Outline

Overview

The common law is an essential part of the Australian legal system, as well as many others around the world. This unit of study examines the nature of the common law from the point of view of jurisprudence. We will begin with a survey of the classic Common Law Theories developed in England during the seventeenth century; from there, a variety of problems surrounding the common law which these theories made salient, and which still puzzle us today, will be examined. Topics include: the nature and authority of precedent, the distinctiveness of legal reasoning, the nature and questions surrounding the validity of customary law, the relation between the common law and the ideal of the rule of law, among others.

Unit details and rules

Academic unit	Law
Credit points	6
Prerequisites ?	None
Corequisites ?	None
Prohibitions ?	None
Assumed knowledge ?	None
Available to study abroad and exchange students	No

Teaching staff

Coordinator	Michael Sevel, michael.sevel@sydney.edu.au

Type	Description	Weight	Due	Length
Assignment	Essay (100%) Students to write on topic of their own choice with prior approval	0%	- Due date: 28 Jun 2021 at 12:00	8000 words
Outcomes assessed:
Assignment	Essay (80%) Students to write on topic of their own choice with prior approval	0%	- Due date: 28 Jun 2021 at 12:00	7000 words
Outcomes assessed:
Assignment	Take-Home Exercise (20%) Question released after 8 May (Day 2 of intensive class)	0%	Formal exam period Due date: 18 Jun 2021 at 12:00	1000 words
Outcomes assessed:
Assignment	Essay Plan (0%)	0%	STUVAC Due date: 07 Jun 2021 at 12:00	250 words
Outcomes assessed:

Assessment summary

Students will either complete an Essay (8000 words) for 100%, or the Essay (7000 words) weighted at 80% and the take-home task (1000 words) weighted at 20%.

Each student must submit an essay of not more than 8,000 words (or not more than 7,000 words if the student elects to complete the take-home exercise in addition to the essay).

If the essay is 8000 words it is worth 100%.

If the essay is 7000 words it is worth 80%.

Students must complete one of the assessment options

Assessment Option 1

8000 word essay (100%)

An essay plan (250 words) must be submitted to the lecturer for approval by 7 June 2021. The essay submission date is before 12pm, 25 June 2021.

This essay should demonstrate critical engagement with a topic covered in or substantially relevant to the unit of study materials and themes, based on independent research. Students must write on a topic of their own choice. Prior approval of topics must be obtained from the lecturer.

Assessment Option 2

Students may elect to submit a shorter final essay (of not more than 7,000 words) in conjunction with a take-home exercise, worth 20 marks. This take-home exercise will be a critical and analytical engagement with a specific text among the required readings in the unit of study, covered in either Day 1 or Day 2.

The specific wording of the exercise will be available after Day 2 of the unit of study, and will require a maximum of 1000 words. The take-home exercise will be worth 20%.

1000 word take-home exercise (20%)

The exercise is due before 12pm, 18 June 2021

The specific wording of the exercise will be available after Day 2 of the unit of study, and will require a maximum of 1000 words. The take-home exercise will be worth 20%.

AND

7000 word essay (80%)

An essay plan (250 words) must be submitted to the lecturer for approval by 7 June 2021. The essay submission date is before 12pm, 25 June 2021.

IMPORTANT NOTE: A student must make a satisfactory attempt of all assessment tasks set out for this Unit of Study in order to obtain a Pass mark and grade (or above); otherwise an Absent Fail grade will be recorded as the student’s result for this Unit of Study.

Assessment criteria

The University awards common result grades, set out in the Coursework Policy 2014 (Schedule 1).

As a general guide, a high distinction indicates work of an exceptional standard, a distinction a very high standard, a credit a good standard, and a pass an acceptable standard.

