UTS: LAW
70115: Perspectives on Law
Class Notes
Johanan Ottensooser
Spring 2009
Johanan Ottensooser
Spring 2009
1
Contents
Introduction ..................................................................................................................... 4
Seminar 2 – Learning and Assessment Skills: thinking critically and analytically, legal problem
solving, life-long learning, seminar participation ............................................................................... 4
Seminar 3 – Ethical Perspective: what is it and what to do? .............................................................. 7
Seminar 4 – Learning and Assessment Skills (c): Legal Writing and Referencing ............................. 10
Perspectives (A) Philosophy and Culture (i) Philosophy ................................................... 12
Seminar 5 – Philosophical Perspective (Jurisprudence) (a): traditional approaches........................ 12
Seminar 6 – Cross Cultural Perspective (a): common law – not the only legal system .................... 15
Perspectives (B) History (i) England ................................................................................. 18
Seminar 7 – English (Legal) Historical Perspective (A): setting up the common law shop ............... 18
Seminar 8 – English (Legal) Historical Perspective (B): equity, the new kid on the block ................ 21
Seminar 9 – English (Constitutional) Historical Perspective (A): Magna Carta and Distortion ......... 23
Seminar 10 – English (Constitutional) Historical Perspective (B): What was passed on? ................ 25
Perspectives (B) History (ii) Australia .............................................................................. 30
Seminar 11 – Australian (Legal) Historical Perspective (A): A clash of historical perspectives –
British colonisation/invasion of NSW ............................................................................................... 30
Seminar 12 – Australian (Legal) Historical Perspective (B): Setting up the legal shop in NSW ........ 31
Seminar 13 – Australian (Legal) Historical Perspective (C): Reception and Repugnancy ................. 33
Seminar 14 – Australian (Constitutional) Historical Perspective (D): the Federation and
Independence Journeys .................................................................................................................... 34
Seminar 15 – Australian Constitutional Perspective: Getting to know the Australian Constitution 35
Perspectives (A) Philosophy and Culture (ii) Aborigines and Immigrants .......................... 37
Seminar 16 – Cross Cultural Perspective (B): recognition of Indigenous customary laws ............... 37
Seminar 17 – Cross Cultural Perspective (C): what access and for whom? ...................................... 38
Seminar 18 – Social Justice Perspective: Moving to a wider view (re: Aboriginal people) .............. 39
Perspectives (C) the Legal Profession .............................................................................. 40
Seminar 19 – Legal Players’ Perspective (A) – looking from the Inside (Judge and Jury) ................. 40
Seminar 20 – Legal Players’ Perspective (B) – looking from the Inside (Jury and the legal
practitioner) ...................................................................................................................................... 42
Perspectives (D) International Law.................................................................................. 43
Seminar 21 – International Perspective: international law knocking on Australia’s door ............... 43
Perspectives (A) Philosophy and Culture (iii) other frames .............................................. 45
Seminar 22 – Philosophical Perspective (B): criticism and beyond .................................................. 45
Seminar 23 – Law and Culture .......................................................................................................... 46
Bibliography ................................................................................................................... 47
Johanan Ottensooser
Spring 2009
2
To Print:





This
Website
Jurisprudence
BLE on const.
Graduate attributes
Johanan Ottensooser
Spring 2009
3
Introduction
Seminar 2 – Learning and Assessment Skills: thinking critically and
analytically, legal problem solving, life-long learning, seminar participation
29th July 2009
Page 7-16
NB: Consequentialism, non-Consequentialism and the framework of ethical analysis
Activities and Discussion Questions
1. Re: Study plan
a. Study plan as fluid, to plan is a little too optimistic. However, for the Wednesday
class, I do have Tuesday off to prepare. For the Monday class, I have Friday (and, if
the work is too much for a day, the weekend).
b. Create a compulsion (e.g. my website)
2. Re: Seminar Participation
a. Do the readings
Come with arguments/potential answers for discussions planned (with references)
Respect the opinions of others
Active Listening
engaging specifically with the discussion topic (bringing in external sources)
see subject outline
3. What do you think critical thinking and reading involves (Re: Robb Watt1)?
a. Critical thinking and reading involves the selective gathering, interpretation,
synthesis and analysis of information with the aim of extracting an argument or
pattern.
b. Involves a balance of cynicism and pragmatism.
4. Re: Cereal e.g.
a. This claim does not provide sufficient information to come up to scrutiny. Firstly,
recommended requirement for whom, how do you know who I am? Secondly, does
this bowl of cereal include milk? Thirdly, how did they come up with the numbers?
Finally, standard bowl? %age of other dietary bits and pieces? Who is making the
claim?
b. The accompanying visual image should be taken with a grain of salt, since the
statement aforementioned is so fluffy.
c. Nb: Daily dietary requirements are a government standard2
5. Re: Wikipedia
a. Wikipedia is a wonderful first resource, however, since it can be edited by anyone, it
is not accurate or quality controlled enough to be of reference. However, it can
1
Rob Watt The Development of Critical Analytic Skills 2006).
National Health and Medical Research Council, Dietary Guidelines for Australian Adults (2003) Australian
Government <http://www.nhmrc.gov.au/PUBLICATIONS/synopses/_files/n33.pdf> at 8/08/2009 2009.
2
Johanan Ottensooser
Spring 2009
4
6.
7.
8.
9.
10.
11.
provide an interesting summary of a topic, as well as links to further, accurate and
peer-reviewed references.
b. It is wonderful for first reference.
Rob Watt3
“That the individual shall have full protection in person and in property is a principle as old as
the common law; but it has been found necessary from time to time to define anew the exact
nature and extent of such protection. Political, social, and economic changes entail the
recognition of new rights, and the common law, in its eternal youth, grows to meet the new
demands of society”4
a. The quote above does not create a right to privacy. However, it provides a clear,
succinct and morally sound argument for the creation of rights, thus allowing for the
subsequent common law creation of the right to privacy.
b. Whilst the quote in and of itself is quite powerful, the fact that it was an Associate
Justice does lend it some greater weight, since it was born out of an intimate
knowledge of law, and the philosophy and morality of law.
Rob Watt5
a. Julius Caesar, whilst highly educated (for the time) was also not a zoologist in any
way. His speciality was not in this field, and, thus, his treatise on Elks should not be
taken too seriously.
b. However, it is an interesting analysis of his background, specifically his knowledge of
animals, and his observation of traditional practices (which, too, should be verified).
c. It does not, however, sound like he witnessed these events first-hands, but, rather,
has heard of the hunting practices, rather than observed them, further reducing the
relevance of this text.
Re: Sean Connery “Independence Day not far off for Scottish bravehearts”6
a. This article, whilst seemingly informed, is heavily biased by the fact that the author
is a proud Scottish nationalist. Furthermore, he’s not a journalist, and, thus, might
not have the research integrity which is expected of published articles.
Re: Defn analytical thinking
a. Critical thinking is purposeful and reflective judgment about what to believe or what
to do in response to observations.
b. Cynical synthesis of sources in decision making
Defn: IRAC
a. Identify Issues and relevant facts, Research or review, Application, Conclusion
(conclusion = zone for HD)
b. A bit too fluffy, not profound. Basic.
Re: Doggy
(1) A dog that is in a public place must be under the effective control of some competent
3
Rob Watt The Development of Critical Analytic Skills 2006).
Warren & Brandeis, 'Right to Privacy' (1890) 4 Harvard Law Review.
5
Rob Watt The Development of Critical Analytic Skills 2006).
6
Sean Connery,'Independance Day not far off for Scottish bravehearts', Sydney Morning Herald (Sydney), 10
April 2008, 1.
4
Johanan Ottensooser
Spring 2009
5
person by means of an adequate chain, cord or leash that is attached to the dog and that is
being held by (or secured to) the person7 – Companion Animals Act 1998 (NSW)
a. No? because it functioned as a lead
b. Yes? Because it is a public place, and not an “adequate chain, cord or leash”
c. Is it still a public place?
d. Does effective control relate to dog temperament?
e. “adequate” -> re: mischief rule to define (able to stop the dog from running off)
f. Furthermore, the presence of a ranger or other people does not lessen the illegality
g. If it was not her dog, and therefore she did not know her as well, I would not
recommend this action, since she is not aware of the dog’s temperament or
strength…? Perhaps irrelevant to advice…
h. Lightly illegal, no one would care/convict
i. IRAC method
I – Is the restraint sufficient?
R – Companion Animals Act, section 13,(1) and maybe (2)
A – Is it effective, is it adequate, is the dog dangerous?
C –Could but wouldn’t?
12. Re: Lifelong Learning
a. With constantly developing and changing law, it is critical to keep up to date, on
changing morality, technology, law, attitudes and practices
b. Via: journals, newspapers, etc.
7
Companion Animals Act 1998 (NSW). S13
Johanan Ottensooser
Spring 2009
6
Seminar 3 – Ethical Perspective: what is it and what to do?
