v Bebb (1951) 81 CLR 629.

 

*           Employer’s Liability Act 1880.

 

*           Priestley v Fowler (1837) 3 M. & W. 1.

 

*           Butterfield v Forrester (1809) 11 East 60.

 

*           Chandler v Webb (1904) 1 KB 493.

 

*           Here we have an ambiguity in language.  The ‘common law’ mostly refers to the entire system of judge made law in England and in countries which have acquired English law.  But the common law may be intended to refer only to that part of judge made law formulated in the courts of common law as distinct from judge made law formulated in the courts of equity.  Both common law and equity courts were amalgamated by statue in 1875.

 

*           27 Henry VIII c 10.

 

*           Holsworth, H.E.L., Methuen, Vol IV, pp.450-461.

 

*           Maitland, Lectures on Equity, Cambridge, p.34.

 

*           3 Tothill 188.

 

*           The rule in Tyrell’s case (1557) preventing the legal interest passing.

 

*           “For when an Act of Parliament is against common rights and reason… the common law will control it and adjudge such Act to be void”, Bonham’s Case (1610) 8 R.E.P. 114, 118.

 

*           (1889) 23 Q.B.D. 168.

 

*           (1941) 67 C.L.R. 536 at 540/541.

 

*           For the ‘common law’ in this context, see in Re Wait (1927) Ch. 606, 635-636; King v Greig (1931) V.L.R. 413 and Watt v Westhoven (1933) V.L.R. 458.

 

*           It is true that Lord Herschell when speaking of the Bills of Exchange Act in Bank of England v Vagliano (1891) A.C. 107 at 144 said that ‘the proper course is to ask what is the natural meaning of the words uninfluenced by any considerations derived from the previous state of the law’.  But as Halsbury correctly said, subsequent decisions ‘may well be to extend as well as to explain the terms of the statute, whereas the use of the earlier cases is mostly to explain or illustrate those terms’, 3rd Edit, Vol 3, p.142.  All that Vagliano means is that there is no ‘presumption that the previous law remains the same unless the provisions of the code are clearly inconsistent with it’, (1945-46) 19 A.L.J. 192.

 

*           3rd Edit Vol 22, p.7, para 1.

 

*           See the discussions in Re Wait, Watt v Westhoven, King v Greig, supra, as to whether the common law system in relation to the sale of goods is confined to the ‘common law’ as strictly defined or extends to the rules of equity.

 

*           Registration was necessary to confer interests in land.  Unregistered instruments could create equitable interests and priorities were determined by equitable principles resulting from the lodgement of caveats and other procedures connected with the registration process: Butler v Fairclough (1917) 23 C.L.R. 78; Clements v Ellis (1934) 51 C.L.R. 217 at 237; Abigail v Lapin (1934) A.C. 491.

 

*           Riche v Ashbury Railway Company (1875) L.R. 7 H.L. 653 but see Ashbury v Riche in the court below (1875) L.R. 9 Ex. 224 at 229 and Willes J’s judgment in Phosphate of Lime Company v Green (1871) L.R. 7 C.P. 43 and Saloman v Saloman (1897) A.C. 22.

 

*           Thus the warranty provisions in Part V if the Trade Practices Act 1974 are converted into non-consensual statutory requirements whilst still bearing a contractual personal.

 

*           Thus the concept of a lease was almost totally reconstructed by statutory impositions in the war-time and post war Landlord and Tenant legislation.

 

*           The ‘defence power’ under the Australian Constitution (s.51 pl.6) was construed to be a purposive power and that therefore the power of the Commonwealth parliament to make laws for defence expanded or contracted with the needs of defence.

 

*           “In the nineteenth century … law became a realisation of the idea of liberty and existed to bring about the widest possible individual liberty.  Liberty was the free will in action.  Hence it was the business of the legal order to give the widest effect to the declared will and to impose no duties except in order to effectuate the will or reconcile the will of one to the will of others.”  R. Pound, An Introduction to the Philosophy of Law, Yale, p.79.

 

*           (1939) KB 687

 

*           Dixon, Jesting Pilate, Science and Judicial Proceedings, The Law Book Company, p.13.  Set out in the Introduction.

