Legal History Seminar One – Key Concepts

Fifty question-and-answer flashcards covering the origins of law, the rule of law, custom, legal history, and Aboriginal legal issues discussed in Legal History Seminar One.

Where do modern Anglo-American lawyers typically say law comes from?

From courts where judges decide cases and from parliaments where legislators pass statutes.

Why is that modern view of law’s origin potentially misleading?

Because it overlooks the historical development of law and its social, customary roots.

Which recent Australian reform illustrates rapid legal change driven by social pressure?

The 2017 legalisation of same-sex marriage following the 2013 High Court decision striking down the ACT law.

What does the saying "what is legal becomes what is right" imply?

Law can teach society and shape moral attitudes so that people eventually regard legal rules as morally correct.

What inconsistency prompted the Commonwealth to pass the Marriage Act 1961?

Different states treated overseas marriages differently, leading to confusion and injustice.

Which 2004 amendment defined marriage as between "a man and a woman" in Australia?

The Howard Government’s amendment to the Marriage Act 1961 (Cth).

What famous Holmes quote criticises blind adherence to historical rules?

"It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."

Name three medieval dispute-resolution methods besides jury trial.

Trial by battle, trial by wager of law, and trial by ordeal (others include manorial or ecclesiastical courts).

How did early royal justices discover local law in medieval England?

They called locals as experts on customs and chose the most convincing explanation.

Why were the royal justices’ decisions called "common law"?

Because their rulings crystallised local customs into a body of law common to all England.

In what way can law be seen as enabling rather than merely restricting freedom?

It provides predictable frameworks—like railways or airstrips—that let people act safely and efficiently.

What everyday traffic behaviour shows law’s enabling certainty?

People stop at red lights even when no traffic is coming, trusting others will do likewise.

Which 1215 document showed people relying on written law instead of war?

Magna Carta.

Who coined the modern phrase "rule of law" around 1900?

Albert Venn Dicey.

What contrast lies at the heart of the "rule of law" concept?

Rule of law versus rule of man (arbitrary power).

Under Dicey’s first principle, who can be punished?

Only someone convicted in the ordinary courts of the land.

Dicey’s second principle asserts what about status before the law?

No one is above the law.

Where did Dicey say British rights come from?

From accumulated judicial decisions rather than a written constitution.

What major criticism of Dicey arises in Australia’s Westminster system?

Parliament can override rights because they lack constitutional protection, undermining real equality.

Which 1951 High Court case protected freedoms by striking down anti-communist laws?

Australian Communist Party v Commonwealth (Communist Party Case).

List Sir Ninian Stephen’s four cardinal principles of the rule of law.

Government under law; independent judiciary; ready access to courts; law certain and general.

Give any three of Lord Bingham’s eight sub-rules of the rule of law.

Examples: (1) law must be accessible, clear and predictable; (2) equal application; (3) adequate protection of human rights; (others include timely dispute resolution, good-faith administration, fair procedures, etc.).

Which modern scholar says the rule of law chiefly rejects arbitrary rule?

Professor Martin Krygier.

Name two personal virtues critical to rule-of-law decision making highlighted in the lecture.

Independence and impartiality (others include transparency, courtesy, etc.).

What two doctrines were identified as sources of injustice to Aboriginal Australians?

Terra Nullius and the White Australia Policy.

What does the Latin term "terra nullius" literally mean?

"Land belonging to no one."

How did Terra Nullius justify colonial land seizure?

By claiming Indigenous Australians had no recognised system of land ownership, so the Crown could appropriate the land.

Which 1992 High Court decision overturned Terra Nullius?

Mabo v Queensland (No.2).

Which 1975 Commonwealth Act implemented the UN race discrimination convention?

The Racial Discrimination Act 1975 (Cth).

In what year did Australians vote to include Aboriginal people in the census and allow federal laws for them?

1967 (the referendum on constitutional amendment).

Which policy restricting non-white immigration influenced Australia’s constitutional framers?

The White Australia Policy.

How many U.S.-style rights were transplanted into the Australian Constitution?

Three—just terms compensation, jury trial in federal cases, and limited free exercise of religion.

Why did Australian framers avoid adopting U.S. Fourteenth Amendment equality guarantees?

They did not want constitutional equality for non-white peoples, reflecting White Australia attitudes.

What did Justice Isaacs say about Aboriginal voting capacity in 1902 debates?

That Aborigines lacked the "intelligence, interest or capacity" to vote.

Which New Zealand body administers Maori land reparations?

The Waitangi Tribunal.

What 1840 treaty recognised Maori land rights?

The Treaty of Waitangi.

Why is constitutional recognition of Indigenous Australians controversial today?

Many fear it will lead to reparations and compensation claims.

According to the lecture, what economic effect have New Zealand’s reparations had?

They have slowed New Zealand’s economy relative to Australia’s.

Why is procedural fairness essential in rule-of-law systems?

Decisions made without a fair hearing can be invalidated in judicial and administrative contexts.

What constitutional assumption did Dixon J say underpins Australia’s legal system?

That Australia subscribes to the rule of law.

How are executive decision makers less constrained than judges regarding transparency?

They are not always legally required to give reasons, provide hearings, or disclose all evidence.

What does Lord Moulton’s phrase "obedience to the unenforceable" describe?

Voluntary observance of moral duties not mandated by law, vital to the rule of law.

Which transportation analogy illustrates law’s enabling character in the lecture?

The 1917 transcontinental railway and subsequent airports connecting east and west Australia.

How did medieval royal justices deliver justice outside London?

They travelled "on circuit" as justices in eyre to provincial areas.

What is the main argument of Santayana’s maxim about history and law?

Those who do not learn from history are doomed to repeat it, urging study of legal history.

What comparative point did the High Court make in Mabo about other colonies?

Other British colonies had recognised native title; Australia should not be an exception.

Which "ologies" were mentioned as social-science approaches to studying law?

Sociology, anthropology, and ethnology of law.

Give an example from the lecture of law influencing social attitudes over time.

Public acceptance of same-sex marriage increased after its legalisation.

Which Prime Minister’s government amended the Marriage Act in 2004 to bar same-sex marriage?

Prime Minister John Howard.

What ultimate purpose of the rule of law was emphasised in the lecture?

To create a predictable, non-arbitrary system that provides peace, security, and human-rights protection.