• Publication Date: July 3, 2013
  • EAN: 9781862879379
  • 1040 pages; 6" x 8⅝"
Filed Under: Legal History

Historical Foundations of Australian Law – Set

Volume I & Volume II


Product Description

Justice McHugh once said that a lack of understanding of legal history was a misfortune, not a privilege. That was an understatement. As well as being essential for any Australian lawyer, the history underlying and informing the Australian legal system is a uniquely interesting amalgam of English, American and local developments.

The two volumes of Historical Foundations of Australian Law set the very highest standards of analysis and scholarship. Each is introduced by a useful and perceptive commentary by James Watson. Together, they contain 31 essays by distinguished judges and practitioners and academics. Although each essay is self-contained, in combination they yield a rich analysis of how Australian law has reached its present state.

The first volume, Institutions, Concepts and Personalities, contains 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 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 second volume, Commercial Common Law, complements the first: distinguished judges, practitioners and academics write on many aspects of commercial practice, often viewed through more than one prism. Thus there are chapters on money and bills of exchange, and cheques and banking, and on the actions often associated with them (notably debt and conversion), and on Lord Mansfield’s contribution to commercial law. There are chapters on how the basic elements of the law of torts and contract came into existence, from a variety of perspectives. There are analyses of privilege, defamation, assignment and implied terms. There are chapters on corporations, agency and insolvency, and a notable one on restitution (by Ian Jackman SC) that poses a challenge to thinking which has become orthodox outside Australia.

These volumes are a very distinguished contribution to Australian legal literature, and the essays will bear reading and re-reading.

* Click here for information about Volume I – Institutions, Concepts and Personalities

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

Volume I – Institutions, Concepts and Personalities

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


Volume II – Commercial Common Law

Sketch of Writs
Editors’ Notes
Selected Legal Texts
Table of Cases
Table of Statutes

A Sketch II: Praecipe to Negligence & Contract
J A Watson

A Note on the Curious Incidents of Debt
C J R Duncan & J A Watson

Trespass, The Action on the Case and Tort
M Lunney

Detinue, Trover and Conversion
J Randall & B Edgeworth
The Sources of Defamation Law
D Rolph

Legal Professional Privilege
P Brereton

Milestones in Negligence in the 19th and Early 20th Century
B McDonald

Contract Development Through the Looking-Glass of Implied Terms
E Peden

Why the History of Restitution Matters
I M Jackman

Lord Mansfield
B R Kremer

Money and Bills of Exchange
A McNaughton

The History of Cheques and Banking
A McNaughton

G J Tolhurst

R A Dick

M Wibisono

The History of Bankruptcy and Insolvency Law in England and Australia
J L B Allsop & L Dargan


“More importantly, each of its essayists is a person whose contribution is worth reading. … [The volumes] create an important and valuable resource and make accessible to Australian lawyers, students and judges, in a convenient way, an array of materials which would otherwise require resort to a range of disparate texts and law review articles.”

“This book is a rich source of reference … I venture to say it is unique. I certainly hope that it will find its place among legal history courses in more than one law school and in more places than Sydney.” – Chief Justice Robert French launching both volumes, 22 August 2013

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