Summary - development of the common law in england PDF

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Development of the Common Law in England...

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Legal Method Development of the Common Law in England (See Chapter 1) What is Common Law? An adversarial system with an impartial judge overseeing the process, and previous case reports are used as precedents that constitute the body of the common law. Originally a reference to one “common” law throughout all of England. System based on writs issued by the king/chancellor, initially very strict and inflexible, which led to the creation of a separate body of equity law related to ethical fairness, which is supplementary to common law, and takes precedence where the two clash. Statutory law was a later addition that can overrule either of them, and is issued by the parliament. What is Civil Law? Inquisitorial, used as the basis for most of Europe/Asia (non-Commonwealth world) – Judge takes a much more active role, past cases granted less authority. What is Customary Law? The unwritten customs of a specific tribe or people – vary wildly from region to region, initially based on survival, religion, etc. The Dooms of Alfred The ‘dooms’ (Anglo-Saxon word for ‘law’) were an attempt by Alfred the Great, King of Wessex to codify the existing customary law in England. The Dooms did not have any significant impact on the development of Common Law in England, because there was no centralisation of justice (i.e. no consistent system of justice). Following the Norman Conquest Conquest culminated in the Norman victory at the Battle of Hastings in 1066. William I was first Norman King of England, but did not change existing Anglo-Saxon Law because; William claimed to be the legitimate successor of the throne; and there was a practical difficulty in replacing the existing law. Instead, William introduced Continental Feudalism. Continental Feudalism Continental Feudalism was a Norman form of Land Law where disputes concerning land were brought before the King’s Courts. It was an attempt by William to centralise justice in England. Through this a body of land law developed and was applied throughout England. This was an influential step in the emergence of a Common Law in England. How did Common Law come about? Norman introduction of Continental Feudalism formed a strong centralisation of government, which served as a foundation for the unification of laws throughout all of England (hence becoming “common” law), though it did not create common law due to the reliance on existing customary law by rural villagers. Henry II Henry recognised the need for the centalisation of the administration of justice and hence, began to introduce an institutional structure through which royal judged could begin to develop a body of rules, eventually constituting the Common Law. This development depended on court procedures such as the Writ system, only possible through a centralised administration of justice. Henry’s reign did not eventuate in Common Law, however, his reforms provided the platform for future development. A system of writs was gradually introduced to identify specific actions that could be taken (“writ” was a command by the sovereign to carry out/refrain from doing something). All writs added to register and became usable in future cases. The inflexibility of the writ system led to creation of the principles of equity. Note on Equity Established in the Court Chancery and the Provisions of Oxford 1258 (prevented the chancellor from issuing any new common law writs). Equity is a supplementary jurisdiction in the sense that it was only available where the common law did not provide an adequate remedy. Judicature Acts 1873 and