Result name	Mark range	Description
High distinction	85 - 100	Completely answers the question. Contains striking originality of approach or analysis. Demonstrates exhaustive or innovative research (where independent research required). Exceptionally well written, structured and expressed. Is otherwise exceptional in some way.
Distinction	75 - 84	Completely answers the question. Achieves a critical and evaluative approach to the issues. Content and structure is well organised in support of the argument. Demonstrates extensive research and analysis to support a well-documented argument. Generally well expressed and free from errors. Has a clear structure and is well articulated.
Credit	65 - 74	Covers main issues fairly well in answering the question. Contains no significant errors. Demonstrates an attempted critical approach to the issues. Demonstrates reasonably sound research and analysis in addressing the key issues. Has a clear structure and reasonably clear expression.
Pass	50 - 64	Identifies the key issues, but does not follow through with a reasoned argument. Contains some significant errors. Displays satisfactory engagement with the key issues. Offers descriptive summary of material relevant to the question. Superficial use of material, and may display a tendency to paraphrase. Demonstrates little evidence of in-depth research or analysis. Adequate expression. Demonstrates the minimum level of competence and satisfies the requirements to proceed to higher-level studies.
Fail	0 - 49	Does not answer the question. Contains significant or numerous errors. Few or no identifiable arguments. Content that is inappropriate or irrelevant. Lack of research or analysis. Difficult or impossible to understand through poor grammar, expression or structure. Overall, does not demonstrate the minimum level of competence in the assessment.

For more information see guide to grades.

Late submission

In accordance with University policy, these penalties apply when written work is submitted after 11:59pm on the due date:

Deduction of 5% of the maximum mark for each calendar day after the due date.
After ten calendar days late, a mark of zero will be awarded.

This unit has an exception to the standard University policy or supplementary information has been provided by the unit coordinator. This information is displayed below:

The late submission of a piece of assessment, which has not been granted an extension, will attract a penalty of 10% of the total marks available for the piece of assessment per calendar day or part thereof.

Academic integrity

The Current Student website provides information on academic integrity and the resources available to all students. The University expects students and staff to act ethically and honestly and will treat all allegations of academic integrity breaches seriously.

We use similarity detection software to detect potential instances of plagiarism or other forms of academic integrity breach. If such matches indicate evidence of plagiarism or other forms of academic integrity breaches, your teacher is required to report your work for further investigation.

Use of generative artificial intelligence (AI) and automated writing tools

You may only use generative AI and automated writing tools in assessment tasks if you are permitted to by your unit coordinator. If you do use these tools, you must acknowledge this in your work, either in a footnote or an acknowledgement section. The assessment instructions or unit outline will give guidance of the types of tools that are permitted and how the tools should be used.

Your final submitted work must be your own, original work. You must acknowledge any use of generative AI tools that have been used in the assessment, and any material that forms part of your submission must be appropriately referenced. For guidance on how to acknowledge the use of AI, please refer to the AI in Education Canvas site.

The unapproved use of these tools or unacknowledged use will be considered a breach of the Academic Integrity Policy and penalties may apply.

Studiosity is permitted unless otherwise indicated by the unit coordinator. The use of this service must be acknowledged in your submission as detailed on the Learning Hub’s Canvas page.

Outside assessment tasks, generative AI tools may be used to support your learning. The AI in Education Canvas site contains a number of productive ways that students are using AI to improve their learning.

Learning support

Simple extensions

If you encounter a problem submitting your work on time, you may be able to apply for an extension of five calendar days through a simple extension.  The application process will be different depending on the type of assessment and extensions cannot be granted for some assessment types like exams.

Special consideration

If exceptional circumstances mean you can’t complete an assessment, you need consideration for a longer period of time, or if you have essential commitments which impact your performance in an assessment, you may be eligible for special consideration or special arrangements.

Special consideration applications will not be affected by a simple extension application.

Using AI responsibly

Co-created with students, AI in Education includes lots of helpful examples of how students use generative AI tools to support their learning. It explains how generative AI works, the different tools available and how to use them responsibly and productively.