3rd August 2009
Discussion Starters
1. What do you think ethics means? What does acting/thinking ethically mean?
a. Ethics are the amalgamation of generally accepted moral principles in society/a
profession.
b. Thinking/acting ethically means acting/thinking within the guidelines of the
appropriate ethical frames, with individual discretion to soften the rigidity of ethical
rules.
i. Or, thinking with a knowledge and appreciation of that which is generally
accepted, and weighing the action against these accepted principles and
your own morality.
c. Extremely based on individual cases
2. Why Study Ethics?
a. Considering our future profession enforces legislated societal ethics, an appreciation
of the roots and causes for these laws, as well as their aim, is necessary in their
application.
b. Evade lawsuits via ethical code as deterrent (person v company)
c. Teach via Socratic method
3. Re: “A Time to Live and a Time to Die”8
a. Yes
b. Two criteria
i. I do not consider the other twin truly alive
1. It is stated that she had a dying brain, no heart or lungs etc.
2. She was parasitic off the other twin
ii. It is impossible to save both of their lives, and, in this case, the possibility of
one whole life outweighs the short life that both twins have w/out surgery
iii. Self defence, necessity, life support, reasons given by judges in rulings.
c. Yes
i. I think it is the moral choice, 1 life > 0
d. Yes, since it is the court’s role to preserve the rights of the child who could survive.
i. I.e. child abuse cases
e. The parents? Their opinions are, however … questionable because of their fragile
emotional state…
i. Can be thought of like court taking away an abused child to care for its
rights … hard but right...?
4. Re: “Fine way to raise money”9
a. Yes, since it provides the dual purpose of reducing speeding (as given by evidence)
and raising funds
b. No, since they target low risk high occurrence areas
5. Re: “The Case of the Speluncean Explorers”10
8
9
'A Time to Live, and a Time to Die',Sydney Morning Herald (Sydney), 25 September 2000.
Katherine Danks,'Fine way to raise money', Ibid., 6 January 2008.
Johanan Ottensooser
Spring 2009
7
6.
7.
8.
9.
a. I believe that they acted unethically, but morally … that is, in a way which is contrary
to the norm, but for the preservation of human life.
b. Yes, a consequentialist view would pardon the explorers, a purely nonconsequentialist view would not excuse their actions.
i. Consequentialism11 looks at actions in the light of their situation and causal
links
ii. Non-Consequentialism12 rejects the above and states that ethics are
concrete, and that actions are moral or immoral, regardless of their
consequences
c. Ask for advice and didn’t get it therefore cant prosecute
d. Re: customs
RE: Diplomat case study (torturing a criminal to save a life)
a. I’d like to say I think it is immoral, but I actually think that in this case, the ends do
justify the means… I know this is not the legal way of thinking, and it is morally
relativistic, but you can also say that a criminal forfeits his rights when committing a
crime, and that in saving an innocent life, the act is justified.
b. The fact that it works makes it justifiable...?
c. Yes, as above
Re: Hypocrisy of defending someone you disagree with (Newlawyer and alcohol)Via “Ethical
Decision-making Framework”13
a. Framework: awareness, application of standards and principles, practical
implementation
b. I think that it is her role as a lawyer to defend the client in the best way legally
possible, disregarding personal moral inclination. A lawyer should only back out if
he thinks that his moral differences will impede on the quality of his work, especially
in criminal work.
c. No
d. The limitations of the adversarial approach come as above
Re: Expansion of Adversarial Approach to other forms of ethical decision making
a. NB: Defn. an “amoral” approach to law, whereby the lawyer isolate himself from
his own morality in defending the lawyer
b. No … i.e. Nuremburg
i. It would only work in very specific cases
Re: Plagiarism
a. They should both be penalized, since one is guilty of plagiarism and the other is
stupid for giving his/her work out before the due date
b. However, the plagiarist should be penalised more…
c. Prisoners dilemma situation occurs
d. Via framework
10
Lon L. Fuller, 'The Case of the Speluncean Explorers' (1949) 62(4) The Harvard Law Review Association.
Noel Preston, 'Ethical Theory: An Overview', Understanding Ethics (3rd Edition ed, 2007) 35-43, 36.
12
Ibid. 40.
13
Christine Parker and Adrian Evans, 'Introduction, The Ethical Decision Making Framework', Inside Lawyers
Ethics (2007) 3-6, 10-17.
11
Johanan Ottensooser
Spring 2009
8
i. Issues: plagiarism, actors: students, university
ii. Application of standard: personal , industry-wide and university
iii. Practical implementation: implementation of formal disciplinary procedures,
failing, possible future effects
10. Re: Legal Ethics
a. Lawyers should be subject to universal ethical standards as well as a higher set of
standards considering that they are society’s agents for the preservation of ethics…?
b. History (pure theory of law, social contract)
c. Different industry’s different roles
d. Looser because of advocacy
e. Law for lawyers
f. Plurality
g. Wiki-ethics
h. Kafka?
Johanan Ottensooser
Spring 2009
9
Seminar 4 – Learning and Assessment Skills (c): Legal Writing and
Referencing
5th August 2009
Re: soul theft (plagiarism in Jewish Law), academic standards
Discussion Starters
What makes a good legal essay?
1. What elements do you think make a good academic essay? How well does your opinion
match up with the criteria indicated in the “assignment feedback sheet”?
a. I believe the key elements in a good academic essay are:
i. Readability
ii. Relevance (answering the question, no red herrings, etc.)
iii. Structure (logical, arguing the point by laying the foundation, outlining the
evidence and drawing relevant conclusions)
iv. Evidence
v. Brevity
vi. Referencing
b. The criteria given by marking outline:
i. A sustained argument
ii. Knowledge of the topic
iii. Identification of the issues
iv. Critical analysis
v. Development of argument
vi. Background reading
vii. Structure
viii. Style
ix. The criteria seemed to divide structure, evidence and relevance into IRAC
2. Re: Plain language. What is this? What are its advantages?
a. Writing with the audience in mind, seeking brevity, ease of readability of both
language and concept (breaking complex concepts down into their simple
elements). “The practice of writing … in a clear and simple style”, “with the needs of
the reader foremost in mind”14.
b. Its advantages are wider reader base, increased trust, etc.
c. Re: Kafka’s “the Trial”
Referencing
3. What are the functions of footnotes? The faculty has adopted the referencing style set out in
the Australian Guide to Legal Citation (2nd ed, 2002). Rewrite the following set of footnotes
to comply with the faculty’s preferred style:
a. Footnotes serve to provide reference to sources without disrupting the flow of the
text, as well ad providing addition non-essential information or clarifications.
14
Michele M Asprey, 'What is Plain Language?', Plain Language for Lawyers (3 ed, 2003) 11-15, 59, 11-12.
Johanan Ottensooser
Spring 2009
10
4. What is the purpose of a bibliography? What works can be included in a bibliography?
Rewrite the following according to AGLC.
a. Bibliography’s serve as a tool both for extra reading, and to show which
books/sources have contributed to the work, allowing for an analysis of reliability.
5. Outline in clear terms the rules against plagiarism. What is the rationale for these rules?
a. Don’t plagiarise or you will get 0 and have formal disciplinary measures taken which
can affect your whole legal career.
b. Plagiarism dilutes the degree.
6. Assess plagiarism in the following extracts:
a. This is classic plagiarism
b. This is not plagiarism, since it was referenced (assuming this amount of quoting is
allowed)
c. Not plagiarism, referenced incorrectly
d. Since the quote is of a primary source in a secondary source, but consists only of the
primary source, I’d reference the primary source.
e. This is still plagiarism, even though basic words were changed
f. This is borderline, i.e. the phrase “imperial shackles” in the context of the sentence
g. This is not plagiarism
7. Re: 3.9. How would these assignments be dealt with under the UTS University Rules? What
consequence might befall these students in terms of their future legal careers?
a. No clue
b. Not pass bar?
8. Re: Plagiarism in exam.
a. It still is plagiarism. If the author is mentioned in paraphrasing then it should be fine
Putting it altogether
9. Mark the sample essay with comments
a. I’d fail the student with 4 out of 10 because it is inconsistent, mostly irrelevant and
badly written.
b. 0 because of extensive plagiarism
Where to from here?
3. “The impact of plagiarism on admission to the bar” Re Liveri [2006] 15
a. Plagiarism can hurt your chances at achieving the bar.
b. They look at16
i. the seriousness of the plagiarism;
ii. the number of times that plagiarism had occurred;
iii. the age of the applicant; and
iv. the applicant’s unwillingness to acknowledge the seriousness of her
misconduct
15
Re Liveri [2006] QCA 152, ('The impact of plagiarism on admission to the bar').
Anita Jowitt, 'The Impact of Plagiarism on Admission to the Bar: RE LIVERY [2006] QCA 152' (2007) 11(2)
Journal of South Pacific Law 213-217, 215.
16
Johanan Ottensooser
Spring 2009
11
Perspectives (A) Philosophy and Culture (i) Philosophy
Seminar 5 – Philosophical Perspective (Jurisprudence) (a): traditional
approaches
10 August 2009
Discussion Starters
1. What is Jurisprudence?
a. The study of the philosophy of law, the relationship between law, ethics and
morality and the study of the legal ideal; what it should seek to do and how.
b. As apposed to substantive law (and procedural law), what law is now
i. Dialogue behind which substantive law is created
ii. Where does law fit into society/our lives?
c. Thought processes and histories behind effected procedure/current legal zeitgeist
2. Why study jurisprudence? (via student and professional)
a. For a student to understand the application of law, he must understand its roots and
aims, one of the primary goals of jurisprudence
b. Furthermore, it “plays a key role in inculcating these [use, analysis and criticism of
law] and related abilities [to the law student]”17.
c. For the professional, it allows for a deep critical understanding of the law.
d. Put the law before your client?
