LAWS1700 Study Guide - Final Guide: Glanville Williams, Plain Meaning Rule, Penal Colony
LEGAL METHOD SUMMARY
Contents:
Development of Common Law in England
Receptions of English Law in Australia
Federation, Political Institutions, Judiciary and the Courts
Legal Reasoning and Case Analysis
Precedent Theory and Case Analysis
Following and Distinguishing Precedent
Fundamental Legislative Principles
Theories of Statutory Interpretation
Statutory Interpretation
The Commonwealth
Queensland
Ratio Decidendi in a Statutory Context
Peldan v Anderson
Kiamani v Captain Cook Cruises
Carlill v Carbolic Smoke Ball Company
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords
Hawkins v Clayton and Others
Amos v Brisbane City Council
King v Parsons
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Development of Common Law in England
Customary law: non-written laws that develop from the customs within a particular
society or within a group in a particular society.
Customary law arises through and is enforced by its recognition and general
acceptance.
Varied across the pre-Norman Kingdoms in England because tribes had
different habits and attitudes to life.
Angles, Saxons and Jutes: Invaded Britain,
Angle-Saxons brought own customary laws. The cultural difference b/w the
Anglo-Saxons and the Celts meant that Anglo-Saxon customary law differed
from the various forms of Celtic customary law.
Invaded tribes shifted Celts to west of Britain (Wales and Scotland)
Dooms: King of Wessex (Alfred) believed that unification of the different Anglo-
Saxon kingdoms in England was necessary to ensure protection of the kingdoms
from Danish invaders.
Codification of parts of the existing Anglo-Saxon customary law would also
strengthen the unity between the Anglo-Saxons kingdoms.
Introduced dooms (contained laws) in an attempt to unify the kingdom.
Norman Conquest – William the Conqueror defeated Harold at The Battle of
Hastings 1066 becoming the King of England. He introduced feudalism and therefore
a strong central government, allowing for a centralised system for the administration
of justice, contributing to the emergence of a common law throughout England.
Latin was introduced as the official language of England. This allowed the
introduction of technical terms for legal purposes
He didn’t replace the Anglo-Saxon law due to practical difficulties
Use of precision in legal terminology through Latin formed part of the new
administration of centralised justice in Norman England.
A common law in England could NOT develop without a centralised system of
justice in place.
oLatin contributed to the information of the new system of centralised
justice, necessary for a common law in England to develop.
oAnglo-Norman provided the necessary flexibility within legal
terminology to enable the development of a common law within a
centralised system of justice.
Feudal Tenure:
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oBrought to England by Normans as an essential part of the
administration of government in the country.
oFeudalism functions as a mechanism of protection of land from
invaders.
oFeudal systems: a system whereby local people sought protection and
subsistence from the local lords, and in return, the local people
provided services to the lord Local Lords gained control over land
and political power.
oOver time a body of land law developed that was applied throughout
England
oThis body of land law was an important early influence on the
emergence of a common law in England
oTenure holding of land by a tenant from a lord.
Chief lords were sent by the King to maintain the law and
order in the country. They were responsible for governing and
protecting the local people.
Rights given to chief lords to raise taxes and to demand
military service.
Subinfeudation: process where a chief lord gives land to a
tenant for providing military services.
Henry II introduced the writ system and created permanent courts with professional
judges. The formalised writs were the basis of any action and influenced the
development of the common law. However, they were strict and inflexible.
Centralisation of the administration of justice
oNecessary to provide the institutional structure through which royal
judges could start to develop a systematic body of rules common
law
oExisting customary law in England varied across the country.
Therefore a centralised structure could develop the existing body of
customary law into a common law that applies consistently
throughout England.
oDevelopment of common law also depended on the writ system.
oThe reign of Henry II provided the platform for its future development
oThe centralisation of justice in England was an important issue in the
eventual development of a common law in England provided the
platform for common law to develop
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Document Summary
Customary law: non-written laws that develop from the customs within a particular society or within a group in a particular society. Customary law arises through and is enforced by its recognition and general acceptance. Varied across the pre-norman kingdoms in england because tribes had different habits and attitudes to life. Anglo-saxons and the celts meant that anglo-saxon customary law differed from the various forms of celtic customary law. Invaded tribes shifted celts to west of britain (wales and scotland) Dooms: king of wessex (alfred) believed that unification of the different anglo- Saxon kingdoms in england was necessary to ensure protection of the kingdoms from danish invaders. Codification of parts of the existing anglo-saxon customary law would also strengthen the unity between the anglo-saxons kingdoms. Introduced dooms (contained laws) in an attempt to unify the kingdom. Norman conquest william the conqueror defeated harold at the battle of.
