This article examines the historical development and social and intellectual functioning of Islamic law in the twelfth through fifteenth centuries. In particular, it considers the progressive stabilization and institutionalization of the four classical Sunni madhhabs (schools of law) and the corresponding developments in Imami Shi‘ism; developments in legal theory (usul al-fiqh); and the practical administration of the law. It also discusses the various forms of ijtihad and taqlid that could generate new legal rulings, along with the textual forms and real-world interactions within which legal judgments were sought and expressed. Finally, it looks at the fatwa, which consists of a legal opinion issued in response to an inquiry (istifta’).
This article discusses academic work in relation to appellate courts. It concentrates on characterizing and explaining judicial decision-making and winning on an appeal. Furthermore, it raises questions about the nature and coverage of empirical legal research on appellate courts, and discusses general methodological questions. It also looks at rival approaches to describing what judges do in making decisions, and what motivational assumptions are most commonly made and finally indicates the broad outlines of how the field should develop methodologically in the future. Empirical legal research suffers from the main weakness of the entire body of empirical research applied to appellate courts. This article concludes by mentioning that a shift of focus is needed to other aspects of law. To be forced into a choice, a judge must feel that what he regards as morally correct would be inconsistent with existing law.
This chapter considers both the foundations for, and the content of, the High Court's authority in Australia. It focuses principally on the current authority of the High Court, but with reference to some aspects of its history. The chapter first explains the Court's constitutional status as Australia's apex court, performing the role of both constitutional court and ultimate appellate court for both federal and State matters. It next outlines the institutional features of the Court that underpin its authority, in particular its composition and independence. The chapter then examines the Court's authority to enforce constitutional limits through judicial review of legislative action. Lastly, the chapter considers the Court's authority to review executive action and the constitutional foundation for that role.
John V. Orth
This chapter focuses on Sir William Blackstone (1723–1780), the author of the most important book in the history of the common law. The four-volume Commentaries on the Laws of England (1765–1769) and the series of lectures Blackstone delivered at Oxford from 1753, changed the way lawyers thought about the law. Blackstone’s Commentaries were read by more people, non-lawyers as well as lawyers, than any other English law book. Their influence is difficult to overstate, and extends into the twenty-first century. Almost as momentous was Blackstone’s influence on legal education. While gradual, the transfer of legal education from the law office and the courts to the university, which Blackstone pioneered, had an enormous impact on legal development, as law professors contributed to the formation of generations of lawyers and themselves came to play a significant role in legal development.
Tahirih V. Lee
This chapter begins with a brief overview of the foundations of the field of Chinese legal history. It then delves into questions of methodology and approach. Three such questions face the field now and in the near future. First, historians, law scholars, and anthropologists with their different training and bases of knowledge, ask different questions about law. Second, comparative law inextricably intertwines with Chinese legal history, and its use and abuse needs to be examined and its lessons be better learned. Third, given the sophistication for centuries of Chinese rulers’ efforts to propagate official lines about the law, it has been exceedingly difficult for scholars to pierce through it to see what was actually happening on the ground. Improvement in this will help us understand how, and the extent to which, substantive law reached the population during different periods of China’s history.
This chapter examines the uneasy relationship between the Australian Constitution and membership of the Australian polity. Unlike some constitutions, the Australian Constitution contains no mention of ‘citizenship’. Instead, formal membership of the Australian community is determined by reference to the constitutional categories of ‘subjects of the Queen’ and ‘people of the Commonwealth’ and through the legislative definition of citizenship under federal law. These peculiar features of the Australian context reflect what is generally assumed to be the modest role of the Constitution in determining national identity and the fact that Australia was not an independent nation at the time of the Constitution's drafting. Developments in legislation, constitutional jurisprudence, and mooted constitutional amendments all point towards a greater role for the Constitution in determining Australian ‘citizenship’ in the future.
