Golder, Ben --- "Law and Justice in Australia: Foundations of the Legal System" [2005] SydLawRw 8; (2005) 27(1) Sydney Law Review 181

• Books

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Books

LAW AND JUSTICE IN AUSTRALIA: FOUNDATIONS OF THE LEGAL SYSTEM by Prue Vines, Oxford University Press, Melbourne, 2004, 374pp, ISBN 0195516400

Law and Justice in Australia, the textbook, has been several years in the making. As the author states in the preface, the text ‘grew out of the first year legal systems course at the University of New South Wales, and previous teachers in that course have contributed much to the final shaping of this book’ (p. xvi). As such, it reflects the longstanding concern of that law school to teach law and legal doctrine in a social context with an overriding commitment to social justice and to teaching its students how the law impacts upon disadvantaged and marginalised communities. Law and Justice in Australia, designed as an introductory text for first year law students, both reflects and continues this fine tradition. It is lucidly written and pitched at a linguistic and conceptual level appropriate for first year students. The present reviewer can attest first hand (having used the manuscript in an earlier incarnation as a teaching text whilst a member of staff at the University of New South Wales) to its utility both as a textbook and as a ‘springboard’ for wider class discussion of central issues about law and justice.

The text is organised into four parts. Roughly speaking, the first three parts are historical and the final part methodological. Part One deals with the legal institutions of mediaeval and early modern England (‘The English Heritage’); Part Two mainly addresses the legal, social and political effect of colonisation upon the Indigenous people and the early attempts of the colonisers to establish and assert the rule of law (‘The Impact of the English Heritage’); and, Part Three traces the evolution of the Australian legal system from colonial times to Federation (‘Moving Towards Independence’). The final section of the book, Part Four (‘Drawing on the Heritage: Legal Institutions in Action’), introduces students to topics such as statutory construction and the doctrine of precedent.

There are two main achievements of this textbook. The first is its thoughtful and engaging presentation of legal history. It is a difficult task to generalise accurately about Australian undergraduate law students, who as a group are quite diverse. One general observation it is possible to make, however, is that they largely view legal history (particularly of the English variety) as at best a charming irrelevance and at worst a painful imposition upon their time, as something to be endured whilst waiting for the teaching of ‘real law’ to begin. As a group, they seem generally impervious to the delights of the old mediaeval forms of action; they are unmoved by the drama of the confrontations between Sir Edward Coke and King James I; and the birth of equity in the Courts of Chancery routinely engenders within their ranks the kind of vacant stare normally reserved for suggestions of extra-curricular reading. It is a credit to the author that the presentation of this historical material — essential to a proper understanding of many contemporary legal debates — elicits none of these responses. The chapters dealing with legal history do so in a lively and interesting fashion. Students are better able to relate to the legal history presented in these chapters for the clever use of stories (presented as separate case studies within differently shaded text-boxes) which personalise the legal historical events. Abbot Henry’s story (pp. 21–3) encapsulates the vagaries of the royal justice system, Henry and Susannah Kable’s story (a recurring theme — pp. 2, 132) illustrates the centrality of the rule of law in the nascent penal colony, and the story of Barangaroo and Governor Phillip (p. 93) points to the huge cultural differences between the invading British and the Indigenous inhabitants of Australia.

The textbook’s second major achievement, and in this reviewer’s opinion the more important of the two, is its location of the law within a social, cultural, historical and political context. Vines’s text demonstrates how the central concepts of the contemporary Australian legal system — the rule of law, responsible and representative government, and the separation of powers — arose from, and were developed within, specific historical and cultural conditions. For example, the doctrine of the separation of powers is given meaning through a discussion of the turbulent events of the Civil War and the Glorious Revolution. Similarly, the concept of the rule of law is discussed in the light of both early modern English history and the ideological work which the concept performed in the new colony, as various segments of New South Wales society sought to deploy rule of law-based ideas to further their political goals. However, this contextualisation of the law is not solely a historical exercise, for in reflecting on the way in which our current legal systems and doctrines were developed in a specific historical setting, students come to an understanding of the contingency of the law, how it could have been formed and developed differently and (most importantly) which groups were excluded from its formation and development. Obviously, race and gender are central themes here. The disastrous impact of colonisation, legalised discrimination and persistent racism in the wider Australian community upon Indigenous Australians is a recurring theme of the book (see especially chapters 5 and 9), as is the historical and ongoing exclusion of women from legal and political institutions (see especially chapters 3 and 7). Importantly, this emphasis on the social and political exclusion of women, Indigenous Australians, and other historically marginalised groups from the control and direction of the Australian legal system is sensitively and subtly managed. Vines often uses the ‘Notes and Questions’ section at the conclusion of extracts to prompt students into questioning the law and its operation, rather than simply asserting that the law is discriminatory and oppressive. This technique encourages critical reflection and class discussion while ensuring that students are not simply ‘preached’ to and can draw their own, ultimately stronger, conclusions.

The concluding material on the theory and practice of the doctrine of precedent is another strength of the book. In chapter 12 the author presents various judicial statements on what exactly it is that judges do when they (purport to) apply precedent (for example, Diplock LJ’s famous judgment in Dorset Yacht Company v Home Office [1970] UKHL 2; [1970] AC 1004, extracted on pp. 303–4, and Heydon and Kirby JJ’s recent extra-judicial sparring in the pages of Quadrant and beyond, discussed and extracted on pp. 309–10). In chapter 13, the author then extracts a number of cases on the tort of nuisance in order to demonstrate as a practical matter how case law develops. If one criticism can be made of the book it is that the theoretical material is not more extensive, but then again, Law and Justice in Australia does not pretend to a complete treatment of jurisprudence and legal philosophy.

Finally, as in all good teaching texts, there are some well-chosen extracts from case law and secondary materials. Some of these gems are recent, such as the English Court of Appeal decision in R v Wacker [2003] QB 1207 (extracted to demonstrate the distinction between civil and criminal law); some of them are old teaching favourites, such as the appendix to James Boyle, ‘Anatomy of a Torts Class’ (1985) 34 American University Law Review 1003 (still the best primer on legal argumentation); and, some of them are actually quite funny, such as Blue J’s wilfully perverse decision in Rejina v Ojibway (1965) 8 Criminal Law Quarterly 137 on what constitutes a ‘small bird’ for the purposes of s2 of the Small Birds Act, RSO, 1960, c 724. These illuminating extracts are embedded within a text which is clearly written and which is able to capture and stimulate the imagination of first year law students. Law and Justice in Australia spurs first year law students to analyse critically the philosophical, historical and political foundations of the Australian legal system. For this reason alone, the book will hopefully become a recommended first year text in many Australian law schools.

BEN GOLDER

Casual Lecturer, School of Law, University of East London