AN INTRODUCTION TO
THE COMMON LAW
PHILIPPS-UNIVERSITÄT MARBURG, 2008
Introductory
In our first class, we shall visit some of the most important law-related web sites in the United
Kingdom and Australia :
www.austlii.edu.au
www.aph.gov.au/senate/general/Constitution/index.htm
(The above site is most easily reached through www.gg.gov.au -> Links -> The
Australian Constitution)
www.bailii.org
www.hcourt.gov.au
www.parliament.uk
Then we shall move on to consider …
2
Topics for discussion in class
A. CRIMINAL LAW
1. The mens rea (subjektiver Tatbestand) in murder
Director of Public Prosecutions v. Smith [1961] AC 290, 323-335
Parker v. R (1963) 111 CLR 610, 632f
Criminal Justice Act 1967 (U.K.) ss 8, 106
Questions to consider :
What was the law laid down in Smith?
Did the High Court of Australia agree with the House of Lords?
What did the Act do?
To which parts of the United Kingdom does s 8 of the Act apply?
2. Can a man rape his wife?
R v. R. [1992] 1 AC 599, 612-623
Questions to consider :
What was the law of England before this case?
What was the law of England after it?
Should the law have been changed in this way?
Do you happen to know when a similar change was made in German law, and how?
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B. PUBLIC LAW
3. Parliamentary Sovereignty, Conventions and the Rule of Law
Blackshield/Williams, Australian Constitutional Law and Theory (4th unabridged ed.,
Federation Press, Sydney 2006), pp. 100-124
Questions to consider :
What are the concepts of parliamentary sovereignty, conventions and the rule of law?
Do you agree with the criticisms of the rule of law?
How are civil liberties traditionally protected in England? Is this adequate?
4. House of Lords reform – the legislative House
House of Lords Act 1999 (U.K.),
available at : http://www.bailii.org/uk/legis/num_act/hola1999166/s1.html (use the
“next” button to find the remaining sections)
http://www.dca.gov.uk/constitution/holref/index.htm
http://www.dca.gov.uk/consult/holref/index.htm
http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf, pp. 41-42
Questions to consider :
What reforms of the House of Lords as a legislative body have occurred so far?
What are the government’s plans?
Do you agree with them?
5. House of Lords reform – the judicial House
http://www.dca.gov.uk/consult/supremecourt/index.htm
http://www.dca.gov.uk/consult/lcoffice/index.htm
http://www.dca.gov.uk/supreme/index.htm
Constitutional Reform Act 2005 (U.K.) Part 3
available at : http://www.opsi.gov.uk/acts/acts2005/20050004.htm
Questions to consider :
What was the role of the Lord Chancellor and the House of Lords as a judicial body in the
past?
Why does the government propose to set up a Supreme Court?
What is going to happen in 2009?
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6. Federalism
New South Wales v. Commonwealth (“The Incorporation Case”) [1990] HCA 2; (1990) 169
CLR 482, available at : http://www.austlii.edu.au/au/cases/cth/HCA/1990/2.html
Questions to consider :
What was the issue that the Court had to decide?*
What provision of the Australian Constitution did it have to decide it under?
What was its decision?
How did it justify its decision with reference to the history and the language of the
Constitution?
Do you agree with the majority judgment or the dissenting judge?
C. CIVIL LAW
7. Incorporation of terms into contracts
Parker v. South Eastern Railway Co. (1877) 2 CPD 416
Thornton v. Shoe Lane Parking [1971] 2 QB 163
Questions to consider :
What rules of law do the cases lay down?
How does Thornton deal with Parker? (Is Parker still good law?)
8. Frustration (Wegfall der Geschäftsgrundlage) in contract law†
Paradine v. Jane (1647) 82 ER 897
Taylor v. Caldwell (1863) 122 ER 309
Krell v. Henry [1903] 2 KB 740
Law Reform (Frustrated Contracts) Act 1943 (U.K.)
Questions to consider :
How was the doctrine of frustration introduced into English law?
How does it work?
What does the Act do?
*
The issue arose under s 51 (xx) of the Australian Constitution, which you need to find using the hyperlink or the web
site mentioned above.
†
I am indebted to Dr Toni Esposito, LL.M. (Adel.), for the excellent suggestion of including this topic.
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9. Negligence
Cole v. South Tweed Heads Rugby League Football Club [2004] HCA 29 (15 June 2004),
available at : http://www.austlii.edu.au/au/cases/cth/high_ct/2004/29.html
Questions to consider :
What (in outline) were the facts of the case?
What was the order of the Court?
Who won the case?
Who were the dissenting judges?
Who formed the majority?
What difference existed among the majority judges?
10. Law and Equity
Miller v. Jackson [1977] QB 966
Questions to consider :
What (in outline) were the facts of the case?
How did the approach of Lord Denning M.R. ‡ and that of Geoffrey Lane L.J.§ to the
precedents differ?
Whom do you agree with?
Why the plaintiffs not get the injunction they wanted, although some legal right of theirs must
have been infringed or else they would not have got damages?
Does the judgment of Lord Denning M.R. read like one that a German judge might write?
D. THE JUDICIAL PROCESS
11. Stare decisis (the doctrine of precedent)
Fellowes & Son v. Fisher [1976] QB 122
Questions to consider :
Why was the interlocutory injunction (einstweilige Verfügung) refused?
What conflicts appeared to exist in the case law relating to the granting of interlocutory
injunctions?
Why did Lord Denning M.R. not dare to suggest that the House of Lords decision was per
incuriam (by mistake)?
How did their Lordships in Fellowes reconcile the apparent conflicts in the case law?
‡
§
Pronounced as follows : “Lord Denning, the Master of the Rolls”. For short : “Lord Denning”.
Pronounced : “Lord Justice Geoffrey Lane”.
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12. Statutes and stare decisis – a case study : domestic violence
Davis v. Johnson [1979] AC 264 (C.A.)** (judgments of Lord Denning M.R., Sir George
Baker P.†† and Shaw L.J.‡‡ only)
Questions to consider :
What was the effect of B. v. B. [1978] Fam 26 (see at 286f)?
How did Davis deal with that case?
Do you agree with what Lord Denning M.R. said about the diminishing importance of rights
of property since the nineteenth century?
Should judges be able to take such alleged movements in societal values into account when
interpreting statutes?
When is the Court of Appeal bound by its own decisions?
13. Judges making law
Dawson J.,§§ “Do Judges Make Law? Too Much?” (1996) 3 Jud Rev 1
McHugh J.A.,*** “The Law-Making Function of the Judicial Process” (1988) 62 ALJ 15;
(1988) 62 ALJ 116
Questions to consider :
Do these judges think that they make law?
Should judges make law?
When should judges make law?
What risks exist in judge-made law?
Dr iur. Greg Taylor, LL.M.
greg.taylor@law.monash.edu.au
**
The appeal to the House of Lords was dismissed.
Pronounced : “Sir George Baker, President of the Family Division”. For short : “Sir George Baker”.
‡‡
Pronounced :“Lord Justice Shaw”.
§§
Pronounced : “Justice Dawson”.
***
Pronounced : “Mister Justice McHugh”. (“J.A.” indicates a Judge of Appeal.)
††