Legal Emigres and the Development of Australian Tort Law

Article excerpt

[The intellectual history of Australian private law remains largely unwritten because Australia was seen as merely following the law as laid down in England. This article challenges the traditional paradigm by considering the influence of a number of legal emigres who came to Australia immediately after the Second World War. Concentrating on the law of tort, the article considers how two of these emigres--Wolfgang Friedmann at The University of Melbourne and John Fleming at Canberra University College--were at the forefront of a new breed of tort scholarship, not based on English traditions, that contributed to the increasing intellectualisation of the Australian legal academy.]


I   Introduction
II  The Australian Academy before the Second World War
III The Creation of an Australian Legal Academy
IV  Legal Emigres and the Law of Tort
V   Conclusion


The history of Australian private law remains one of the great gaps in Australian legal history. Little detailed research has been undertaken which explores the content of private law in this country or that content's relationship with the law of England on which it was ostensibly based. Nor have any studies considered why any changes which may have occurred took place. Legal historians have ignored the possibility that wider historical changes may have influenced the development of private law because private law itself has not been thought a worthy subject of historical study.

This article considers one aspect of this heretofore forgotten history. It considers the extent to which academic thinking about private law in this country was influenced by a new breed of member of the Australian legal academy after the Second World War. It does not aim to be comprehensive in its treatment of such persons. Rather, the aim is to demonstrate that any history of Australian private law should consider not only legal doctrine as expressed in judicial decisions (although it must certainly include such analysis) but also the increasing sophistication of legal discourse in Australian law schools. This is not to suggest that judicial decisions were immediately affected by the new academic approach to tort law but neither is it to deny it had any impact at all; the nature of this relationship awaits further research. For present purposes the more modest ambition is to demonstrate that the broader intellectual discussion of law was influenced by the composition of the Australian legal academy. Put simply, we should not be surprised if we find that changes in thinking about Australian law can be explained in part by reference to changes in the academy. (1)


Any change made by incomers to the Australian legal academy after the Second World War can only be understood by reference to the function and composition of the academy prior to that time. A number of structural features characterise this earlier period. First, there were only a small number of law schools. In 1939, the six state universities all had law schools, although Queensland and Western Australia commenced teaching law only towards the end of that period. (2) More importantly, the purpose of university law schools was seen as producing practicing lawyers. (3) This had two consequences. First, the majority of the staff in the law schools were members of the profession who taught on a part-time basis (usually to part-time students). The figures are truly staggering: only one Australian law school had more than two full-time staff members by the beginning of the Second World War--Sydney--where the third was a full-time tutor. (4) The predominance of part-time staff from the profession meant that Australian law schools were not a fertile ground for the creation of an intellectually dynamic culture and many within and without the profession saw legal education at universities merely as a proxy for professional accreditation. …