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Legal Method 1875 fused the administration of common law and equity together, however, the principles of equity and the common law themselves remain separate. Common Law, Equity and Statue Law Common law and equity are sometimes referred to as judge-made law. Statue law is create by Parliament and presides over both common law and equity if it is Parliament’s intention to override them. Statutes are usually passed to modify the common law. Walton Stores v Maher  provides an example of the dynamic between the three bodies. See pages 16-18 of textbook. Where there is any conflict between the principles of equity and the rules of common law, with reference to the same matter, the principles of equity will prevail ---- s249 Supreme Court Act 1995 (QLD) Magna Carta 1215 Created when King John (son of Henry II) met with dissatisfied Barons and Knights who rose up against him after his reign led to instability. They reached a verbal agreement concerning the role of the Crown, leading to the Magna Carta. Chapter 39 + 40 provided two fundamental aspects of the rule of law. 39: no person can be charged, or deprived of civil rights or possessions without due process. 40: ‘to no one will we sell, to no one deny or delay right or justice’. Taken together, the Magna Carta essentially meant that the Crown was subject to the law, something which is fundamental even today. Importance of the Glorious Revolution 1688 From the revolution flowed three principles of liberty; constitutional monarchy; and parliamentary supremacy. Was completed when James II, after struggling with Parliament, fled England and was replaced by William of Orange who agreed to the Bill of Rights . The revolution transformed the relation of the Crown and Parliament, the Crown holding executive power, while Parliament held legislative power. Crown’s legislative prerogatives were laid to rest. These were contained within the Settlement of 1688. Reception of English Law in Australia (See Chapter 2) General Notes  Any statutes ending with (Imp) are passed by the Imperial Parliament (The British parliament sitting a special session relating to colonies).  Australian law was ENGLISH law, NOT British law – just the Law of England and Wales  Older case examples reflect the law at the time (Pre-Mabo) Captain Cook Cook was instructed by British Admiralty to find the ‘great south land’ due to his reputation as a brilliant navigator. He reached the eastern coast of Australia and took possession of it, naming it New South Wales. Cook noted that the eastern coast was inhabited. Terra Nullius - “Land belonging to no-one” - Important concept of 18th Century International Law (See textbook pg24-25) - Based on European Cultivation of Land (merely inhabiting insufficient to inhabit land) - Allowed land to be settled and inherit all laws of settling nation, as opposed to requiring cession or conquering, which would leave native laws in place initially (see doctrine of reception or textbook pg23) - Settled lands gained “Only so much of English Law as is appropriate” for the colony (Blackstone) – initially effectively restricted to criminal and military law - Application of this principle was crtiticised in Mabo v QLD [No. 2] (1991) - Formed underlying principle in de Vattel’s Doctrine of Reception Doctrine of Reception and incorporation into English law This doctrine was incorporated into English law through Case 15 – Anonymous (1722) where the Privy Council held in relation to plantations in Barbados that: 1. If there is land found new and uninhabited, the law of the colonising nation will apply 2. When the land is gained through conquest or cessation, the law of the existing colony applies, until the conquering or sovereign nation takes action to change it.

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Legal Method The Colonisation of NSW  NSW was assumed a penal colony, whereby English law applied under the doctrine of Terra Nullius. The reception of English law in NSW was in dispute as NSW was a penal colony.  There was doubt about the extent to which English Law applied in penal colonies, even in the context of Blackstone’s proviso in his Commentaries of the Laws of England. o Blackstone’s proviso was that colonists ‘carry with them only so much of the English law as is applicable to their own situation’  There was also doubt in respect of a penal colony; paramount v. non-paramount English statutes; the common law; and principles of equity.  This doubt endured until 1828 when all non-paramount statues and common law prior to that date were declared relevant by an Imperial statute so called the Australian Courts Act 1828 (Imp.) o Paramount statutes are those applied specifically to one or more of the colonies o Non-paramount statutes applied generally throughout England. o The act itself was not a source of law, but merely a cut-off date, source was settlement itself (see pg. 28-31)  Despite the doubt, ‘non-paramount’ (general application within England) was applied in NSW; however, principles of Equity were introduced after s9 of the New South Wales Act 1823 (Imp.) Australian Courts Act 1828 (Imp.) (see page 28-31 of textbook for in-depth analysis) s24 of this act was a clarification (or an attempt at clarification) to the extent of which the laws and statutes of England applied in the colonies of NSW and Van Dieman’s Land (Tasmania) as at the date of passing the act by Imperial Parliament; namely, 25 July 1828. Essentially, all statues and laws not inconsistent with the act and in force at the passing of this act will apply to the courts of NSW and Van Dieman’s Land. Mabo v QLD [No. 2] (1991) 175 CLR 1 (see Review Q Ch. 2 pg. 34-40 and tutorial 4)  Murray Islands were annexed into QLD in 1879 and was considered crown land. The Islands were inhabited prior to European arrival. Since the English were colonizers, Mabo, and inhabitant and representative of the Islands, argued that the Crown were subject to their local property rights. QLD then enacted the Queensland Act in order to assert Crown ownership; however, this act was invalidated due to inconsistency with the Racial Discrimination Act (Cth.) (specifically, s109 of the constitution). Mabo’s claim was upheld.  Brennan J’s basis of reasoning was that the doctrine of terra nullius was no longer recognized under international law (since the doctrine was based on outdated notions concerning indigenous society which was inconsistent with international racial equality princples) and stated that the common law must be developed and retained in order for the rule of law to endure. Essentially, the only types of law applicable were the common law, statute law and paramount statutes. HE justified the retention of the CL because it was part of Australian and international law and even formed the basis of statute law, meaning rejection of CL would destroy the legal system. Dormant Common Law (see pg 31) Dormant common law remained irrelevant until applicable, at which point it became law Pertaining to Blackstone’s proviso, which raised the issue of whether CL can remain dormant until the conditions of the new colony change so that the CL becomes applicable to the colony. Colonial Laws Validity Act 1865 (Imp.)(see page 32 of textbook) Made any laws passed contrary to an Imperial Statute invalid to the degree with which they conflicted that statute. Clarified repugnancy and asserted the supremacy of Imperial statutes. Federation, Political Institutions and the Judiciary; Case Law and Court Hierarchies (see Ch. 4) Or rather see tutorial 3 “Law making and the Organs of Constitutional Government Constitution • Note: introductory level stuff, not that relevant • Pre-federation process – focus on drive from colonies to states • Passed by British parliament in 1900 – aka Federation • Western Australia was added after a last minute referendum via a clause in the constitution • New Zealand was another potential candidate • The Commonwealth (Federal) Parliament can only pass a statute in areas within its express of implied constitutional power.

