Topic 1: Introduction to law: The western legal tradition and sources
The Western Legal Tradition
Two families of legal system come under the western legal tradition
common law (adversarial) system
civil law (inquisitorial) system
- Common law and civil law combine to constitute the western legal
tradition. However neither system exists today in pure form. All
relevant legal systems in the western world are hybridised to some
degree, drawing on either both these systems or other legal
- Both the systems are strongly influenced by precepts of
Christianity and Roman law. Thus, while there are significant
differences between them, they share common roots
- Perhaps more importantly, both models share the same aims and
overall objective (the establishment of systems for the just
resolution of disputes and the maintenance of social order) and
share the ideology that law has a central role to play in all social
- Essentially both the common law and civil law systems have parallel
functions in their respective societies. However they differ
fundamentally in the means employed to fulfil these functions
(Refer ALRC, pgs 10-11 of supp reader).
- The administration of the western legal tradition is (in both
common law and civil law systems) entrusted to a specific core of
people who engage in specialist training which equips them for the
THE ROMAN LEGAL CODE
- influenced by Greek and Christian legal principles
- various parts of the code were collected and organised by Emperor
Justinian into texts (Corpus Juris Civilis)
1 - practice of Roman law ceased in the Dark Ages disoder following
the collapse of the Roman Empire. Written records were lost.
- missing Justinian texts (from late C11) containing the Roman Legal
Code were found in Italy. These were studied intensively be
scholars over time their precepts and principles became the basis
for contemporary civil law, contemplating and sometimes replacing
inadequate customary laws.
HENCEFORTH common law and civil law developed separately.
Common law developed from procedure, methods and decisions of English
Civil law developed on the basis of Roman law, combined with custom,
canon law, local usages and royal decrees
How much influence did Roman law have on the developing common law?
- Natural law = the basis for French and American revolutions and
consequently for the current understanding about the nature of
democratic government. Considered superior until C18. Both
systems of law were influenced by natural law theory
- Common law was enabled to develop its particular characteristics
from its beginnings in late C11 because it was 'common' (ie it was
wide reaching and universal within its boundaries), and because
English government remained relatively stable for the next 8
- Conversely, most European countries were not in a position to
develop complex or wide reaching legal systems
After the French Revolution, Napoleon drew up a detailed civil code
to apply to the whole of France -> By 1810, Code Napoleon
(comprised of Civil Code, Code of Civil Procedure, Commercial Code,
Code of Criminal Procedure & Penal Code) had become law -> Use of
Code Napoleon spread through much of Europe, and it had a strong
influence on the C20 legal systems of civil law countries ->
However, most nations have gone on to draft their own codes, and
the French Code has itself been revised.
2 Sources of Law (in Australia)
Native Title and Customary Law
- Australia was a settled rather than a conquered colony. Thus,
English law came to Australia along with British sovereignty.
- Common law was the only legally recognised scheme of land
ownership. Traditional Aboriginal concepts of land ownership
ceased to exist in the eyes of the newly arrived law.
- Where the two cultures (settler and indigenous) came into contact,
the result was the 'virtual destruction of traditional Aboriginality'
(LDL). Policies of assimilation and integration in the 1950s-70s
- 1967: Constitutional amendment gave the Commonwealth the power
to erase traces of previous 'protectionist' legislation which States
were unwilling or unable to repeal
- 1976: passage of Aboriginal Land Rights (NT) Act 1976 (Cth), which
allowed blocks of land in NT to be granted to land trusts if
traditional Aboriginal land ownership was proved. This marked the
first major step to preserve aboriginality in Australia.
- Today customary law is somewhat recognised in the Australian legal
system (eg traditional Aboriginal marriages are legally recognised,
some forms of customary law punishment allowed as alternatives to
custodial sentencing) but by and large it is not a major source of
law. This may be unjust. However the challenges that greater
recognition of customary law may present to our already
established legal system should be considered before any drastic
change is recommended.
- most Public International Law principles do not form part of
Australian common law.
- Countries are obliged to abide by the rules and provisions of
treaties and conventions they are party to. However, the
3 international system is not hierarchical there is no superior
authority to compliance, no precedent and no ratio decidendi.
- The rulings of the ICJ are not binding and attendance is voluntary
- Customary international law = a body of rules that has crystallized
over time through general attendance
However, some PIL principles do impinge on the domestic common law
- HCA interprets the Constitution by referring to international
treaties and Australia's international obligations
- International agreements that Australia is party to are enacted
into Australian law
- When there are ambiguities in legislation, the legislation is
interpreted in conformity with Australia's international treaty