3. What is ‘morality’? And can we talk about a ‘community morality’ (ethics?) or an ‘Australian
morality’?
a. My definition of morality involves the personal, individuated set of codes which
define the actions of an individual
b. McCoubrey and White’s Textbook on Jurisprudence outline’s community morality
via Hart and Devlin’s debate
i. Devlin’s model
1. Derived from Millsian’s “Harm principle” and Mill’s rebuttal to
positivism, which declares the morality of laws paramount
2. Depends on the morality of the “average man”, utilitarian18
3. Consists of the following three principles:
a. Maximum freedom compatible with social integrity
b. Law not changing with every ‘subversion’ of morality
c. Privacy held as paramount
ii. Hart’s model:
1. Libertarian: that laws must not only prevent harm, but defend the
liberties of its subjects
2. Rebuts “average” morality with the defence of minorities19
iii. Theories:
17
Denise Meyerson, 'Introduction: "What is Jurisprudence?" and "What is the point of studying
Jurisprudence?"', Essential Jurisprudence (2006) 1-2, 6-8, 6.
18
Hilaire McCoubrey and Nigel D White, 'The enforcement of morality: Hart and Devlin', Textbook on
Jurisprudence (3rd edition ed, 1999) 53.
19
Ibid. 54.
Johanan Ottensooser
Spring 2009
12
1.
c. Australian morality would be harder to define
i. Stolen generation  utilitarianism, domination of minorities
ii. Hart style, “salad bowl”
d. Morality v ethics re: imposition
4. To what extent do you think law overlaps with morality? Can you think of examples of laws
that reflect morality? What about examples of laws that might be considered to be ‘morally
neutral’? And can you think of any examples of moral principles which have not found
expression in our law?
a. Law is created to protect the rights, and prevent the harm of its subject. Its subjects
have individual, societal, religious, etc, moral sets. Thus, since the law represents
these subjects, it will often reflect the morality of the zeitgeist in which it was
created.
i. Social contract
b. Same sex marriage, German Sunday labour restrictions, Christmas holidays, transfer
payments and minimum wage
c. Parking fines? Citizenship?
d. Honesty, being altruistic, friendship, love,
5. What jurisprudential question is highlighted by the Grudge Informer cases20? Can you point
to more modern examples where this issue has been played out? Compare and contrast the
way in which a natural law thinker would resolve this issue compared with a legal positivist.
a. Informers prosecuted?
b. Intent
c. Given that the law is not equally enforced, is it still valid?
d. Secret law
i. Is a law that is enforced immorally still ok?
ii. Kafka
e. Water restrictions, dobbing. Noise complaints, etc.
f. Natural law vs. Positivism
i. Definitions
1. Natural law is law that derives its authority from a higher power or
greater sense of ethical responsibility
2. Positivism looks at the law as written, and to its congruency
ii. A natural lawyer would say that since the laws aren’t enforced equally they
aren’t just, and are invalid
iii. A positivist would say that administrative difficulties make it impossible to
indict everyone, and since those dobbed on are guilty of the crime as
written, they should be held as such
1. Unless perhaps there is a statement in the constitution on justness?
6. Do you think the criminal law should be used to enforce morality? Compare and contrast the
view expressed on this question by the Wolfenden Committee in ’57, Professor Hart and
Lord Devlin. We often hear about ‘victimless crimes’, what does this mean? Can you think of
any examples?
20
Patrick Parkinson, Tradition and Change In Australian Law (Third Edition ed, 1994) 56-57.
Johanan Ottensooser
Spring 2009
13
7.
8.
9.
10.
11.
a. No, since morality differs between people and law is meant to be egalitarian
b.
c. Small scale counterfeiting, some scamming
Do you think there are any situations where you are justified in disobeying the law? If so, on
what ground?
a. Yes; legal
b. i.e. Nuremburg law is not a defence
c. when obeying the law will break morals and disobeying will not increase social
disorder re: St Thomas Aquinas
What do you think a judge should do when confronted with an immoral or otherwise
unpalatable law? Analyse in the light of the Berlei 4 case.
a. Raise the issue in judgement, perhaps refer the law to the high court/parliament
b. Re: bra ad defacement
c. Not an immoral law, an immoral example perhaps? There were better ways of doing
this
To what extent (if any) do you think the law shapes morality? Can you point to any
examples?
a. Yes, since morality is often personal, and a lot of personal respect is given to law
b. Re: resale of digital wares
Re: Speluncean explorers. Are they guilty? Which argument do you agree with?
a. They are guilty of the law as written, however, the jurisdiction is arguable and the
case for the executive action is quite strong
b. I agree with the principles set out in 1, the rebuttal is interesting posed in judge 2,
and the third ruling, I believe, is the strongest ethically.
c. In my moral ethic, huge differences, re: application to law
See 5b, BLEthics
Johanan Ottensooser
Spring 2009
14
Seminar 6 – Cross Cultural Perspective (a): common law – not the only legal
system
For 12th August 2009
Discussion Starters
1. Australia belongs to a family of legal systems known as the common law legal system. Can
you identify four other common law countries? Now, identify five civil law countries.
a. Common law
i. Australia
ii. United States of America
iii. Canada
iv. England
v. Nigeria*
b. Civil Law
i. Israel
ii. Germany
iii. France
iv. The Netherlands
v. Italy?
2. Compare and contrast the common law legal system with the civil law legal system in the
following matters21:
History
Sources of law
Attitude to precedent
Method of trial
Role of the judge
Training and education of
judges
Anything else?
Common Law
Medieval England
 King’s court/judges
 Equal punishments for
equal crimes
Legislation and Precedent
Sacrosanct
Clearly delineated pre and
during trial
Mediator
 On points of law
 On which evidence can
be heard
Through the legal system,
elected
Civil Law
18th C France
 Based on
Roman/French civil
codes
Codes
Relatively irrelevant
All trial as one
Inquisitor
 Can call and question
witnesses
 Can lead investigation
Further training in university



Each witness has their
own lawyer
There is often a panel
of judges questioning
Each case shapes the
codes
21
Australian Law Reform Commission, Review of the Adversarial System of Litigation, Issues Paper No 20
(1997).
Johanan Ottensooser
Spring 2009
15
3. In what ways does the Australian legal system differ from the common law legal system?
a. Inquisitorial family courts
b. Reference to international precedence
c. Acceptance of international treatises
d. High court acceptance of different arguments
4. Over the years, we have borrowed certain aspects from the civil law legal system. Can you
find any examples of these “borrowings”? Do you think there may be a limit to how much
we can borrow from the civil law legal system? Give reasons.
a. We have codified several of our common laws:
i. Patent Act22
ii. Crimes Act23
b. We can/should only borrow slightly from the civil law system to preserve the
sanctity of precedent …?
5. Apart from the common law legal system and the civil law legal system, are there any other
families of legal systems? Give an example of where each of these operates. Briefly consider
some of their distinguishing characteristics.
Legal Family24
Socialist
Location
Former USSR
Far Eastern
China
Muslim, Hindu and Jewish
Nigeria, Saudi Arabia
Black African
Madagascar
Distinguishing Characteristics
Based on Romano-German law
Focusing on Marxist-Leninist
ideals, such as collectivised
production
Purpose of law is different,
much less used, similar to Japan
Based on “natural law” agreed
upon by religious hierarchy
Principle goal is the
maintenance of harmony rather
than the adherence to the law
6. Distinguish between a legal system and a legal tradition.
a. A legal system is the structure within an the manner of practice within a nation
b. A legal tradition is the historical and political dialogue behind the legal system
7. What are the key characteristics of the western legal tradition?
a. The egalitarian ideal of law
b. The aim at justice
c. The separation of church and state
d. The provision of rights
e. Autonomy of law
f. Centrality
g. Moral authority
8. How may these key characteristics be used to distinguish the western legal tradition from
other legal traditions?
a. Under the socialist tradition of law, the party is above the law
22
Patents Act 1990 (Cth).
Crimes Act 1900 (NSW).
24
Rene David and John EC Brierley, Major Legal Systems - The World Today (3 ed, 1985) 26-31.
23
Johanan Ottensooser
Spring 2009
16
b. Under the black African tradition, the aim is at cohesion, not justice
c. Under the Muslim tradition, law and religion are inexorably linked
d. Under the far eastern tradition, the provision of rights is not central to the law,
rather, the control of the populace is more central
9. Thus far in your studies you would have encountered several meanings of the term
“common law”, what are these? Similarly, you would have encountered more than one
meaning of “civil law”, what are these?
a. Common law
i. Judge-made law
ii. The common law (British based) legal system
b. Civil law
i. Civil cases, (suing, person v person)
ii. Civil law system (Continental European)
Johanan Ottensooser
Spring 2009
17
Perspectives (B) History (i) England
Seminar 7 – English (Legal) Historical Perspective (A): setting up the
common law shop
For 17th August 2009
Psychopathic cabbie
Local court to king’s court via writ and general Eyre
Curia Regis/King's
Court
King's Justice
The King
On Eyre
Common
Pleas
King's
Bench
Exchequer
Trial by Jury
Oath/Ordeal
Trial by Battle
• English
• Normans
• See Table below
for list of
precursurs to the
jury system
Other Notes
 The Provisions of Oxford (1258):
o The barons limited the King’s ability to write new writs in order to limit the power of
the common law and reduce the redistribution of court fees to the king.
o Replaced with the Provisions of Westminster
o Overturned by a Papal Bull and the “Dictum of Kenilworth”
 Statute of Marlborough (1267):
o Prevented citizens from recovering damages in any means but through the court
system
Discussion Starters
1. Re: First Year Law Student. What does history have to do with law? How will history help
me further an understanding of the Australian legal system? What are the challenges in
teaching legal history? See readings p116
a. Common law, and, thus, Australian law, has developed over the centuries, rather
than being spontaneously created. Knowledge of the history of legal tradition
allows the law student to understand the dialogue behind the current legal system.
b. This will further an understanding of the legal system with an understanding of
historical “accretions”25 which otherwise seem baseless.
c. Ensuring a chronological understanding which also highlights the development of
the current system rather than focusing on irrelevant details
25
Patrick Parkinson, Tradition and Change In Australian Law (Third Edition ed, 1994) 61.