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Legal Method • Eg. Criminal Law is unique to each state, as is health (State Hospitals) Post-Federation • Australia moving away from Britain/British Control • Treaty of Versailles – first international treaty signed by the Australian Government • Balfour Declaration – Britain and its dominions were considered equals, led to Statute of Westminster Act Statute of Westminster (1931) and Statute of Westminster Adoption Act (1942) • Initially resisted, but adopted in 1942 to seek protection from the US rather than the UK • Act to remove Doubts • Schedule contains actual statute • Did not apply to the states • Section 2(i) Voids colonial Laws Validity Act, backdated to 1939 • No law passed after 1939 by the Federal Parliment can be repugnant to an Imperial Statute • Federal Government can repeal/amend any Imperial Statute Example – Captain Cook Cruise case • Only sailed within state of NSW and its waters, subject to NSW Parliament, not Federal • Used limitation of liability based on Imperial Statute • Commonwealth had amended/repealed that statute, but the state couldn’t • Interpretation – “part of THE law” included all applicable Imperial Statutes, while “part of A law” wouldn’t have • Therefore statute of Westminster Adoption included the ability to repeal/amend Imperial Statutes that affected the states • If a state parliament had passed a statute specifically applying within that state, it would NOT be part of THE law of the Commonwealth, as it would not apply throughout the Commonwealth of Australia Australia Act (1986) • Removed Colonial Laws Validity Act at a state level • Very similar to Statute of Westminster Adoption Act, but applied to “state” rather than “dominion” • Agreed by UK, Australia, and all State Parliaments • Existing statutes all still applied until amended/repealed The Senate • State based, all states have equal numbers, to protect the interests of the smaller states • Now more party based, states interests are less relevant than which party controls it • See Barwick CJ’s opinions of the senate • 6 year terms, elections every 3 years for half the senators Areas of Exclusive Power for the Commonwealth (Federal) Parliament • Defence • Feign Policy/Dealing with Foreign Powers • Currency • Etc. Concurrent Powers • Shared by both Commonwealth and State • If clashes *do* occur, Commonwealth takes precedence is as far as the conflict goes Residual/Exclusive Power • “Everything Else” • State Authority – eg. Education, Criminal, Health Double Dissolution • Triggers on second time senate rejects, fails to pass, or passes a bill with unacceptable amendments • Requires 2 failures separated by at least 3 months • Results in a Federal election (all senate/house of representatives re-elected) • Must be at least 6 months before the next scheduled election

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Legal Method Joint Sitting • Senate + House of Representatives sitting together to vote on a bill • Can be forced by the Double Dissolution Trigger ◦ What does “Rejects or Fails to Pass” mean? When does 3 months start? ◦ Parliments pass statutes – NOT “the Government”, which has a much wider scope • Queensland is unicameral – bills always voted the way the government in power wants them to be. Review Constitution of Queensland for more information. • Judicial – legally binding power • Non-Judicial – Not legally binding (eg. Arbitration) • Only a Superior Court can create a binding precedent (must be recorded) Legal Reasoning, Case Analysis, Ratio Dicidendi and Obiter Dictum Inductive vs Deductive Reasoning • Basic idea of what they are is required • NOT required when describing/forming the ratio • Inductive: moving from the particular to the general • Deductive: moving from the general to the particular Identifying Obiter • Keywords such as “observation” • “If x had…..” NB: Ratio is not an exact science. Even high court judges can interpret different ratios from the same case. Ratio o o o o o o o o o o o o o

