The Impact of Law's History: What’s Past is Prologue (Palgrave Modern Legal History)

This book considers how legal history has shaped and continues to shape our shared present. Each chapter draws a clear and significant connection to a meaningful feature of our lives today. Focusing primarily on England and Australia, contributions show the diversity of approaches to legal history’s relevance to the present. Some contributors have a tight focus on legal decisions of particular importance. Others take much bigger picture overview of major changes that take centuries to register and where impact is still felt. The contributors are a mix of legal historians, practising lawyers, members of the judiciary, and legal academics, and develop analysis from a range of sources from statutes and legal treatises to television programs. Major legal personalities from Edward Marshall Hall to Sir Dudley Ryder are considered, as are landmarks in law from the Magna Carta to the Mabo Decision. Foreword Contents Notes on Contributors List of Tables Chapter 1: Introduction Chapter 2: Politics and Profession: Sir Dudley Ryder and the Office of Attorney General in England, 1689–1760 Introduction Attorneys General in General, 1689–1759 Dudley Ryder as Attorney General Ryder’s Work as Attorney General Conclusion Bibliography Manuscript Sources Articles, Books and Reports Chapter 3: Lord Atkin’s Dissent in Liversidge v Anderson: Indecorously Orthodox? Prologue Staging Players Act I: Substance and Orthodoxy Act II: Form and Decorum Act III: Decorum and Impact Epilogue References Cases Chapter 4: The Challenges to the UK Constitution Since 1979 and Brexit Introduction The British Constitution and the Sovereignty of Parliament The Thatcher Government The Blair Government The European Convention on Human Rights Immigration Brexit and the 2019 Election Conclusion Chapter 5: The Age of Rumpole Is Past? Legal History on British Television Introduction The History of Law on British Television The First Defender: Garrow’s Law The Great Defender: Marshall Hall The Other Great Defender: Rumpole Barristers to the Rescue? Or Barristers Needing Rescue? An Australian Coda Chapter 6: The History of Legal Marketing in Australia and New Zealand Introduction The Origins of the Legal Profession and the Marketing of its Services Legal Dress as a Marketing Tool The Inns of Court as Legal Guilds Touting, Maintenance and Champerty Legal Advertising The Evolution of Marketing as an Academic Discipline Historical Approaches to the Marketing of Legal Services Soft Legal Skills Legal Doctrines Precedent Statutory Interpretation Conclusion Chapter 7: The Historical Development of the Fault Basis of Liability in the Law of Torts Introduction Ancient History: Strict Liability Middle Ages: Strict Liability Sixteenth, Seventeenth and Eighteenth Centuries: Strict Liability Development of Fault as the Basis of Liability Other Influences Favouring Fault-Based Liability over Strict Liability The Forms of Action, Including Development of the Action on the Case Developments in Criminal Law Statutory Reform Back to the Future: Rylands v Fletcher Strict Liability Philosophical Debate: Strict Liability Versus Fault Liability Unfinished Business Conclusion References Chapter 8: What Albert Did and What Albert Did Next: Albert Bathurst Piddington—The High Court Judge Who Never Sat Introduction Early Life and University Days Law and Politics at the Turn of the Century: Federation and Arbitration The High Court: Appointment and Resignation What Albert Did Next Chapter 9: Path Dependency, the High Court, and the Constitution Introduction Path Dependency Examples Grants Interstate Trade and Commerce Analysis Opportunity and Exit Lock-in and Reliance Conclusion Chapter 10: The Use and Misuse of Legal History in the High Court of Australia Introduction The English Literary Tradition in Australia A Case Study The Importance of History Appendix Chapter 11: Did the Early British Colonists Regard the Indigenous Peoples of New South Wales as Subjects of the Crown Entitled to the Protection of English Law? Introduction The State of the Understanding of the Law in 1788 Three Legal Questions for the Colonists Governor Phillip’s “Policy” After Phillip, up to Macquarie The Permanent Supreme Court of NSW and After Conclusion Appendix: Transcription of Depositions Taken on or About 1 June 1788 at Sydney Cove Before the Magistrates Chapter 12: Land, the Social Imaginary, and the Constitution Act 1867 (Qld) Introduction Colonial Queensland and Property as Wealth A New Venture in Imperialism Constitutional Provision Answering Contemporary Property Questions Chapter 13: The Good, the Bad and the Ugly: A Short History of Biosecurity Regulation in Australia Introduction The Historical Legislation The Good The Bad and the Good: The Prickly Pear Cactus The Bad—and the Ugly: The Cane Toad (Bufo marinus) “Bad” with Some Good News: Rabbits (Oryctolagus cuniculus) Conclusion Chapter 14: Legal Pluralism Past and Present: Magna Carta and a First Nations’ Voice in the Australian Constitution Introduction What Is Legal Pluralism? Magna Carta and Legal Pluralism Magna Carta Applying Tamanaha’s Pluralism to Magna Carta Limitations of Tamanaha’s Approach A First Nations Voice in the Constitution and Legal Pluralism Uluru Statement and a First Nations Voice in the Constitution A First Nations Voice in the Constitution: An Application of Legal Pluralism Conclusion Index