This chapter considers the meaning of the term ‘common law’ and its application in the context of Australian federalism. It discusses some views on common law vis-à-vis the Constitution, as well as the history of the development of common law in Australia. The common law of Australia includes the choice of law rules. The common law choice of law rules select which of the competing State or Territory laws is the lex causae. They apply either directly in the court of the forum, or where federal jurisdiction is exercised, as ‘picked up’ by operation of section 80 of the Judiciary Act 1903 (Cth). A further significant aspect of the development of the common law of Australia is its illustration of the temporal character of the common law.
Jeffrey Goldsworthy and Lisa Burton Crawford
This chapter explains how constitutionalism developed and how it currently operates in Australia. It first explains the historical developments whereby Australia combined elements of the British and American models of constitutionalism, which employ legal and political constitutionalism in very different ways. The chapter then describes three main stages in the development of Australian constitutionalism. The first was the establishment in the nineteenth century of colonial Constitutions, which employed a predominantly political form of constitutionalism and, upon federation in 1900, became the Constitutions of the six Australian States. The second was the establishment of the Commonwealth Constitution in 1900, which necessarily blended elements of political and legal constitutionalism. The third consists of more recent innovations by the High Court that have expanded the role of legal constitutionalism. Each development has built on its predecessor, resulting in a distinctive combination of political and legal constitutionalism.
The chapter introduces the Court of Justice of the EU by looking at five key elements defining the institution in a diachronic perspective: the structure of the Union courts located in Luxembourg, looked at vertically (the ECJ, the GC, and the CST) as well as horizontally (division of work within the ECJ and in particular the role of the grand chamber); the type of judicial business the Court of Justice carries out today, in both its quantitative as well as qualitative dimensions; its composition, including the recent changes made by the Treaty of Lisbon to the way in which judges and Advocates General are selected and appointed; the often discussed reasoning style and structure of the judgments; and, finally, the even more frequently discussed and recurring question of the legitimacy of the Court of Justice.
Analysis of EU law making is made difficult by the presence of multiple legislative procedures. Matters are further complicated by neither national nor postnational models of democracy providing convincing answers as to when EU law making is democratic. This grants EU law making a democratic ambiguity. It is committed to democracy and has democratic features, but not sufficiently to convince the Union’s citizens of its democratic authority. The scepticism generated by this is itself valuable. Democratic ambiguity generates further positive features within all EU legislative procedures: the possibility of triple review by different institutional actors—the European Parliament, national governments, and national parliaments. This is unparalleled but compromised by other features of EU law making: first, the lack of compass to indicate when it is democratic for the Union to legislate, and second, democratic fluidity, the presence of informal processes that serve to bypass and undermine this triple review.
This chapter examines the design of Australia's federal system. Two historical propositions affirmed in the preamble to the Constitution are central to this conception. These are, firstly, that the Constitution was predicated on an agreement between the people of the Australian colonies and, secondly, that the intention was to unite the colonies into an indissoluble federal commonwealth. The Australian Constitution does not rest upon the consent of an already consolidated people; nor does it create a unitary state. It is the result of an agreement among several mutually independent political communities and it establishes a federal system of government that preserves their continuing existence as self-governing polities.
This chapter explores how guarantees of due process in Australia are implemented. It first examines the unsuccessful attempt in the 1890s to incorporate an express due process clause in the Australian Constitution. The chapter next looks at the High Court's historical recognition that Chapter III of the Constitution incorporates judicial review of the validity of legislative and executive action and a separation of federal judicial power. It then examines how, in recent decades, the Court has distilled a group of due process guarantees binding on the Commonwealth and the states from this institutional framework. Finally, the chapter considers key issues in future development of Australian due process law.