Johanan Ottensooser
Spring 2009
18
2.
3.
4.
5.
6.
26
d. Re: English History
i. Same as Australian
ii. History re: critical analysis
The Norman Conquest in 1066 has been described as a “cataclysm of the first magnitude” in
English legal and constitutional history. Why?
a. The accretion and centralisation of law
b. The idea of common law rather than local law
c. Local rulers given power via feudal system
What is feudalism? What was its significance for legal and constitutional development in
England?
a. Feudalism is a set of delegated siesin’s26
i. The epitome of the social contract
ii. Usage of land for tithes, duties and fealty (economic and social connection
between lord and tenant/serf)
iii. Each level is dependent on a higher one until the king
b. Beginning of land ownership, rights and royal dominion
c. Defn: curia Regis, general Eyre
d. Before:
i. St Augustine
ii. Family
What was the writ system? What were the forms of action? What impact did these have on
the development of common law? Why are actions on the case considered to be such
important actions in the development of the English Common law?
a. (re: provisions of oxford) Henry gave this power to the courts. Function changed to
summons
b. The writ system was a system of formalised legal actions to bring forward an action
in the royal court.
c. The forms of action were formal and complex forms written by the Royal court
through which an action might be brought
d. These instituted the formal writ system into the common law, and, therefore,
?limited and organised the actions brought
e. ? re: provisions of oxford, power of the king v power of the barons, allowed for the
development of equity, are still used as summonses, allowed actions to skip local
court and law and go straight to the royal court  appeals processes?
What were the older customary modes of proof? If you were a litigant in that time, would
you be content with those modes of proof? Define: Compurgation
a. Oath, compurgation and ordeals
b. Yes, as that was what, at the time, was considered binding, as oaths had more
weight &ct.
Trial by jury is seen as quintessentially English: is it? Assess the contributions of the
following:
a. No, there were many influences
J H Baker, An Introduction to English Legal History (4 ed, 2002) 229.
Johanan Ottensooser
Spring 2009
19
The Development of the Jury System
The Franks
Under the Frankish Kings, higher society members were tried by
the king’s court, in a jury-like system – the “germ of trial by jury”
whereby a “peculiarly Frankish” tradition was “transplanted to
England, where it flourished”27
The Normans
A method of inquest used in the trial of higher peoples (dukes,
kings etc.)28
King Henry II
“the originator of the jury as a regular judicial instrument, first in
Normandy and later in England. It was only after Henry came to
the English Throne that what had been a royal monopoly became a
part of the common law”29
King John
Magna Carta (after the disputes with the barons) clauses 17-22,
“that peers should try their people”
Medieval English litigants
From Anglo Saxon kings30
The Fourth Lateran Council
Cannon 18 of the fourth Lateran Council forbade all clergy from
participating in ordeals, opening the door for jury-based systems
and non-religious trials, “Neither shall anyone in judicial tests or
ordeals by hot or cold water or hot iron bestow any blessing; the
earlier prohibitions … remain in force”31
Ancient Greece
Re: jury a la Socrates’ trial, where he was judged by male citizens
as a jury32
Ancient Rome
The Roman Fisc, meaning basket, of in which ballots of guilt where
cast
Germanic legal tradition (in
The Vehmic, Jury based court system, jury made up of professional
the medieval time)
“lay-judges”
7. Does Henry II deserve to be remembered as the father of the English common law?
a. Nope, if anything, a Mormon polygamist half-parent of the jury system
8. Have jury’s had a major effect on the English common law?
a. Involvement of the public from hierarchical to common, with the involvement of the
people cementing the egalitarian ideal of the law
9. Why did English law develop so differently to continental law?
a. Not so different, see footnote 27
27
Herbert Albert Laurens Fisher Frederic William Maitland, The constitutional history of England: a course of
lectures delivered (2001) 122-125
<http://books.google.com.au/books?id=MQaHL9s_xRwC&lpg=PA121&ots=mj8o1qSPkw&dq=Frankish%20Jury
&pg=PA122#v=onepage&q=Frankish%20Jury&f=false> at 19/08/2009.
28
Ralph V. Turner, 'The Origins of the Medieval English Jury: Frankish, English, or Scandinavian?' (May, 1968)
7(2) The Journal of British Studies 1-10, 1-3.
29
Ibid. 1.
30
American Bar Assosciation Division for Public Education, 'Dialogue on the American Jury, Part I: The History
of Trial by Jury' (2005) [1] <http://www.abanet.org/jury/moreinfo/dialoguepart1.pdf>.
31
Twelfth Ecumenical Council: Lateran IV, 'The Canons of the Fourth Lateran Council' (1215)
<http://www.fordham.edu/halsall/basis/lateran4.html> at 19/08/2009.
32
See Plato, Phaedo (360 BC) <http://classics.mit.edu/Plato/phaedo.html> at 19/08/2009., where, Socrates, in
the phrase “I shall be glad if my words have any more success with you than with the judges of the Athenians”
describes, not judges as we know them today, but a panel of citizen jurors “as many as 1501 [jurors]”: See
Faculty of Legal History, 'The Trial of Socrates' (2007)
<http://www.law.umkc.edu/faculty/projects/ftrials/socrates/greekcrimpro.html> at 19/08/2009.
Johanan Ottensooser
Spring 2009
20
Seminar 8 – English (Legal) Historical Perspective (B): equity, the new kid
on the block
For 19th August
NB: Look up cases re: Marlborough and Oxford
Other Notes
 Earl of Oxford’s Case21 ER 486 at 486 (1615) 33:
o There was a case of fraud that was locked in stalemate in between the commons
and equity
o Sir Francis Bacon found Equity to prevail over the common law, in accordance with
the wishes of King James I
Discussion Starters
1. What problems did a litigant face in bringing an action in the Royal Courts of Common Law in
England at the end of the medieval period (taken as the beginning of the Tudorian Period)?
a. After the Provisions of Oxford (explain), the writs allowed were limited quite harshly,
limiting the forms of actions which can be put before the court.
b. Therefore, the system was seen as overly rigid
c. Furthermore, the results were limited to punishments for criminal cases and
damages for civil cases
d. Other ends and other actions might need to be assessed, through which equity was
born
e. See BLE notes
2. Trace the history of the courts of chancery from its emergence at the end of the 14th c down
to the Judicature Acts (UK) 1873-1875.
a. Originally, the king heard appeals in the name of justice.
b. Then, with the increasing volume, the king could not answer all of the pleas, and,
therefore, turned to the lord chancellor, and, later created the chancery to hear the
other cases of equity.
c. At the same time, the provisions of oxford limited the actions and remedies
available
d. So the courts of equity had to hear all cases outside of these actions or seeking other
remedies
e. These were heard by the courts of chancery, in which the judges were originally
trained as clergy
f. Equity was chosen as superior to Common Law in the Earl of Oxford’s Case (1615) .
g. 1670-1830 Precedent was added to the court of chancery
h. Judicature acts 1873-1875 (UK) fused two into one court
i. Equitable maxims, see handout
3. What were the philosophical underpinnings of the jurisdiction of the court of chancery? Re:
Christopher St Germain
a. Regression?
33
Earl of Oxford's Case (1615) 21 ER 486 at 486.
Johanan Ottensooser
Spring 2009
21
b.
c.
d.
e.
4.
5.
6.
7.
Appeal to greater good/against miscarriages of justice
Religious base
Chosen as superior to common law
Christopher St Germain’s Doctor and Student (1531) “thus in some cases it is good
and even necessary to leave the words of the law and to follow what reason and
justice requires and, to that intent equity is ordained… to temper and mitigate the
rigour of the law”
What is the relationship between common law and equity and how was this settled?
a. They were equal
b. There were abuses of jurisdiction, which lead to friction between the court of the
king’s bench and the lord chancellor
c. Equity was chosen as superior in the Earl of Oxford’s Case (1615)
d. Judicature acts 1873-1875 (UK) fused the two courts together
Re: John Seldon’s quote in Table Talk: law is structured, equity is based on the conscience of
the chancellor, and therefore “roguish”
a. In 1500 this was true
b. In 1825, equity was more structured?
Baker on “the greater part of the land in England was held in use”. What was the attitude to
the medieval use of the court of chancery compared with common law? How did the crown
respond?
a. Use was with regard to the land being held and used by someone who isn’t the
owner
b. Under common law these tenants were not afforded rights, though in the chancery
they did receive some consideration
Compare and contrast the workings of the Court of Chancery with the Royal Courts of
Common Law at the turn of the 19th century.
a. Nb: this was before the judicature acts, therefore separate courts
Remedies available
Royal Courts of the Common
Law
Damages
Court of Chancery
Specific Action, injunction,
rescission, estoppel, etc.