Weekly schedule

WK	Topic	Learning activity
Ongoing	1. Introduction to Jurisprudence and Common Law Theory; 2. Classical common law theory: Blackstone, Coke, Hale; 3. Critics of Common Law Theory: Hobbes, Bentham	Seminar (7 hr)
	1. Nineteenth and early Twentieth Century Developments; 2. Modern Legal Positivism 1; 3. Modern Legal Positivism 2	Seminar (7 hr)
	1. Anti-Positivist Approaches to the Common Law; 2. Custom and the Common Law; 3. Legal Reasoning and the Common Law	Seminar (7 hr)
	1. The Nature of Precedent; 2. The Common Law and the Rule of Law; 3. Conclusions	Seminar (7 hr)

Attendance and class requirements

Attendance: All students are required to attend 70% of classes (or as otherwise specified by the Unit Coordinator) to satisfy the pass requirements for each unit of study. Failure to meet this requirement may result in a student being precluded from sitting the final assessment.

For units offered in Intensive mode, participation in all scheduled sessions may be expected by a Unit Coordinator in order to satisfy the requirements of the unit.

Word count penalty: A piece of assessment which exceeds the prescribed word limit will attract a penalty of 10% of the total marks
available for the piece of assessment for every 100 words, or part thereof. The total word count for essay and other written
assessments will exclude bibliography; footnote numbers; footnote citation; cover page and include body text; headings and subheadings;
quotations; anything other than numbers and citations in footnotes.

Referencing: The Sydney Law School expects you to use the Australian Guide to Legal Citation (4th edition, 2018) for your
footnoting style, although you should confirm this with your lecturer, and a link to the library website where this is set out
comprehensively is available at https://libguides.library.usyd.edu.au/c.php?g=508212&p=3476376.

Study commitment

Typically, there is a minimum expectation of 1.5-2 hours of student effort per week per credit point for units of study offered over a full semester. For a 6 credit point unit, this equates to roughly 120-150 hours of student effort in total.

Required readings

A.W.B. Simpson, “The Common Law and Legal Theory” in Oxford Essays in Jurisprudence, edited by A. W. B. Simpson, Second Series. Oxford: Oxford Univ. Press, 1973. Pp. 77-99

Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning, Chapter 6

Gerald Postema, Bentham and the Common Law Tradition, Chapter 1.

Jeremy Bentham, A Fragment on Government, Preface

Jeremy Bentham, “Truth versus Ashhurst” (1792)

Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England (ed. Cropsey), 53-71

Gerald Postema, Legal Philosophy in the Twentieth Century: The Common Law World, Chapter 1

H.L.A. Hart, The Concept of Law (rev. ed), Chapter VII

Joseph Raz, Practical Reason and Norms, 123-148, 170-177.

Joseph Raz, The Authority of Law, 105-115

Joseph Raz, Between Authority and Interpretation, Chapter 7

Ronald Dworkin, Law’s Empire, Chapter 6

Ronald Dworkin, Taking Rights Seriously. Ch. 2: “The Model of Rules I”

Riggs v Palmer, 115 N.Y. 506 (1889)

TVA v Hill 437 U.S. 153 (1978)

Alan Cromartie, “The Idea of Common Law as Custom,” in The Nature of Customary Law, eds. Amanda Perreau-Saussine and James B. Murphy (Cambridge, 2007). [2 hour loan]

Gerald Postema, “Custom in International Law: a Normative Practice Account,” in The Nature of Customary Law, eds. Amanda Perreau-Saussine and James B. Murphy (Cambridge, 2007).

“Reasoned Decisions and Legal Theory,” David Dyzenhaus and Michael Taggart, in Common Law Theory (2007)

“The Principles of Legal Reasoning in the Common Law,” Melvin A. Eisenberg, in Common Law Theory (2007)

Joseph Raz, Between Authority and Interpretation, Chapter 9

Kremen v Cohen, 337 F.3d 1024 (2003)

Donoghue v. Stevenson [1932] AC 562

Chester v Council of the Municipality of Waverley (1939) 62 CLR 1 (Evatt J dissent)

:Neil Duxbury, The Nature and Authority of Precedent, Chapter 3

Bush v Gore, 531 U.S. 98 (2000) (Majority opinion)

Mabo v Queensland [1992] HCA 23:

Joseph Raz, The Authority of Law. Ch. 11: “The Rule of Law and its Virtue”

T.R.S. Allan, “The Rule of Law as the Rule of Reason: Consent and Constitutionalism,” (1999) Law quarterly review 115: 221-244.