Although the development of EU law is the result of the interaction of many political and institutional actors, no other relationship is perhaps as important as that between the ECJ and the national courts. Their interaction is dialectical, full of circumspection and deference, albeit occasionally tense, and based on an incomplete and somewhat unstable political bargain. This contribution seeks to explore some recent trends in this intra-judicial dialogue. It looks at the attributes of the interaction between the ECJ and the national courts, the centralized constitutional model favoured by the ECJ case law, and the vexed issue of Kompetenz-Kompetenz. Finally, it explores some recent judgments which suggest uneasiness and even open defiance on the part of some the national supreme jurisdictions.
John Baldwin and Gwynn Davis
This article considers the contribution to legal scholarship which has been and is being made by research strategies which fall under the broad heading of ‘empirical’. Empirical research in law involves the study, through direct methods rather than secondary sources, of the institutions, rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have. It is not a synonym for ‘statistical’ or ‘factual’, and its intellectual depth and significance are not determined by the empirical label but can only be judged by reference to the same standards and the same yardsticks as would be applied to any other academic endeavour.
This chapter considers the extent to which the Australian Constitution protects the right of individuals to equality and non-discrimination. It is concerned solely with the extent to which the Constitution forbids the passing of laws that discriminate against individuals or that subject individuals who are the same in relevant respects to different treatment. As the chapter shows, the Constitution neither expressly nor impliedly contains a guarantee of general legal equality for individuals. It does, however, prohibit one kind of discrimination against individuals, namely, discrimination on the ground of out-of-State residence. Furthermore, there are some respects in which the Constitution expressly contemplates inequality, including race-based inequality—a singular fact that has been taken to defeat the notion that the Constitution contains an implied guarantee of equality.
Equitable property, especially as illustrated in the trust, and equitable obligations, especially fiduciary obligations, are without precise civil law counterparts. This ought to have marked these areas out as prime candidates for innovative and inventive common law and comparative scholarship. Instead, even at the turn of the century, modern equity scholarship is still overwhelmingly devoted to doctrinal analysis that seeks simply to define and understand these equitable concepts. The legal concepts underpinning equitable property and equitable obligation are difficult, and proper definition is important to coherent development of the law's practices. This article discusses the following: ideas of equitable property, fiduciary law scholarship, and the common law-equity divide.
This chapter is about Australian constitutional evolution. It concerns the meaning, the processes, and the possibilities of constitutional change in Australia. ‘Constitutional evolution’ here means the transformation of the Australian constitutional system from its original form in 1901 into different forms until it reached the form we know today, by an aggregation of changes over time. These changes have mostly occurred in the constitutional space for which the written Constitution originally provided, with the result that, from 1901 until now, the Constitution has provided the framework for the Australian federation. The Constitution, as enacted by the British Parliament and as formally amended by popular referenda, has been critical to this evolutionary process; but the changes in the constitutional system, though consistent with the written text, have not been required by it.
This chapter traces the way in which freedom of expression is recognized in Australian constitutional law. The absence of a provision protecting freedom of expression is just one aspect of a widely noted feature in the Australian Constitution, yet the full picture is considerably more complicated. Freedom of expression has long had a foothold in Australian constitutional law. In 1992, the High Court of Australia developed a doctrine known as ‘the freedom of political communication’ which, to some extent, operates like a guarantee or right of freedom of expression. The chapter considers the extent to which the freedom of political communication resembles an explicit and generally expressed right of freedom.
This chapter identifies the origins, content, and operation of federal jurisdiction in Australia. In the United States the creation of federal jurisdiction was the necessary concomitant of the establishment of the judicial arm of federal government. The same could not be said of the conditions for Australian federalism. Federalism Australian-style did not require a federal system of courts. Further complicating the issue was the ‘autochthonous expedient’: the facility provided to Parliament for the use of State courts to exercise federal jurisdiction. Hence the chapter also seeks to suggest that the discordance between the concept and purpose of federal jurisdiction left the High Court with the challenging task of conceptualizing ‘judicial federalism’. In executing that task, High Court jurisprudence has presented differing conceptions of the place of State courts within the federal judicial system.