Re: forms of action
Strict adhesion to writs
Flexible, focus on equity, not
formality
Morality
As by the law
Law + equitable maxims
8. What were the main effects of the judicature acts 1873-1875 (UK)?
a. Fuse the courts
b. Precedent?
c. Enshrine the equitable maxims?
d. Only in oz 1973ish
Johanan Ottensooser
Spring 2009
22
Seminar 9 – English (Constitutional) Historical Perspective (A): Magna
Carta and Distortion
For 24th August
Achievements
Limitations
People increased in power because Barons had Power was not directly transferred to the
Veto Power re: S61
people, but to the barons (who’s interests
were, at the time, aligned) S61
King swore an oath of fealty to his people via
the barons: S61
Tax limitation weren’t cemented, since the
king was allowed “reasonable” taxes w/o
question/affirmation S12
Began the Idea of Habeas Corpus S29
No principle of the separation of power
Lack of enforceability for most clauses
Other Notes
 Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622
o Re: applicability of Magna Carta in NSW courts
o Held: yes, applicable
o But in this case (re: condoms in prisons) irrelevant
Discussion Starters
1. Why was Magna Carta conceded in 1215?
a. Before King John, Richard the Lionhearted (lots of territory lost by John)
b. Before: King and Pope hated, egged French king on
c. There was a civil war in England, with the French king, Dauphin, and the Scottish
king, Alexander II, marching into London
d. Because of the King’s high taxes, the people of London and their barons supported
this rebellion
e. King John was to sign the Magna Carta in order to receive these Barons’ oaths of
fealty
f. Later reneged, and caused the civil war (of the barons) Pope Innocent
g. Re: Cromwell?
2. Explore the accuracy of the following claims:
Claim - That Magna Carta:
Guaranteed trial by jury
Created parliament in England
Reality:
Did secure right to a free common law action
requiring a prison to rationalise why it held
someone “or” S29 in 1297
Re: villains
Rights were afforded to certain people
depending on their feudal stature
Didn’t
No, king sworn in
Johanan Ottensooser
Spring 2009
23
1100 something?
Guaranteed no tax without parliamentary
Yes with regards to the king’s forest and
consent
compulsory acquisitions clause 12 “no … aid is to
be levied … unless it is … reasonable”34
Provided a means to overrule the right of the
This is true, the King, in clause 61 “The Security
king
Clause”, swears an oath of fealty to a committee
of barons, who could overrule him through
“distrain and distress”.35
3. How has the myth of Magna Carta interacted with its legal authority?
a. It has almost no legal weight (having been repealed over the centuries)
b. But some still remains, i.e. habeas corpus
i. Then in isle: then in Bill of Rights (irrel. To name) then ILLEGAL
GUANTANAMO
c. Its symbolic weight as a first point of human rights and constitutional limitation of
power is immense
4. Does McKechnie reflect Lyon?
a. McKechnie is revisionist (and states the anachronism of juries and Magna Carta)
b. Lyon praises both perspectives
5. Why has Magna Carta played the role it has in English legal and constitutional history?
a. Real MC  the habeas, taxes &ct
b. The idea of MC  1700’s, ideas of democracy, etc
6. What was the claim based on Magna Carta in Prisoners A-XX Inclusive v State of New South
Wales (1995)36? Was it successful? If not, why not?
a. Based on S29
b. Not successful
c. Law was applicable (if not weighty) but the action was not in breach of this law
7. Outline briefly the emergence of Parliament in England and Especially the representative
element. What role, if any, did Magna Carta play?
a. Parliament existed before and after the Magna Carta, and was used in order to
swear in the kings of England. After Magna Carta, there was a band of barons which
served as an ad-hoc parliament. A real parliament would only get instituted when
voting, and, therefore, responsible governance came into effect (with the Reform
Acts of 1832, 1867, and 188437).
b. Magna Carta served as a symbol for the limitation of authoritarianism, as well as the
power of determined groups to make change, which would inevitably be reflected in
true democracy.
34
Xavier Hildegarde, 'New transaltion of Magna Carta of Great Britain, 1215' (2001) [c12]
<http://www.magnacartaplus.org/magnacarta/> at 23/08/2009.
35
“And if we, or in our absence abroad the chief justice, have not corrected the transgression within forty
days, … Together with the community of the whole land, they [the barons] shall then distrain and distress us in
every way possible, namely by seizing castles, lands, possessions and in any other they can (saving only our
own person and those of the queen and our children), until redress has been obtain in their opinion. And when
amends have been made, they shall obey us as before.” Ibid. [c61].
36
Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222.
37
Glenn Everett, The Reform Acts (2007) victorianweb.org <http://www.victorianweb.org/history/hist2.html>
at 6 Sep 2009.
Johanan Ottensooser
Spring 2009
24
Seminar 10 – English (Constitutional) Historical Perspective (B): What was
passed on?
For 31st August
Discussion Starters
1. What do you understand by the term, ‘rule of law’? Compare with other definitions. What
contribution, if any, do you think Magna Carta played in the emergence and establishment
of the Rule of Law in England?
a. I understand the rule of law to be a societal acceptance, enforcement and following
of justly made laws.
i. Dicey38 defines the rule of law as the independence of parliament as lawmaking body, that these laws are “enforced by the courts”
1. The absolute supremacy of regular law as opposed to the arbitrary
abuse of power
2. That no one is outside the law or able to compromise the law
ii. Raz states39 that the rule of law is a political ideal, and is not synonymous
with democracy, justice, equality, etc.
1. “That the government shall be ruled by the law and subject to it” 40
2. “That people should obey the law and be ruled by it”41
b. Magna Carta (through the security clause s26) was the first time that the Monarch
was legally bound by any rules. However, this was soon rescinded, and the “rule of
law” thus revoked.
2. When can we say that Parliament emerged as the supreme lawmaker in England: 1215,
1536, 1628, or 1688? At some other time?
1215
• Magna Carta
1536
• Re: Henry VIII
1628
• Petition of Right
1649
• Trial of King Charles I and Civil War
1688
• Glorious Revolution
38
A. V. Dicey, Introduction to the law of the Constitution (9 ed, 1945) 39-40.
Joseph Raz, 'The rule of law and it's virtue' (1977) 93 Law Quarterly Review 195-202.
40
Ibid. 197.
41
Ibid.
39
Johanan Ottensooser
Spring 2009
25
a. 1215 – Magna Carta
i. A “council of barons”42 given power of veto and of enforcement of law over
this king
ii. This was short lived
iii. This was not “parliament”, and definitely not elected/representative
parliament
b. 1536 – Henry VIII, the Church of England and the Pope
i. Henry VIII splits church from Pope and oft goes to war
1. War required assent from Parliament for funds
ii. Re: Henry VII
1. Act in Restrain of Appeals to Rome 153343
a. Preventing appeal to Rome re: validity of English decisions
2. Act in Absolute Restraint of Annates 153444
a. Stopped English Churches from paying dues to Rome
3. Act of Supremacy 153445
a. Henry VII “Supreme Head in Earth of the Church of England”
4. Shift not only from Rome to UK but from Church as power to Church
as limited by the Constitution and the Rule of Law
5. To achieve this, Henry VIII required the assent of Parliament
6. This created “overriding supremacy of laws made by parliament and
receiving the royal assent”46
c. 1628 – Petition of Right –King James I and Charles I (from 1625) – Crown V.
Parliament V. Courts
i. Petition of Right
1. Rights which the King was not allowed to Infringe
a. Writ of Habeas Corpus
b. Funds only Via Parliament
c. No martial law in times of peace
ii. Crown V. Parliament
1. King James I – from Scotland – believed in Monarchy as divine right,
with a “descending” view of gov’t (king made laws, was not bound
by them)
a. In contrast w “ascending” which stated that power was
based on a social contract – popular in other parts of
Europe.
2. Parliament was as before, summoned and dismissed by the king
because of its “exceptional money-raising authority [and] power to
legislate”47
42
Magna Carta 1215 (England) 16 Jon I. s 26.
An Act in Restrain of Appeals to Rome 1533 25 Hen. 8.
44
Act in Absolute Restraint of Annates 1534 26 Hen. 8.
45
Act of Supremacy 1534 26 Hen. 8.
46
Patrick Parkinson, Tradition and Change In Australian Law (Third Edition ed, 1994) 90.
47
Ibid. 93.
43
Johanan Ottensooser
Spring 2009
26
a. Parliament began to find a backbone in the Tudorian period
(Elizabeth, James, etc.)
b. Form of Apology and Satisfaction of 160448
i. Parliament as RIGHT not as the King’s grace
ii. “our right ... no less than our very lands and goods”
iii. “cannot be withheld from us”
iv. The “voice of the people ... as the voice of god”
c. 1649 – Dissolution of parliament
i. King had to find money elsewhere
ii. Tensions between King and Parliament led to civil
war
iii. Crown V. Common Law
1. Since King was the source of power of the Common Law courts, he
thought that he should be able to dispense justice at will.
