Topics in Legal History

7 May 2013

This elective unit of study for Sydney LLB and Sydney JD students is taught by James Watson, Barrister, Banco Chambers, Sydney with guest lecturers.

As McHugh J once said in a special leave application in the High Court: "A lack of understanding of legal history is a misfortune, not a privilege."
In recent years the High Court, other judges and some academics have been calling for practitioners to learn and understand more of the history of the common law, in particular in cases where courts are called upon to develop an existing doctrine of law or reconcile a doctrine to modern circumstances.

This course is intended to introduce, and encourage an appreciation of, legal history as both substantively important, and a necessary skill for students in a deeply historical and precedential system of law.

The course has a particular focus on commercial law.

The course does not assume any formal study in history; law has its own commitment to the topic.

The course is structured around essays prepared by judges, academics and barristers for the purpose of this course.

Some authors will present their essays to the class and, accordingly, the course will be taught at the Phillip St Building.

This year the Hon WMC Gummow will present a number of lectures.

And, as happened last year, we hope a number of other judges, silks and academics will again attend lectures to present their own essay and lead class discussions.

The course will touch on the origins of common law; the elementary foundations of common law; the traditional structure of courts and the writ; the role of Roman Law; the earliest authors and judges who established the common law tradition, and their continuing significance; important foundational statutes, eg Magna Carta, the Statute of Westminster II, the Bill of Rights and the Act of Settlement; possession & ownership; real property; trespass, actions on the case, assumpsit, contract & tort; 'conscience' and the development of equity; the arrival, foundation and development of law in Australia.

The course will introduce some of the individuals, books, and historians, who have had (and still have) a major influence on the development of the law, beginning as things happened with Domesday (c1086); Glanvill (c1189); Bracton (c1279); Fitzherbert (c1577); Coke (c1644); Blackstone (c1768); Ames (c1893); Maitland (c1914), and Holdsworth (c1944).

The continuing significance of legal history to practice will be examined (and demonstrated) including by reference to the works of Story (in the US); the judgments of Justices Isaacs, Kitto, Windeyer, and Dixon in Australia; and a number of recent High Court decisions which have turned on knowledge of and reasoning from the history of the common law.


  • to introduce and for students to become familiar with the resources available, language, topics, themes, and books in the history of the common law;
  • to introduce and for students become familiar with the names and works of legal historians, judges and certain pivotal judgments making up the common law system;
  • to examine and consider critically legal history as a tool of academic analysis, judicial reasoning, and application in practice today;
  • to examine particular topics in legal history which still have an important bearing on the law as it is practised and being developed today;
  • for students to be able to use the resources and knowledge to research and write a short essay on a topic, case or point of legal history.


Semester 2 2013
Tuesday + Thursday
4.30pm - 6.30pm
LT 6, St James Campus
173-175 Phillip Street Sydney NSW 2000


  • 1 x 2,500 Word Essay
  • 1 x 1.5 Hours Closed Book Exam

Applicable Degrees

  • Combined Law (Sydney LLB)
  • Juris Doctor (Sydney JD)

The Australian Legal History Essay Competition

Each year The Francis Forbes Society for Australian Legal History holds The Australian Legal History Essay Competition including for students enrolled in a University course in the relevant year. Students will be strongly encouraged to submit their essay, or a further version of it, to that competition. Submissions for that competition are to be received at the Forbes Society by 5pm 9 December 2013. The Forbes Society may publish one or more of the winning essays, as well has offering a generous prize. For more information see:


Please contact the Professional Law Degrees Team:

Please note that the information contained within this flyer may be subject to change. Please contact the Sydney Law School to confirm the relevant details.

Contact: Greg Sherington

Phone: +61 2 9351 0202

Email: 1d020b2143152d2d1706275432205c371b1c1d36172d1e0d2d23785219