Western Legal Tradition

To what extent did the concepts and institutions of the western legal tradition influence the colony of New South Wales and, ultimately, the development of the Australian legal system?
Australia inherited a legal system and a system of government from its colonial power, Britain. An understanding of Australian law requires tracing of development of law and legal institutions in England. Britain shares many of the basic concepts of law found in other parts of Western Europe. The underlying concepts and principles of law of Western Europe are generally referred to as ‘Western Legal Tradition’. Western legal tradition along with English law greatly impacted the legal system in the colony of New South Wales. This essay will explore the influence of western legal tradition on the legal system of New South Wales leading to the development of Australia’s own legal system.
Overview of the western legal tradition and its significance to Australian law
There are two distinct systems of law in the western legal tradition despite sharing similar philosophical underpinnings. Britain follows the common law and the continental Europe follows civil law. These two systems represent a single western tradition, with a shared understanding that law has a central role to play in all social organisations. It has three main characteristics, a) the autonomy of law - it remains differentiated from politics, religion and morality; b) the centrality of law - law as a means of social ordering and change pervades in all aspect of society; and c) moral authority of law - law is respected, i.e. law should be obeyed as a positive obligation and not for fear of punishment.
British concepts and institutions
Many of the legal concepts and institutions like the rule of law, trial by jury, parliamentary sovereignty, representative and responsible government (the parliamentary democracy), judicial independence and many more originated in medieval English history following the Norman invasion in 1066. This conquest impacted on the subsequent development of law and legal system in England. The administration was feudal system. The empire was divided into a number of fiefdoms and each fiefdom had its own law courts. Good governance required unified system of administration and a unified legal system. Unification of legal system was achieved through sending judges around the country deciding civil and criminal cases. These judges applied the law consistently by developing a common set of principles and procedure replacing different customary laws of individual fiefdoms. The body of rules from these rulings became known as common law. Judges applied a principle created in the previous case in future cases with similar facts, and developed the doctrine of precedent. The application of these precedents required a system of reporting and publications. Thus the “common law is the by-product of an administrative triumph, the way in which the government of England came to be centralised and specialised during the centuries after the conquest.”
In 1215 through the Magna Carta many limitations were placed on the authority of the King with the aim of curving arbitrary abuse of power. The King had to agree to rule with a committee of barons. The king also lost the power to tax. No new tax can be levied without the consent of the curia regis. The Westminster model of parliamentary government eventually evolved from this.
Development of the Australian legal system
The acquisition of the Australian continent in 1770s resulted in the introduction of English law in these colonies. The legal system introduced was dependent for its legal validity on a number of British statutes, including the Australian Constitution Act 1900. Between 1855 and 1890 the British Parliament granted a limited right to set up a local system of government (granting of responsible government) to individual colonies within Australia.
During the late 19th century efforts were made to create one state out of six independent colonies, and a series of conventions were held in the 1890s to draft a constitution agreed by all colonies. Following a referendum in each colony to approve the draft constitution the British Parliament passed this Constitution paving way for the independence of Australia. The removal of British Parliament’s power to enact laws for Australia was formally done through the Australia Act 1986 (UK) passed by the British parliament. This Act also made the High Court of Australia the last court of appeal in Australia. This meant final independence from Britain.
Development of a distinct legal system in Australia
Though the Australian law has originated and developed from English law but due to local circumstances it was impracticable to transplant English law in New South Wales as demonstrated in Kables case. Henry and Susannah Kable were prisoners being transported to Australia. They deposited money with their ship's captain but the money disappeared. Under English law, the Kables, being prisoners, were considered 'attainted' and therefore were unable to sue people in civil matters. However, they were allowed to sue in New South Wales, as it was realised that this law of 'attaint' is impractical in a new penal colony where everyone is a prisoner. This case marked the beginning of departure of application of English law paving the way for a new distinct system of law to evolve in New South Wales.
However, in line with the western tradition the Australian legal system is based on a fundamental belief in the rule of law including equality before law, the independence of the judiciary. Many safeguards exist to ensure that people are not treated arbitrarily or unfairly. Principles such as procedural fairness, judicial precedent and the separation of powers are also fundamental to Australia’s legal system.
Along with these western traditions clearly there were many distinguishing features separating Australian system from English system as manifested in the Australian Constitution of 1901. Unlike Britain Australia has a written constitution. Australia follows a federal system contrary to British unitary system. In a federal system the constitution distributes the powers between the federal government and the states whereas in a unitary system there is no need for a distribution of powers. The states and territories have their respective government with independent legislative powers. Each of the federal and state governments has three separate branches of government—legislative, executive and judicial.
The British Parliament enjoys Parliamentary Sovereignty, i.e. it has the right to make or unmake any law, and a law passed by the parliament cannot be overridden or set aside by another authority. In Australia, the powers of the parliament are limited by the constitution and the Australian High Court can declare a law passed by the parliament invalid if it is unconstitutional.
Moreover, the British constitution is flexible whereas the Australian constitution is rigid. The British Upper house, House of Lords, comprises of non-elected nominated members whereas the upper house in Australia, the Senate, comprises of directly elected members representing their respective states and territory. Voting in Britain is voluntary though compulsory in in Australia.
From the above discussions it is clear that the Australian legal system and the institutions of governance were influenced, created and shaped by the British law. Despite, these influences due to Australian distinct historical and political needs there emerged a separate legal system in Australia.