2. V. Coke (Chief Justice of Common Peers)
a. Case of Prohibitions (1607)49
i. Coke’s first open clash w the King re: Royal power to
decide cases
ii. “The King should not be under man, but under God
and the Laws” – Bracton
iii. Artificial reason of the Courts V. Natural reason of
the King (Coke’s argument)
b. Case of Proclamations (1611)50
i. King cannot create criminal offences
3. These cases and others began a system of separation of powers (i.e.
King and Courts separated)
iv. Common Law V. Parliament
1. Whilst sovereignty of Parliament had been established, Courts
interpreted widely
a. Fulmerston v Steward (c. 1554)51
i. Where unjust, legislation might be ignored
b. Coke declared that courts had the power to declare invalid
acts if they were contrary to reason
2. Coke said that the courts were a protection against the “Tyranny of
the Majority”
d. 1649 – Trial of King Charles I and Civil War
i. Warm up
1. Rebellion in Scotland due to religion
2. Asked parliament to raise an army
a. They did not allow because of other grievances
48
Form of Aplology and Satisfaction 1604 2 Jac. 1.
Case of Prohibitions (1607) 77 ER 1342.
50
Case of Proclamations (1611) 77 ER 1352.
51
Fulmerston v Steward (c. 1554) 75 ER 160.
49
Johanan Ottensooser
Spring 2009
27
b. Especially fiscal abuses
3. Scots invaded
a. He had to, therefore get parliamentary approval
b. They said yes, under the conditions of the following acts:
i. Triennial Act 164152
1. Regular parliamentary terms
ii. Act to Continue the Existing Parliament 164153
1. Stopped king from dissolving parliament (he
now needed parliamentary assent to
dissolve parliament)
iii. Act Abolishing Prerogative Courts 164154
1. Abolished special courts
2. Supremacy of common law
4. By 1642, became civil war
a. King V. Majority of the house of commons
b. House controlled funds and therefore was powerful
i. House allied w the Scots (Solemn League and
Covenant 164355)
ii. Made law through Ordinances which did not require
Royal Assent
iii. Created a professional military force
c. Royalists defeated in 1646
5. King Charles I tried and executed in 1649
a. First power taken over King legally
ii. Became a Republic for a while
1. Would not call fair elections
2. Army disbanded parliament in 1653
iii. 1660 Charles II crowned
e. 1688 – Glorious Revolution
i. Overthrow of King James II by parliamentarians etc
ii. Bill of Rights
iii. Circumscribed Monarch’s powers
3. What is Dicey’s Doctrine of Parliamentary Sovereignty? Can it be reconciled with the rule of
law?
a. Individual power of Parliament to write and make laws without interference
i. “there was not law that Parliament could not make or unmake”
ii. V. Constitution
b. Rule of law as a consequence of sovereignty, they are interdependent concepts
4. What is the Doctrine of Separation of Powers? What is its underlying rationale?
52
Triennial Act 1641 17 Caro. 1.
Act to Continue the Existing Parliament 1641 17 Caro. 1.
54
Act Abolishing Prerogative Courts 1641 17 Caro. 1.
55
The Solemn League and Covenant, The House of Commons, England; Scotland.
53
Johanan Ottensooser
Spring 2009
28
5.
6.
7.
8.
9.
10.
a. Splitting power so as to not have a monopoly of power, and therefore, reduce the
ease of corruption
b. Montesquieu
An essential element of the Rule of Law is an independent judiciary. Why and how was this
shaped by 7th C England? What guarantees of independent judiciary arose?
a. To ensure separation of power
b. Guarantees – fixed pay
c. Act of Settlement
What is involved in the idea of Due Process of Law? Where can we find the seeds of this
concept?
a. Habeas Corpus
b. The right to a fair trial
c. Removing punishment without proof
The Hallmark of the Westminster system of Gov’t is responsible gov’t. What is it? What are
its essential elements? When did it emerge in England? When and where did women first
get to vote? Should prisoners be able to vote?
a. Responsible gov’t is where gov’t is accountable and representative
b. It emerged in England with the popular votes (increasing, first with the emergence
of parliament, then with the emergence of votes for all men, and then finally, with
universal suffrage).
c. In New Zealand 1893
d. Only if it is a petty crime
What is a constitutional Monarchy?
a. A system of gov’t whose hallmark is a monarch with powers limited by the
constitution
What are the basic tenets of liberalism?
a. General acceptance
b. Relevant because of Protestant acceptance of other religions delineated in the
Toleration acts
Should Australia have a bill of rights?
a. Yes
b. Not constitutional, but, rather, a standard piece of legislation
Johanan Ottensooser
Spring 2009
29
Perspectives (B) History (ii) Australia
Seminar 11 – Australian (Legal) Historical Perspective (A): A clash of
historical perspectives – British colonisation/invasion of NSW
Discussion Starters
1. Outline and explain the international and common law principles which underpinned the
acquisition by the British of sovereignty over New South Wales.
a. The ways in which a colony could be established:
i. Colonisation (invading laws from outset)
ii. Invasion (local laws slowly replaced by invading laws)
b. NSW was declared Terra Nullius, so it was colonisation
2. Assess the impact of British Colonisation on the indigenous populations of NSW.
a. Negative impact
b. Disease, disruption of culture and way of life
c. Some sources suggest genocide
3. What did the High Court decide in Mabo v Queensland (no 2) (1992)56? Do you think the
significance is overstated?
a. Australia was/is not terra nullius
b. Aboriginal people had native title to the land
4. What is “history”? What role does it play?
a. Stories recording the past
b. Creating the future
c. Aboriginal histories were more figurative
5. History Wars?
a. Revisionist V. Classical history
b. Nb: treatment of aboriginals
c. White and someone
6. History as a lens to create truth
a. Yes
b. i.e. Hitler’s excavations during WWII to extend the Reich because of historical claim
56
Mabo v Queensland (no 2) (1992) 175 CLR 1.
Johanan Ottensooser
Spring 2009
30
Seminar 12 – Australian (Legal) Historical Perspective (B): Setting up the
legal shop in NSW
Discussion Starters
Establishment of Courts in NSW
1. The First Charter of Justice established a Court of Civil Jurisdiction for NSW. The first case
before this court was brought by Henry and Susannah Kable (two convicts). Briefly describe
the faces of this case and what was decided. Is it remarkable?
a. Convicts sued for property lost
i. Was put on boat
ii. Was lost before arrival
b. They won
c. This was remarkable because they were convicts, and, yet, were still able to use the
civil law to their advantage (the principle of equality as opposed to the “doctrine of
attainder”)
2. Compare the role played by the Judge-Advocate in England and in New South Wales
between 1788 and 1823. Do you think that the criticism directed to the role played by the
NSW Judge-Advocate is justified?
a. In Australia – Committing magistrate, Public Prosecutor and Judge
b. Presented evidence and judged it
c. Military officer who was both to judge and to follow orders
3. What were the main criticisms of the arrangements put in place by the First Charter of
Justice for the administration of justice in NSW?
a. Established courts (crim.)
b. Crit. Inadequate legal practitioners and increasing demand for civil litigation
4. Critically evaluate David Neal’s assertion that: “the courts served as de-facto parliament”.
a. No other way to legislate
b. Precedent created local law
c. People went to court for what parliament would usually deal with
5. When was the current Supreme Court of NSW established and by what means? To what
extent were opportunities provided for innovation in the early years of the NSW Supreme
Court squandered?
a. New South Wales Act 1823 (courts began)
b. Australian Courts Act 1828 (supreme court)
Establishment of trial by Jury
6. When and by what means was trial by jury established in NSW?
a. 1823. Australian courts act, a judge could order a trial by jury
b. 1833 Gov. Bourke est. Use of civilian juries in crim. Cases
7. David Neal: “But important as juries may have been in guaranteeing the independence of
the courts, trial by jury took on an additional dimension in NSW”. Discuss.
a. Yes. Because of the political nature trials took on after juries were established
Johanan Ottensooser
Spring 2009
31
Establishment of Representative and Responsible gov’t in NSW
8. What is representative and responsible gov’t?
a. Representative  voted and reflecting the opinions of the electors i.e. universal
suffrage
b. Responsible  independently and as a group responsible for actions in Parliament
i. Re: voting in again, crim. Etc.
9. The governor was an “autocrat” during the period 1788-1823 in NSW. Do you agree?
a. Yes in power
b. No in action, the governor appeased the populace and the crown
10. Looking at the roadmap set out in “journey to ...”, when would you say NSW achieved
representative gov’t and by what means? When did NSW achieve responsible govt?
a. W aboriginal and women vote 1949 w Chifley, when all people with a state vote had
a federal vote
i. NSW act 1823
ii. Gov. Darling 1825
iii. Australian Courts act 1828
iv. Australian Constitutions act 1842
v. “ #2 1580
vi. Constitution statute/act 1855
vii. Constitution Act 1901
b. Responsible with courts act and constitution?
Johanan Ottensooser
Spring 2009
32
Seminar 13 – Australian (Legal) Historical Perspective (C): Reception and
Repugnancy
Discussion Starters
Reception of English Law
1. Explain the English common law principle relating to the reception of English law.
a. Terra Nullius, therefore reception is complete and instant
b. Insofar as Blackstone “only so much of the English law, as is applicable to their own
situation and the condition of an infant colony”
c. Whether new laws should apply
i. Attorney General v. Stewart (1817)
ii. “a law of local adapted solely to the country it was made” – if England
specifically, then not received
2. 25 July 1828
a. Last law received
3. Imperial Acts application act
a. See other printout
4. Magna Carta?
a. Some
b. See Prisoners57
5. Repugnancy explained
a. All acts prior to 1828
b. Nothing after
c. Untill 1865 w the Colonial laws validity act
i. Only with paramount force
d. And Imperial Acts Application Act 1969
i. Specified laws to be brought
57
Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622.
