The Common Law: Whither or Wither? Occasional Address to Australian Lawyers Alliance Act Branch Conference, 24th June 2011
Sully, Brian, University of Western Sydney Law Review
Every year, and normally between Christmas and New Year, I find myself asking, sometimes family members, sometimes friends, whether they happen to have caught that year's broadcast of the Queen's Christmas message. The forms of the answers vary from the exasperated through the scornful and incredulous to the frankly obscene. The substance of the answers is, as of course you have divined, in general, no. Yet, if there is one lesson that a life in the law teaches, it is, surely, that there is always something new to learn albeit sometimes from a source that seems at first blush to be less than promising.
So it was that several years ago, and during the course of that year's Christmas Message, the Queen recounted some advice that had been given to Her Majesty early in her reign and by her first Prime Minister, Sir Winston Churchill. It seems that Churchill gave this advice: 'Always remember that the further back you can look, the further forward you can see.'
I imagine that one could be confident that both Churchill, when he gave that advice, and the Queen when Her Majesty received and later recalled it, did not advert in any particular way, indeed probably did not advert at all, to the Common Law. Yet it has always struck me that Churchill's aphorism explains simply and comprehensively the essence of the Common Law; the technique of the Common Law; the durability of the Common Law and the continuing relevance of the Common Law.
When I was provided with the first draft of the Conference agenda and asked whether I would be the first speaker at the Conference, I could not but notice that a good deal of the programme is to be devoted to a panel discussion about what their proponents are pleased to call 'reforms' of the Common Law in connection with certain categories of compensatory damages in civil cases and in connection with the current law respecting workers compensation. I felt that it was not quite appropriate for one who might be described as a blast from the past, and a New South Welshman at that, to plunge enthusiastically into the particular controversy. I did perceive, however, that it might be useful to set the scene for what is to follow in the panel discussion, by saying something more general about the Common Law in the 21st Century.
The unashamed Common Lawyer, of whom I am certainly one, who takes the Churchillian advice and looks back, can see in fact a very long way. He/she can see a continuum in the development of the Common Law that begins, to take a convenient starting point, in 1154 when Henry II succeeded to the English throne. The measure for present purposes of the reign of Henry II is summarised thus by Mr WJV Windeyer, (later Sir Victor Windeyer, a Justice of the High Court of Australia), in his lectures on legal history:
[H]e established a permanent court of professional judges who were royal servants. This made the administration of justice the task of the central authority in the kingdom and thus led to the uniform development of a true common law, common to all Englishmen, whether of English or Norman ancestry, and common to all England. (1)
From that initiative, and continuously throughout the 850 years that separate Henry II from us, there has developed a system of Common Law that is one of the greatest achievements of Western civilisation and that is as much a part of our Australian history, culture, identity and inheritance as it is of English history, culture, identity and inheritance.
It is, of course, not possible to discuss in any decent detail the highs and the lows of that 850 years of development of the Common Law. It is, however, possible to attempt a summary of the principal legacies of that development. Professor A R Hogue in his work Origins of the Common Law is admirably succinct: 'The rule of law, the development of law by means of judicial precedents, the use of the jury to determine the material facts of a case, and the definition of numerous causes of action--these form the principal and valuable legacy of the medieval law to the modern law. …