E.P. Thompson, “The Rule of Law,” from Whigs and Hunters (1975)

Bush v Gore, 531 U.S. 98 (2000) (Stevens J, dissent)

Learning outcomes

Learning outcomes are what students know, understand and are able to do on completion of a unit of study. They are aligned with the University's graduate qualities and are assessed as part of the curriculum.

Outcomes
Graduate qualities

At the completion of this unit, you should be able to:

LO1. understand the basic contours of classic common law theory of the seventeenth and eighteenth centuries
LO2. understand the primary lines of criticism of that theory, as exemplified in the thought of Thomas Hobbes and Jeremy Bentham
LO3. become familiar with how general jurisprudence has treated the common law throughout the twentieth century
LO4. apply and understand those theories with regard to actual examples of the common law, eg, a line of cases in Australian law.

Graduate qualities

The graduate qualities are the qualities and skills that all University of Sydney graduates must demonstrate on successful completion of an award course. As a future Sydney graduate, the set of qualities have been designed to equip you for the contemporary world.

GQ1	Depth of disciplinary expertise Deep disciplinary expertise is the ability to integrate and rigorously apply knowledge, understanding and skills of a recognised discipline defined by scholarly activity, as well as familiarity with evolving practice of the discipline.
GQ2	Critical thinking and problem solving Critical thinking and problem solving are the questioning of ideas, evidence and assumptions in order to propose and evaluate hypotheses or alternative arguments before formulating a conclusion or a solution to an identified problem.
GQ3	Oral and written communication Effective communication, in both oral and written form, is the clear exchange of meaning in a manner that is appropriate to audience and context.
GQ4	Information and digital literacy Information and digital literacy is the ability to locate, interpret, evaluate, manage, adapt, integrate, create and convey information using appropriate resources, tools and strategies.
GQ5	Inventiveness Generating novel ideas and solutions.
GQ6	Cultural competence Cultural Competence is the ability to actively, ethically, respectfully, and successfully engage across and between cultures. In the Australian context, this includes and celebrates Aboriginal and Torres Strait Islander cultures, knowledge systems, and a mature understanding of contemporary issues.
GQ7	Interdisciplinary effectiveness Interdisciplinary effectiveness is the integration and synthesis of multiple viewpoints and practices, working effectively across disciplinary boundaries.
GQ8	Integrated professional, ethical, and personal identity An integrated professional, ethical and personal identity is understanding the interaction between one’s personal and professional selves in an ethical context.
GQ9	Influence Engaging others in a process, idea or vision.

Outcome map

Learning outcomes	Graduate qualities
Learning outcomes

Responding to student feedback

This section outlines changes made to this unit following staff and student reviews.

Adjustments to assessment regime has been made.

Disclaimer

The University reserves the right to amend units of study or no longer offer certain units, including where there are low enrolment numbers.

To help you understand common terms that we use at the University, we offer an online glossary.

Current students

Overview

Overview

Unit details and rules

Teaching staff

Assessment

Assessment

Assessment summary

Assessment criteria

Late submission

Academic integrity

Learning support

Learning support

Simple extensions

Special consideration

Using AI responsibly

Weekly schedule

Weekly schedule

Attendance and class requirements

Study commitment

Required readings

Learning outcomes

Learning outcomes

Graduate qualities

Outcome map

Responding to student feedback

Responding to student feedback

Disclaimer

On this page

Useful links

Media

Student links

About us

Connect

Current students

LAWS6338: The Nature of the Common Law

Intensive June, 2021 [Block mode] - Remote

Overview

Overview

Unit details and rules

Teaching staff

Assessment

Assessment

Assessment summary

Assessment criteria

Late submission

Academic integrity

Learning support

Learning support

Simple extensions

Special consideration

Using AI responsibly

Weekly schedule

Weekly schedule

Attendance and class requirements

Study commitment

Required readings

Learning outcomes

Learning outcomes

Graduate qualities

Outcome map

Responding to student feedback

Responding to student feedback

Disclaimer

On this page

Useful links

Media

Student links

About us

Connect