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Campus: Kensington Campus
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Career: Undergraduate
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Units of Credit: 8
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Indicative Contact Hours per Week: 4
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Enrolment Requirements:
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Pre-requisite: LAWS1011, LAWS1072, LAWS1061 and LAWS1052 or LAWS1123.
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Description
This course reviews the historical development of our law and legal system in England and then Australia over '1,000 years to 1842'. In doing so, it charts the role played by law and legal institutions in the division of political power in first England and then Australia, including the emergence and influence of the concept of the rule of law. Case studies will be undertaken, looking at the development of particular areas of law over extended periods of time, including the emergence of a tort (Trover, the precursor of Conversion), and of the law of contract. Learning will be by reading from the prescribed text and from a rich and varied range of other sources (including texts, articles and cases), from presentations and the debating of ‘moot points’ in class, and from the preparation of a research essay.
Recommended Prior Knowledge
The course assumes and builds upon knowledge and understanding of a range of core legal subjects reflected by the course pre-requisites (Crime 2, Contracts 2, Torts and at least one of Foundations of Law and Conceptual Foundations of the Legal System). An interest in history, a desire to gain a deeper understanding not just of what the law now is, but of how and why it has become so, and an appetite for reading will provide the motivation required to get the most out of this course.
Lecturer
John Randall, an English QC and Deputy Judge who is a Visiting Fellow at the UNSW Law School, and first taught this course in 2004.
Course Objectives
- To gain an understanding of the historical development of our law and legal system, in first England and then Australia, over '1,000 years to 1842'
- In doing so, to gain an appreciation of the nature of the ideas, values, prohibitions and individual rights and freedoms which have become principally associated with the concept of 'the rule of law', and of how the same have developed and been tested over time
- To examine and evaluate Neal's essential thesis (in the prescribed text) that the rule of law played a prime role in changing NSW from a penal colony (1788 on) to a free society (by 1842), and that the colonists used the (imported) rule of law ideology to settle the terms on which authority would be exercised in the colony and to force the colonial power to grant its penal colony the institutions and conditions of a free society
Main Topics
- Early legal developments in England over the 9th-16th centuries, including an assessment of the historical and contemporary significance of Magna Carta
- The struggles between the courts, parliament and the monarchy in seventeenth century England, with special attention to the conflict between Sir Edward Coke and James I, the English Civil War and the Glorious Revolution
- The Restoration, Habeas Corpus, the Bill of Rights and the Act of Settlement
- 18th century England's political consolidations, concept of felony attaint, and use of hanging and transportation, including consideration of the assessments of 20th century historians like EP Thompson and Douglas Hay
- The reception of legal institutions and processes into the penal colony of New South Wales
- The role played by the rule of law in the political formation of a new society in New South Wales
- The development and roles of the judiciary and the legal profession
- Case study: the long-term development of a tort (Trover, the precursor of Conversion)
- Case study: the gradual emergence of the law of contract from Covenant, Trespass, and in particular Assumpsit
- Case study: Debt, imprisonment for debt, bankruptcy and insolvency
Assessment
There will be 3 component elements:
Class participation 20%
Presentations etc in class 20%
Research essay 60% Course Texts
Prescribed
DJ Neal, The Rule of Law in a Penal Colony: Law and Power in early New South Wales (Cambridge University Press, 2002 (paperback) edn).
UNSW Law School Course Guide and Study Materials
- JH Baker, An Introduction to English Legal History 4th edn (London, Butterworths, 2002)
- JH Baker & SFC Milsom, Sources of English Legal History (London, Butterworths, 1986)
- JM Bennett & AC Castles (eds), A Source Book of Australian Legal History (Sydney, Law Book Co, 1979)
- AC Castles, An Australian Legal History (Sydney, Law Book Co, 1982)
- DJ Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, OUP, 1999)
- B Kercher, An Unruly Child: a History of Law in Australia (Allen & Unwin, 1995 – now www.ebooks.com)
- B Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales (Federation Press, 1996)
- SFC Milsom, Historical Foundations of the Common Law, 2nd edn (London, Butterworths, 1981)
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