Johanan Ottensooser
Spring 2009
33
Seminar 14 – Australian (Constitutional) Historical Perspective (D): the
Federation and Independence Journeys
See printout
www.aph.gov.au/library/pubs/chron/1999-2000/2000chr01.htm
Discussion Starters
Journey to federation
1. Reasons for?
a. Rail gauge
b. Xenophobia
c. German/Dutch presence in nearby
2. Defn: federal?
a. Centralisation of administration, some decision making, etc
3. Three milestones?
a. See printout highlights
4. Issues to be resolved?
a. Free trade?
b. Representation of states?
c. Rich v poor (re: support)
d. Big v little (re: representation ... i.e. upper v lower house)
5. Constitution as amalgam?
a. Yes
b. Diff states, UK, US and Canada
Journey to independence from UK
1. See printout
Johanan Ottensooser
Spring 2009
34
Seminar 15 – Australian Constitutional Perspective: Getting to know the
Australian Constitution
Discussion Starters
1. Defn: Constitution and function. Controlled v uncontrolled
a. Guiding documents for nation
b. Binding above the law
c. Req. Referendum if controlled
2. Hallmarks of federal system?
a. Central gov’t
b. Layers of gov’t
c. Economies of scale
d. Diluted vote
3. Look at constitution
a. Ok
b. Looks good
c. Old fashioned (i.e. telecommunications) but interpretation keeps it modern
4. A) legislative power B) executive C) judicial
a. Parliament
b. Executive (govgen as guided by the Cabinet and Prime Minister)
c. Courts (independent)
5. Power divided?
a. S 109 supremacy.
b. S 51
6. Knowledge of 51
a. HECK YES!
7. Re: S71 and high court as keystone
a. Yes as federal court binding in all states
b. Yes as balance to legislature and executive
8. Re: no separation of powers
a. There is a separation
b. Less defined since they are interwoven
9. Judicial independence
a. Yes since no taking away a judge’s salary
10. Re: responsible and representative
a. No prime minister
b. No cabined
c. Via cases and interpretation
d. Re: voting and impeachment (reserve powers)
11. Head of state?
a. Govgen
12. Amending constitution?
a. Referendum
b. Special majority
Johanan Ottensooser
Spring 2009
35
13.
14.
15.
16.
i. People and states
c. Not many
Rights protected?
a. Implicitly
b. More through common law
Ineffective at preserving state rights
a. Has been trend to increase federal power, but states still relevant
Constitution dead?
a. No, living document because it is constantly being reinterpreted
For/against republic?
a. For
i. Independence
ii. Independent foreign policy
iii. Respect aborigines
b. Against
i. No point
ii. Keep heritage
iii. Foster international goodwill (commonwealth)
Johanan Ottensooser
Spring 2009
36
Perspectives (A) Philosophy and Culture (ii) Aborigines and
Immigrants
Seminar 16 – Cross Cultural Perspective (B): recognition of Indigenous
customary laws
See pg 99 of booklet 2
Discussion Starters
1. Describe the nature of Indigenous customary laws
a. Familial (aka pre Norman Conquest English law)
b. “circle sentencing”
c. Based on mythologies
2. What did Mabo v Queensland (1992)58 decide about the recognition of Indigenous
customary law?
a. Acceptance of traditional land ownership
3. What was the significance of Walker v NSW (1994)59?
a. ?
4. What extent has Indigenous law been integrated?
a. Native title
b. Circle sentencing (NSW) based on NT precedent, so far so good
5. For/against
a. See pg 99
6. Myths?
a. Equality will be broken
i. Actual V. Functional equality
b. Sexism/sexual abuse
i. Can be mitigated with partnership of common law
7. Should other ethnic groups’ laws be recognised?
a. No
b. Unequal
c. Not satisfying minimal human rights (i.e. Shariah law and Nigeria)
8. Formal V. Substantial equality
a. Re: positive discrimination  affirmative action
b. Levelling playing field
c. Against Friedman ideal of “freedom before equality”
58
59
Mabo v Queensland (no 2) (1992) 175 CLR 1.
Walker v New South Wales (1994) 182 CLR 45.
Johanan Ottensooser
Spring 2009
37
Seminar 17 – Cross Cultural Perspective (C): what access and for whom?
Discussion Starters
1. Difficulties highlighted by “Muslims in the Dock” (1997)
a. Despite goodwill
b. Translation is ineffective
c. Defendant only gets interpreter for their own speech (i.e. as in to service the court)
not for the duration of their defence
d. Here, 2 levels of interpretation  Chinese whispers effect
2. Right to interpreter?
a. Yes
b. During the whole case
c. To allow for co-ordinated defence, equality before the law
3. Bird and McDonell “We understand the ability of cultural construction ... to shape our
reality”
a. Changing cultural frames shaping view on reality and, therefore, actions
4. Examine A) “legal knowledge is portrayed as objective ... den[ying] the reality of class, or
gender, or race” B) “although the [court people] are people of good will ... their
monocultural outlook will impede the delivery of justice” C) “Cultural essentialism ...
discriminate[s] against ... “other[s]”
a. Ideal
i. Changing (for the negative)?
ii. Re: aborigines
iii. Children
iv. Women (i.e. custody)
b. Law as establishment of status quo
i. Non-consequentialist
ii. Non-cultural relativism
c. Yes, but in the name of equality and justice
5. Bird and McDonell before 9/11 – is it still relevant?
a. Yes, in the same flawed way as before
b. To promote discussion to highlight flaws and ways to grow
6. Perils of unrepresented?
a. Non-legal background
b. Inadequate
c. Defendant thinks he is acting in best interest, but isn’t
d. Even lawyers don’t represent themselves
7. Problems w unrepresented? Should be allowed?
a. Knowledge of protocol (e.g. evidence) and legal problem solving
b. Representation should be compulsory unless you have legal training
8. Should court be televised?
a. Yes, for transparency of justice (especially high court)
9. Internet?
a. Also yes, better because undistorted (whole case can be shown w/o commentary)
Johanan Ottensooser
Spring 2009
38
Seminar 18 – Social Justice Perspective: Moving to a wider view (re:
Aboriginal people)
Discussion Starters
1967 Referendum: Separating Myth from reality
1. What did 1967 referendum achieve?
a. Aboriginal in census
b. Not vote (that was earlier, 1901 ish ... 1949 with Chifley)
The Stolen Generations
NB: Stolen Generation as Genocide p 175
2. Why so long for sorry? K Rudd V. Brendan Nelson
a. Admit fault opens up lines for legal suits
b. K) Apologetic
c. BN) V. Understanding and not forgetting
3. Impact of sorry?
a. Law suits
b. Growth of feeling “Australian”
c. Removal of guilt  inaction
4. Bringing them Home Report (1997)  compensation
a. Expensive
b. V. RIGHT TO COMPENSATION
i. Trevorrow v State of South Australia (no 5) [2007] <500000
ii. V. Recommended in legislation, much lower
c. Only for directly affected
5. What’s next?
a. Bridging the gap by breaking the poverty cycle
Johanan Ottensooser
Spring 2009
39
Perspectives (C) the Legal Profession
Seminar 19 – Legal Players’ Perspective (A) – looking from the Inside
(Judge and Jury)
Discussion Starters
The Judge (and magistracy)
1. Compare and contrast the roles of judge and jury
a. Referee and decisions on law
b. Decisions on fact
2. Adversarial V inquisitorial
a. Referee
b. Player (calls witnesses, asks questions)
3. Who is the CJ HC? The others? CJ NSW Supreme? Pres. NSW appeal?
a. Chief Justice French
b. Others
i. Gummow
ii. Hayne
iii. Heydon
iv. Crennan
v. Kiefel
vi. Bell
c. Don’t care
4. Attributes for judge?
a. Moral
b. Open minded
c. Sharp
d. Fluent in the law
e. Lifelong Learner
5. Qualification for judge A)HC B)NSWSC
a. High Court of Australia Act 1979 s7
i. A judge of fed. Or state court or
ii. Barrister of the high court for 5 years
b. Supreme Court Act 1970 NSW s26
i. Gov appoint anyone “qualified”
ii. Qualified if
1. Judicial office
2. Lawyer of 7 years
6. Procedure for appointment
a. Via bar assoc.
7. Wig/Robe?
a. Choice
b. Tic to heritage
c. Sombre
Johanan Ottensooser
Spring 2009
40
8. What is the judicial commission of NSW?
a. Independent part of judicial arm of govt
i. Under Judicial Officers Act 1986
b. Function
i. Assist in consistency in sentencing
ii. Continuing education of judges
iii. Examine complaints
The Jury
9. Advantages of representative jury?
a. Balance of power
b. Trust
c. Education (Japanese model)
d. Transparency
e. Re: location inequity
10. Unanimous?
a. No, majority
b. Less than one
c. Long time and court satisfaction
Johanan Ottensooser
Spring 2009
41
Seminar 20 – Legal Players’ Perspective (B) – looking from the Inside (Jury
and the legal practitioner)
Discussion Starters
The Jury
1. For/against?
For
education
Checks and balances
Historicity
Transparency
Against
No knowledge of law
Re: est. Legal profession
expensive
The Legal Practitioner
2. Role of legal practitioner
a. Representation of clients’ best interest
3. Role of Law Society and Bar Association
b. Represent lawyers
c. Checks of quality
d. Nominate judges
4. n/a
5. skills for legal professional
a. See grad. Attributes
6. Deserve bad rep?
a. No, represent those in need
b. Work within a different moral set (i.e. cab rank)
7. n/a
8. “barriers”
a. Boys club
b. Elitism
Johanan Ottensooser
Spring 2009
42
Perspectives (D) International Law
Seminar 21 – International Perspective: international law knocking on
Australia’s door
Discussion Starters
1. Defn: international Law? Re: models?
a. System of applied international treatises
b. Models:
i. Consequentialist (re: diplomacy)
ii. Positivist
2. Int’ll law V domestic law? Priv. V. Public?
a. Externally ratified laws v domestic only laws
b. Between peoples, between nations
3. Sources?
a. Treaties
b. Organisations (i.e. UN)
4. Australia conventions?
a. Kyoto
b. APEC
c. AUSFTA
d. ANZ Close economic cooperation
e. Etc.