 

*           Otto v. Bolton, (1936) 2 KB 46 decided after Donohue, provides an example.  Builders in a house were held not liable for injuries sustained by the purchaser’s mother as a result of a defective ceiling. On the face of it one would have thought that the circumstances were governed by the rule in Donohue as did the Court itself, but an earlier decision of the House of Lords in Cavalier v Pope (1906) had in effect excluded realty from the scope of the rule.  Thus the Court was compelled to regard ‘realty’ as a relevant ground for distinction contrary to the conclusion it would have reached by the ordinary processes of analogical reasoning.

 

*           The doctrine of precedent had also become less flexible.  The locus classicus of the doctrine was stated by Parke, J in Mirehouse v Rennell in 1833.  “Our common law system consists of the applying to new combination of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised.  It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science.”

 

*           In this case a government inspector in a wartime munitions factory was injured by an explosion in the factory, the explosion resulting from highly explosive material.  She claimed damages for the injuries without alleging negligence.

 

            In making this claim she relied upon the rule of law established in Rylands v Fletcher (1868), which laid down if a person keeps on his land anything likely to do mischief if it escapes, he must keep it in his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.  Rylands v Fletcher thus did not require proof of negligence by an injured plaintiff but the question raised in Read v Lyons was whether it was material to the rule that the escape of the dangerous user must cause injury outside the land where it was taking place. 

 

            The House of Lords held that it was.  Rylands v Fletcher itself was an exception to the principle of fault liability.  That exception arose from various lines of old authority imposing strict liability which were, in the words of Dean Wigmore, ‘wandering about’, ‘unshepherded and unhoused’ until they were rationalised by Mr Justice Blackburn.  These old authorities related to cattle trespass and fire.  Mr Justice Blackburn had generalised them into the rule set out above. 

 

            The House of Lords resolutely refused to extend Rylands v Fletcher any further.  The outer perimeter of ‘fault liability’ had been reached.  Lord Macmillan said, ‘the process of evolution has been from the principle that every man acts as his peril and is liable for all the consequences of his acts to the principle that a man’s freedom of action is subject only to the obligation not to infringe any duty of care which he owes to others …’.  Lord Macmillan recognised that an exception existed in the harm done by dangerous animals in which strict liability would be imposed.  He recognised the analogy of that exception.  Of the exception itself he said ‘it is too well-established to be challenged’.  But he added ‘such an exceptional case as this affords no justification for its extension by analogy’.  Lord Porter conceded the apparent illogic of allowing strict liability for injury to the plaintiff if she had been just outside the munitions factory but not when she was within it.  But he would not, on that account, extend Rylands v Fletcher further. 

 

*           (1947) A.C. 341.

 

*           (1979) 53 A.L.J.R. 656.

 

*           See the Animals Act 1977 (N.S.W.).

 

*           Promissory estoppel as enunciated by Denning in Hightrees (1944) and as developed by the Court of Appeal in Combe v Combe (1951) was reconcileable with the principles of contract and the doctrine of consideration.  It recognized that representations of future conduct could not be enforced.  The need for consideration in such a case was never denied.  Estoppel’s only function was as a defence justified by the ordinary principles of Equity.  It was neither necessary nor just to confine estoppel to representations of fact where it was relied upon as a defence only.  In this way the principles of contract and the principles of equity were reconciled. 

 

            The equitable interest of a deserted wife in the matrimonial home, as suggested by Denning, ran counter to authorities defining the wife’s right as a personal right or ‘equity’ terminable on commission of a matrimonial offence or divorce.  Denning’s view on this confused an incident of the matrimonial relationship with interests governed by the principles of property and equity.  The position of the wife in the matrimonial home was eventually and properly resolved by statute.

 

*           Lee v Bude & c Railway Co, “It was once said if an Act of Parliament were to create a man judge in his own cause, the Court might disregard it… I deny that any such authority exists.”

 

*           H.E.L. Vol. iv pp.187-189.

 

*           The Australian Law Reform Commission was established in 1975 under an Act of 1973.  This followed by a decade the United Kingdom Law Commission.  Law reform bodies were established in all the Australian States and in most other common law countries during this period.