Sample Essay from Introduction to Law
Question: “To what extent did the concepts and institutions of the Western legal tradition influence
the colony of New South Wales and, ultimately, the development of the Australian legal system?”
The writer has
used key term
from the
question, such
as “Western
legal tradition”,
in their intro
Clear, short
headings have
been used in
the body to
indicate what
part of the
question is
being
answered.
It can be said that the Western legal tradition substantially influenced the
colony of NSW, and ultimately the development of the Australian legal
system, however it is clear the Australian legal system is not a direct
model of the British system. Although it did extract some of the key
components of the British legal system such as the rule of law, jury
system, common law, statute law, and split profession system, it had to be
adapted to suit a different country, different circumstances and a different
population The Australian legal system has developed, based on its
population’s needs, to provide a just and equitable system of law and
government for all Australians.
The writer’s thesis
statement is
expressed clearly
at the beginning
of the
introduction. The
rest of the intro
outlines the main
points which will
be covered in the
essay
The Western Legal Tradition
The Australian and British legal system is founded upon the rule of law
coming from the creation of the Magna Carta1. The English people made
it clear that everyone was subject to the law including the King2, this led
to the creation of a system of parliament3. Elements of the Magna Carta
remain in Australian law today4 and the foundations of freedom laid
down within it have been brought up in many Australian legal cases5.
The development of the rule of law in England came from a desire to
restrain the King’s power6. James I, like many monarchs, believed it was
sedition to limit a King’s power, due to his divine right to rule7, but
lawyers believed that the King’s power was limited to that given to him by
law8, that the King’s powers should be limited to managing good
government and minor aspects of the realm such as coinage, which have
no effect on the restriction of people’s rights9.
… (text missing)
The first sentence
is a topic
sentence which
states the main
point of the
paragraph. Note
the repetition of
the term “rule of
law”, taken from
the intro. Key
terms are used
consistently
throughout the
essay in strategic
areas, like topic
sentences, to
create cohesion
and flow.
Influence on the Colony of New South Wales
On the 28th July 1828, which is known as the date of reception, it was
determined that all applicable English statute and common law was to be
applied to the colonies of NSW and Tasmania10. For most of the 19th
Century the doctrine of repugnancy meant that colonial legislation was
void if it contradicted with English law11, whilst the doctrine of paramount
1
Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 47.
Ibid.
3 WS Holdsworth, A History of English Law, (Methuen & Co, London, Vol 1, 3rd edn, 1922) 54, extracted in Prue Vines, Law
and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 47.
4 Vines, above n 47.
5 Prisoners A-XX (inclusive) v NSW [1995] 38 NSWLR 622 as extracted in Prue Vines, Law and Justice in Australia (Oxford
University Press, Melbourne, 2nd ed, 2009) 48-50.
6 Vines, above n 98.
7 Somerville, Politics and Ideology in England, 1603-1640, (Longman Group, United Kingdom, 1986) 100-107 as extracted in
Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 99.
8 Ibid.
9 Ibid
10 Australian Courts Act 1828 (Imp) s 24.
11 Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) p 174.
2
To support their
discussion, the
student has
used outside
sources,
indicated by
footnotes.
These sources
have been
paraphrased,
rather than
quoted, which
contributes to
the fluid writing
style.
The student
restates their
thesis
statement
clearly and
decisively in
their
conclusion, as
well as
summing up
their main
points
force meant that any applicable English Act was also in force in the
colony depending upon circumstance12. In South Australia the
repugnancy regulations were implemented so excessively that creating
legislature became impossible13. This led to a formalisation of Britain’s
regulation over the colonies’ creation of laws14. However, it also led to
each colony having power to amend their individual constitutions15.
… (text missing)
The circumstances of the colony were different from that of Britain and
this was significant in creating a departure from English law16. In English
law any person convicted of a crime were “civilly dead”17, meaning they
had no access to the courts. Australia was a penal colony and much of its
population were convicts, which meant this would limit much of the
population access to the legal system18. In 1788, two convicts, Henry and
Susannah Kable, were allowed to bring the first civil action in Australia19.
This was the first of many distinctive differences as Australian law
became established in its own right, no longer merely a direct derivative
of the English legal system.
… (text missing)
Conclusion
Although established on the same model as the British legal system, and
initially under its control, the Australian legal system has developed
independently. Although it includes many major aspects of English law
such as a jury system, rule of law, common law, statute law, and a split
profession system, it was adapted to suit a different country, different
circumstances and a different population.
By 1860, although still governed by the monarch, all Australian colonies
except for Western Australia had an upper and lower house of
parliament20, and Britain became decreasingly involved in Australia’s
affairs and legislation. Indeed many laws passed in Australia were
radically in advance of Britain21 22. The final detachment of Australia’s
legal system from that of Britain’s came when Australia successfully
terminated Britain’s power to create legislation binding within Australia,
terminated Britain’s restrictive ability on legislation of States, and
terminated the ability to make appeals to the Privy Council23.
12
These two
paragraphs end
with concluding
sentences which
directly link back
to the thesis
statement
expressed in the
introduction: that
Australian law is
impacted by, but
not identical too,
the British
system.
The student’s
final statement
highlights the
substantial
difference
between the two
legal systems,
with phrases such
as, “decreasingly
involved and
“final
detachment”,
ending the essay
off on a decisive
note.
Ibid.
Ibid.
14 Colonial Laws Validity Act 1865 (Imp) s 2.
15 Vines above n 45.
16 David Neal, The Rule of Law in a Penal Colony: law and power in early New South Wales, (Cambridge University Press,
1991) 24-25; 63, 76, as extracted in Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed,
2009) 165-166.
17 David Neal, The Rule of Law in a Penal Colony: law and power in early New South Wales, (Cambridge University Press,
1991) 24-25; 63, 76, as extracted in Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed,
2009) 4.
18 Ibid.
19 Ibid.
20 Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 185-187.
21Ibid.
22 Commonwealth Franchise Act 1902 (Cth) S 3.
13
23
Australia Act 1986 (Cth) s 11.