5. Int’ll V domestic
a. Re: constitution and democracy
b. Re: enforceability
c. Re: who’s best interest
6. Main institutions?
a. World Bank
b. WTO
c. UN (ICJ, ICC)
d. APEC
e. ASEAN
f. NATO
7. Re: nigger case in sport stand Australia
a. Committee on the elimination of Racial Discrimination (Comm. No 26/2002:
CERD/C/62/D/26/2002)
8. Strengths and weaknesses
a. Diplomacy V. Justice
b. Interests
9. Int’ll to domestic?
a. Only if ratified and enacted
10. Const.
a. S51(29) allows federal to enact int’ll treaties
Johanan Ottensooser
Spring 2009
43
11. Charlesworth Aus Int’ll law as “Janus”
a. No
b. Very int’ll
c. Re: HDI as Australia V. interconnected
12. Charlesworth “impoverished” unless more receptive
a. Reception is good
b. But not at the cost of Australia’s wellbeing/int’ll standing (e.g. Durban II)
13. Why aware of int’ll?
a. Growing
b. Legally binding
c. See Minister for Immigration v Teoh (1995)60 (laws taken to be inline w int’ll
treatises)
60
Minister for Immigration v Teoh (1995) 183 CLR 273.
Johanan Ottensooser
Spring 2009
44
Perspectives (A) Philosophy and Culture (iii) other frames
Seminar 22 – Philosophical Perspective (B): criticism and beyond
Discussion Starters
1. Re: one armed swimmer
a. Non-consequentialist
b. Absurd result: re “golden rule”
2. A) legal realism B) critical legal studies C) legal feminism
a. Descriptivist
i. See Jurisprudence
b. Developmental
c. Ai)
3. Law as self contained, by specialist knowledge
a. No, as framed by language (Derrida)
b. No, as framed by culture (crit. Legal studies)
i. As framed by reality (judge biases, etc) see “American realism”
ii. No ... politics of the law
iii. No ... serves the wealthy
iv. No ... contradictory
c. “ gender (legal feminism)
d. Yes (formalism)
i. Law as exactly “form” re: executioner in US case
4. Realist?
a. No, since ABC
5. Law is objective and value free?
a. Yes ideally
b. No in practice
c. CLS
i. No because Bi-iv
6. Law is neutral and impartial
a. Doesn’t claim to be (re: affirmative action, maternity leave, etc)
b. Fem.
i. No
c. Should be see: Jurisprudence on Justice
7. Defn equality:
a. Re: affirmative action V. Friedman
8. Legal philosophy V. Real law
a. Are connected, see law reports and advice to gov’t
9. Re: appointment
a. Man club
b. Nepotistic
c. Not recognising Woman Law Club
Johanan Ottensooser
Spring 2009
45
Seminar 23 – Law and Culture
Discussion Starters
1. Culture and law (together, separate or mutually constructive)
a. C because both ways, “bad” things illegal (i.e. dog poop, graffiti) and illegal things
shape reaction
2. Why law and culture?
a. Properly understand the ramifications of the law/cases/etc.
3. Should 2nd life be regulated?
a. Yes since money
Johanan Ottensooser
Spring 2009
46
Bibliography
Dicey, A. V., Introduction to the law of the Constitution (9 ed, 1945) 39-40.
Minister for Immigration v Teoh (1995) 183 CLR 273.
Brandeis, Warren &, 'Right to Privacy' (1890) 4 Harvard Law Review.
Connery, Sean, 'Independance Day not far off for Scottish bravehearts', Sydney Morning Herald
(Sydney), 10 April 2008, 1.
Council, National Health and Medical Research, Dietary Guidelines for Australian Adults (2003)
Australian Government <http://www.nhmrc.gov.au/PUBLICATIONS/synopses/_files/n33.pdf> at
8/08/2009 2009.
Danks, Katherine, 'Fine way to raise money', Sydney Morning Herald (Sydney), 6 January 2008.
Evans, Christine Parker and Adrian, 'Introduction, The Ethical Decision Making Framework', Inside
Lawyers Ethics (2007) 3-6, 10-17.
Fuller, Lon L., 'The Case of the Speluncean Explorers' (1949) 62(4) The Harvard Law Review
Association.
Jowitt, Anita, 'The Impact of Plagiarism on Admission to the Bar: RE LIVERY [2006] QCA 152' (2007)
11(2) Journal of South Pacific Law 213-217.
Meyerson, Denise, 'Introduction: "What is Jurisprudence?" and "What is the point of studying
Jurisprudence?"', Essential Jurisprudence (2006) 1-2, 6-8.
Parkinson, Patrick, Tradition and Change In Australian Law (Third Edition ed, 1994).
Preston, Noel, 'Ethical Theory: An Overview', Understanding Ethics (3rd Edition ed, 2007) 35-43.
Raz, Joseph, 'The rule of law and it's virtue' (1977) 93 Law Quarterly Review 195-202.
'A Time to Live, and a Time to Die', Sydney Morning Herald (Sydney), 25 September 2000.
Watt, Rob The Development of Critical Analytic Skills 2006).
White, Hilaire McCoubrey and Nigel D, 'The enforcement of morality: Hart and Devlin', Textbook on
Jurisprudence (3rd edition ed, 1999).
Asprey, Michele M, 'What is Plain Language?', Plain Language for Lawyers (3 ed, 2003) 11-15, 59.
Commission, Australian Law Reform, Review of the Adversarial System of Litigation, Issues Paper No
20 (1997).
David, Rene and Brierley, John EC, Major Legal Systems - The World Today (3 ed, 1985).
Baker, J H, An Introduction to English Legal History (4 ed, 2002).
Johanan Ottensooser
Spring 2009
47
Frederic William Maitland, Herbert Albert Laurens Fisher, The constitutional history of England: a
course of lectures delivered (2001)
<http://books.google.com.au/books?id=MQaHL9s_xRwC&lpg=PA121&ots=mj8o1qSPkw&dq=Frankis
h%20Jury&pg=PA122#v=onepage&q=Frankish%20Jury&f=false> at 19/08/2009.
Hildegarde, Xavier, 'New transaltion of Magna Carta of Great Britain, 1215' (2001)
<http://www.magnacartaplus.org/magnacarta/> at 23/08/2009.
History, Faculty of Legal, 'The Trial of Socrates' (2007)
<http://www.law.umkc.edu/faculty/projects/ftrials/socrates/greekcrimpro.html> at 19/08/2009.
IV, Twelfth Ecumenical Council: Lateran, 'The Canons of the Fourth Lateran Council' (1215)
<http://www.fordham.edu/halsall/basis/lateran4.html> at 19/08/2009.
Plato, Phaedo (360 BC) <http://classics.mit.edu/Plato/phaedo.html> at 19/08/2009.
Turner, Ralph V., 'The Origins of the Medieval English Jury: Frankish, English, or Scandinavian?' (May,
1968) 7(2) The Journal of British Studies 1-10.
Case of Proclamations (1611) 77 ER 1352.
Case of Prohibitions (1607) 77 ER 1342.
Fulmerston v Steward (c. 1554) 75 ER 160.
Mabo v Queensland (no 2) (1992) 175 CLR 1.
Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222.
Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622.
Re Liveri [2006] QCA 152 ('The impact of plagiarism on admission to the bar').
Walker v New South Wales (1994) 182 CLR 45.
Earl of Oxford's Case (1615) 21 ER 486 at 486.
Crimes Act 1900 (NSW).
Patents Act 1990 (Cth).
The Solemn League and Covenant, The House of Commons, England; Scotland.
Act Abolishing Prerogative Courts 1641 17 Caro. 1.
Act in Absolute Restraint of Annates 1534 26 Hen. 8.
An Act in Restrain of Appeals to Rome 1533 25 Hen. 8.
Act of Supremacy 1534 26 Hen. 8.
Johanan Ottensooser
Spring 2009
48
Act to Continue the Existing Parliament 1641 17 Caro. 1.
Companion Animals Act 1998 (NSW).
Form of Aplology and Satisfaction 1604 2 Jac. 1.
Magna Carta 1215 (England) 16 Jon I.
Triennial Act 1641 17 Caro. 1.
American Bar Assosciation Division for Public Education, 'Dialogue on the American Jury, Part I: The
History of Trial by Jury' (2005) <http://www.abanet.org/jury/moreinfo/dialoguepart1.pdf>.
Everett, Glenn, The Reform Acts (2007) victorianweb.org
<http://www.victorianweb.org/history/hist2.html> at 6 Sep 2009.
Johanan Ottensooser
Spring 2009
49