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Historical Foundations of Australian Law - Volume I

Historical Foundations of Australian Law - Volume I

Institutions, Concepts and Personalities

Edited by Justin T Gleeson , J A Watson and Ruth C A Higgins


The history underlying and informing the Australian legal system is a uniquely interesting amalgam of English, American and local developments. It is often poorly understood – not least because there are no modern counterparts to this volume and its companion on commercial law. But, as Holmes long ago pointed out, in order to know what the law is we must first know what it has been. This volume not only discharges that function, informing its readers clearly and lucidly, but it also demonstrates how Australian legal history may be examined from a range of perspectives, leading to a deeper and richer understanding.

This first volume of 15 essays, by distinguished judges and practitioners, sets the very highest standards of analysis and scholarship. There are incisive assessments of key figures such as Sir Owen Dixon and Justice Joseph Story (by Justices Hayne and Allsop respectively), and of key developments such as the establishment of an Australian land law, the reception of the common law, the growth to nationhood, the changing role of precedent, and the separation of powers. There are essays on the very early influences on Australian law from the leading early texts (Glanvill and Bracton), from early English statutes and from Roman law. There are essays on the growth of equity, and even a modern dialogue (in accordance with an ancient tradition) on the Judicature legislation. And there are accounts of legal procedure, which is ultimately the source of much substantive law, and of the jurisprudential figures who have sought to analyse law. The introductory essay by Justin Gleeson and James Watson provides an overview of the volume, as well as being a powerful argument for why an understanding of legal history is not optional but essential.

Three of the authors have been appointed to judicial office since preparing these essays, and another has been made Solicitor-General of Australia. All have made distinguished contributions, and their essays will bear reading and re-reading, for all Australian lawyers looking for a deep understanding of how the Australian legal system operates.

* Click here for information about Volume II – Commercial Common Law

* Click here for information about Set – Volume I & Volume II


* View Detailed Table of Contents

Editors’ Notes
Selected Legal Texts
Selected Glossary
Table of Cases
Table of Statutes

A Sketch 
      J A Watson
The Common Law Courts: Origins, Writs and Procedure
      N Manousaridis

Reception of Roman Law in the Common Law 
      A R Emmett

Glanvill to Bracton: The Two Great Early Legal Treatises 
      J T Gleeson

Early Statutes Shaping the Common Law 
      J S Emmett

The Development of the Conscience of Equity 
      F T Roughley

Five Judicature Fallacies 
      M J Leeming

Invisible Cargo: The Introduction of English Law into Australia 
      J Stoljar

Australian Land Law 
      P M Lane

Colonies to Dominion, Dominion to Nation 
      S Kenny

Building a Nation: The Doctrine of Precedent in Australian Legal History 
      G C Lindsay

The Separation of Powers and the Unity of the Common Law 
      J T Gleeson & R A Yezerski

Justice Joseph Story 
      J L B Allsop & A Foong

Sir Owen Dixon 
      K M Hayne

The Jurisprudes 
      R C A Higgins



“Each of the essayists is a person whose contribution is worth reading. Their work and its thematic arrangement creates an important and valuable resource and makes accessible to Australian lawyers, law students and judges in a convenient way, an array of materials which would otherwise require resort to a large range of disparate texts and law review articles.”

“This book is a rich source of learning and reference for students, practitioners and judges alike. I certainly hope that it will find its place, inter alia, in legal history courses in more than one law school.” Read launch speech...

Chief Justice Robert French launching both volumes, 22 August 2013

"The text's purpose is to provide a deeper understanding of how the modern Australian legal system has developed and to encourage readers to consider the underpinning legal and governmental structures that moulded that development.
       The text contains an eclectic series of essays from a formidable list of contributors… Each essay is a stand-alone piece, but each follows on from the last in a general way to provide a broad brush discussion of the historical development of Australian law.
       This book packs a phenomenal volume of information into a small package and would be interesting to anyone wanting to broaden their knowledge of legal history." Read full review...

Claire White, Law Letter, Law Society of Tasmania, Winter/Spring 2014


Foreword by The Hon Paul D Finn

Bar News, Summer 2013-14

Volume I, Detailed Table of Contents

Volume I, Introduction by J T Gleeson & J A Watson


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Published 3 July 2013
Publisher The Federation Press
ISBN 9781862879058
Australian RRP $99.00
International Price $90.00
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Law - Legal History

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