About extracting “the rule of law” that dealt with the facts/decision Ratio *MUST* be linked to the decision/point of law The ratio establishes precedent rather than the actual decision – as it’s the rule of law that establishes the actual decision A “Principle of Law” – general underlying principle (eg. Neighbour principle) “any rule of law”/”the rule of law” refers to a specific rule of law, NOT a general principle “line of reasoning” – obiter dictum that led to the judges decision Each judgement on a point must be specific – different levels of generality can only occur in multiple judgements Use MacCormick’s definition of ratio on pg. 207 Ruling, rather than “rule of law”/principle Only wide enough to settle the point in dispute – must link directly to the point in dispute One case can have multiple disputed points, if so, each point has its own ratio Trial court mostly just applies rules of law, high court rationes may not be existing rules of law, and therefore ratio is not just a rule of law Judges interpretation of an existing statute/rule of law can be the ratio

Obiter Dictum • All past decisions referenced • Any issues not before the court • Any examples given • All observations made • Anything but the facts, the points in dispute, and the ruling How to find the Ratio • How many judges sat on the case? • Determine who is in the majority/dissent • Determine any joint judgements • Find the point(s) of law in dispute by looking at the legal facts • Read first majority judgement, facts, etc. • Analyse that judgement for its ratio • Repeat steps 4/5 for all majority judgements

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Legal Method • Try to find common ratio for the case • NB: Dissenting Judgements DO NOT contribute to the ratio Determining Ratio and Obiter Ratio Notes • If the judge considers one or more rules and chooses to simply apply one, the rule itself is the ratio. • If a new rule or modified rule is created to settle the dispute, that new rule is the ratio (common in court of appeals) • Ratio is much simpler than a principle – it is as specific as it needs to be to resolve the point in dispute • Reminder: Multiple legal issues = multiple ratios • Matters of substance are ONLY those relevant to the legal issue • Identify each judgment’s ratio separately (for judges in the majority) and make sure that a majority of the overall judges have a consistent ratio – otherwise there is none Policy Considerations • General considerations for society/community (Public Health, Insurance, etc.) • External to the parties of the dispute • Policy considerations can include factors like ‘effect of a ruling on a particular profession’ Carbolic Smoke Ball case • In the case of an offer to the world at large: • The detriment in performing the act is the consideration • And performing the conditions specified constitutes acceptance Does every case have a ratio? Ratio Notes • When considering ratio, there are two senses of majority required – the majority of judges who rule in favour of the final decision, and the majority of those judges with a consistent ratio. Both are required • Must identify a sufficient commonality between both senses, with the second more specific majority being required to number a majority of all judges ruling • Dissenting judges CANNOT contribute to the ratio • Mason – every decision has a ratio, even if it isn’t given – at least it’s valid for the case it decides • Privy Council – every case doesn’t have to have a ratio – it must be identifiable or discernable • McHugh – (Opinion, not statute) – If you can’t identify a ratio, the decision still stands for all other cases that are not REASONABLY DISTINGUISHABLE

Fundamental Legislative Principles and Theories of Statutory Interpretation Is following Precedent a Rule or Practice?  Hinchy says Practice  Some disagree  Phrase “Doctrine of Precedent” still acceptable regardless  Requires discernable ratio or McHugh’s “not reasonably distinguishable” Historical Background to precedent  Two historical conceptions of precedent  The traditional or classical common law conception (approach): the declaratory theory of adjudication  The positivist conception (approach) to precedent  Significant changes to the practice of following precedent occurred during the 19th century in England and these changes had a significant influence on the development of the common law  The practice of following and distinguishing precedent has not been static over time  Comparison of the declaratory theory with the positivist conception raises a very important issue  Is the decision of a judge ‘evidence’ of the law or does the decision of the judge ‘constitute the actual law itself’?  Evidence of the law versus the law itself?  This issue raises the important quest...