Legal History Seminar One: Custom, Tradition, Community and the Rule of Law

A set of 50 vocabulary flashcards covering core concepts, doctrines, historical events, statutes, and key thinkers highlighted in the Legal History Seminar One transcript.

Customary Law

Rules of behaviour developed within a kin or community group and enforced by social hierarchy before formal legal systems.

Common Law

Judge-made law of England formed from decisions of royal justices applying and developing local customs.

Magna Carta (1215)

Charter limiting royal power and affirming that disputes could be settled by lawful process rather than arbitrary rule.

Rule of Law

The principle that no one is above the law and that power must be exercised according to established, public, and predictable legal rules.

A.V. Dicey

English jurist who popularised the modern phrase ‘rule of law’ and articulated its three classic principles.

Dicey’s First Principle

No person may be punished except through the ordinary courts of the land acting under law.

Dicey’s Second Principle

Every person, including officials, is equally subject to ordinary law and ordinary courts.

Dicey’s Third Principle

Individual rights derive from common-law decisions rather than a written constitution.

Sir Ninian Stephen’s Four Principles

Government under law, independent judiciary, ready court access, and laws that are certain and general.

Lord Tom Bingham’s Eight Sub-Rules

A detailed modern checklist of accessibility, equality, human-rights protection, fairness, good faith, and compliance with international law.

Trial by Battle

Medieval dispute resolution where litigants (or champions) fought to let God reveal the righteous party.

Trial by Ordeal

Medieval method that subjected accused persons to painful tests, believing divine intervention would protect the innocent.

Trial by Wager of Law

Early procedure allowing an accused to swear innocence with supporting oath-helpers; gradually disfavoured.

Trial by Jury

Fact-finding process introduced after clergy withdrawal from secular courts, using local laypeople to decide guilt or liability.

Chancellor’s Equity Courts

Royal courts applying principles of fairness to remedy rigid common-law outcomes, precursor of modern equity.

King’s Justices in Eyre

Itinerant royal judges who travelled England, hearing cases and shaping the emerging common law.

Enabling Power of Law

The capacity of legal rules to facilitate safe, predictable cooperation—analogous to railways or airstrips opening travel.

Social Mores

Prevailing societal norms or moral sentiments that influence and are influenced by legal change.

Terra Nullius

Doctrine that Australia was ‘land belonging to no one’ at 1788; used to deny Aboriginal land rights until 1992.

White Australia Policy

Set of immigration and social attitudes favouring white settlers and marginalising non-white peoples, including Aboriginal Australians.

Mabo (No.2) (1992)

High Court case overturning terra nullius and recognising native title rights of the Meriam people.

Native Title

Legal recognition of Indigenous peoples’ pre-existing rights to land according to traditional laws and customs.

Racial Discrimination Act 1975 (Cth)

Federal statute giving domestic effect to the UN race discrimination convention and prohibiting racial discrimination.

1967 Referendum

Australian vote amending the Constitution to count Aboriginal people in the census and allow federal laws for them.

UN Convention on the Elimination of Racial Discrimination 1966

International treaty Australia ratified in 1975, committing to abolish race-based discrimination.

Treaty of Waitangi (1840)

Agreement recognising Māori ownership of lands, fisheries, and forests in exchange for British sovereignty in New Zealand.

Waitangi Tribunal

New Zealand body investigating breaches of the Treaty of Waitangi and recommending reparations.

Washminster System

Elaine Thompson’s term for Australia’s hybrid of Westminster parliamentary and Washington federal features.

Just Terms Compensation

Constitutional right (s 51(xxxi)) to adequate payment when the Commonwealth compulsorily acquires property.

Section 80 Jury Right

Constitutional guarantee of trial by jury for indictable Commonwealth offences.

Section 116 Religious Freedom

Provision limiting Commonwealth laws on religion and protecting free exercise of faith.

Marriage Act 1961 (Cth)

Federal statute that first unified marriage law across Australian states.

Marriage Amendment Act 2004

Howard-era law defining marriage as between ‘a man and a woman,’ later overturned in 2017 reforms.

Marriage Amendment (Definition and Religious Freedoms) Act 2017

Legislation legalising same-sex marriage across Australia.

High Court of Australia

Nation’s apex court, interpreter of the Constitution, and guardian of rule-of-law principles.

Procedural Fairness (Natural Justice)

Common-law requirement that decision makers be unbiased and give parties a fair hearing.

Due Process

US constitutional term paralleling procedural fairness, ensuring legal rights are respected in life, liberty, or property deprivations.

Independence of the Judiciary

Structural and personal safeguards ensuring judges decide cases free from external influence.

Impartiality

Virtue and legal requirement that decision makers have no bias and judge solely on evidence and law.

Transparency

Expectation that reasons, evidence, and procedures be open to scrutiny, reinforcing accountability under the rule of law.

Santayana’s Warning

Adage: ‘Those who cannot remember the past are condemned to repeat it,’ highlighting history’s role in wise lawmaking.

Oliver Wendell Holmes Jr.

US Supreme Court Justice who criticised adherence to outdated rules simply because of historical origin.

George Orwell’s Equality Critique

Literary warning (Animal Farm) that proclaimed equality can mask deeper inequalities: ‘Some animals are more equal than others.’

Decision-Maker Independence

Virtue requiring public decision makers to act free of improper pressure; cornerstone of rule-of-law legitimacy.

Decision-Maker Impartiality

Fair-minded neutrality expected of judges, administrators, and ideally politicians in exercising power.

1961 Cross-Australia Rail Link

Illustration of law’s enabling function: national infrastructure parallels legal frameworks allowing safe, efficient interaction.

Runnymede

Field near Windsor where Magna Carta was sealed, symbolising peaceful settlement of power disputes under law.

Rule of Men

System where rulers stand above the law and exercise arbitrary power, contrasted with the rule of law.

Aboriginal Citizenship (post-1967)

Formal recognition of Aboriginal and Torres Strait Islander peoples as Australian citizens with constitutional status.

Aboriginal Land Rights

Broad movement and legal framework seeking return or compensation for traditional Indigenous lands.

Custom

Long-standing social practice that can evolve into enforceable law when societies become more complex.

Tradition

Inherited patterns, beliefs, or institutions that inform contemporary legal and social frameworks.

Social Lobbying

Organised advocacy aiming to influence legislative or policy change by appealing to prevailing societal values.

statutory reform

changes in the law made by Parliament (rather than courts).

when was same sex marriage allowed by law

2017

how does the law change (vague)

in response to societal decision

when was the first federal marriage law

1961