Historical Foundations of Australian Law - Set Volume I & Volume II

Justice McHugh once said that a lack of understanding of legal history was a misfortune, not a privilege. That was an understatement. As well as being essential for any Australian lawyer, the history underlying and informing the Australian legal system is a uniquely interesting amalgam of English, American and local developments. The two volumes of Historical Foundations of Australian Law set the very highest standards of analysis and scholarship. Each is introduced by a useful and perceptive commentary by James Watson. Together, they contain 31 essays by distinguished judges and practitioners and academics. Although each essay is self-contained, in combination they yield a rich analysis of how Australian law has reached its present state. The first volume, Institutions, Concepts and Personalities, contains incisive assessments of key figures such as Sir Owen Dixon and Justice Joseph Story (by Justices Hayne and Allsop respectively), and of key developments such as the establishment of an Australian land law, the reception of the common law, the growth to nationhood, the changing role of precedent and the separation of powers. There are essays on the very early influences on Australian law from the leading early texts (Glanvill and Bracton), from early English statutes and from Roman law. There are essays on the growth of equity, and even a modern dialogue on the Judicature legislation. And there are accounts of legal procedure, which is ultimately the source of much substantive law, and of the jurisprudential figures who have sought to analyse law. The second volume, Commercial Common Law, complements the first: distinguished judges, practitioners and academics write on many aspects of commercial practice, often viewed through more than one prism. Thus there are chapters on money and bills of exchange, and cheques and banking, and on the actions often associated with them (notably debt and conversion), and on Lord Mansfield’s contribution to commercial law. There are chapters on how the basic elements of the law of torts and contract came into existence, from a variety of perspectives. There are analyses of privilege, defamation, assignment and implied terms. There are chapters on corporations, agency and insolvency, and a notable one on restitution (by Ian Jackman SC) that poses a challenge to thinking which has become orthodox outside Australia. These volumes are a very distinguished contribution to Australian legal literature, and the essays will bear reading and re-reading.

Volume I - Institutions, Concepts and Personalities Introduction A Sketch, J A Watson The Common Law Courts: Origins, Writs and Procedure, N Manousaridis Reception of Roman Law in the Common Law, A R Emmett Glanvill to Bracton: The Two Great Early Legal Treatises, J T Gleeson Early Statutes Shaping the Common Law, J S Emmett The Development of the Conscience of Equity, F T Roughley Five Judicature Fallacies, M J Leeming Invisible Cargo: The Introduction of English Law into Australia, J Stoljar Australian Land Law, P M Lane Colonies to Dominion, Dominion to Nation, S Kenny Building a Nation: The Doctrine of Precedent in Australian Legal History, G C Lindsay The Separation of Powers and the Unity of the Common Law, J T Gleeson & R A Yezerski Justice Joseph Story, J L B Allsop & A Foong Sir Owen Dixon, K M Hayne The Jurisprudes, R C A Higgins. Volume II - Commercial Common Law Introduction A Sketch II: Praecipe to Negligence & Contract, J A Watson A Note on the Curious Incidents of Debt, C J R Duncan & J A Watson Trespass, The Action on the Case and Tort, M Lunney Detinue, Trover and Conversion, J Randall & B Edgeworth The Sources of Defamation Law, D Rolph Legal Professional Privilege, P Brereton Milestones in Negligence in the 19th and Early 20th Century, B McDonald Contract Development Through the Looking-Glass of Implied Terms, E Peden Why the History of Restitution Matters, I M Jackman Lord Mansfield, B R Kremer Money and Bills of Exchange, A McNaughton The History of Cheques and Banking, A McNaughton Assignment, G J Tolhurst Agency, R A Dick Corporations, M Wibisono The History of Bankruptcy and Insolvency Law in England and Australia, J L B Allsop & L Dargan.

Justin T Gleeson SC was admitted to the New South Wales Bar in 1989, having previously worked as a solicitor for 4 years at Freehill, Hollingdale & Page. He graduated from Sydney University with a BA/LLB First Class Honours, winning the University Medal in 1983, and with a BCL from Oxford in 1985. He took silk in 2000. James Watson graduated from ANU with first class honours, and worked as the associate to Justice PD Finn in the Federal Court for two years. He studied at Cambridge and commenced practice in London as a solicitor, then in Australia as a solicitor, before being called to the Bar in 2004. He has been a casual lecturer at the University of Sydney since 2003, first in Practice & Procedure and then in Equity from 2005-2010. Ruth C A Higgins was admitted to the New South Wales Bar in 2006, having practised at Gilbert + Tobin in Sydney and Slaughter & May in London. She graduated with first class honours in law from Glasgow University in 1995, as joint winner of the Dr John MacCormick Prize for the Most Distinguished Graduate in Law, and winner of the Bennet Miller Prize for Private Law. Elisabeth Pedengraduated from the University of Sydney with a BA (Hons) (german literature) and LLB (First Class Hons and Medal). She worked as the associate to Justice Lockhart in the Federal Court and Justice McHugh in the High Court. She was a Tapp Scholar and Ivan Roberts Scholar at Gonville and Caius College, University of Cambridge, where she completed her doctorate on implied terms in contract law. She is also a Professor of Law at the University of Sydney.