Mark Leeming, ‘Theories and Principles Underlying the Development of the Common Law: The Statutory Elephant in the Room’

Introduction:
Law cannot be treated purely as an intellectual system, a game to be played by scholars whose aim is to produce a perfectly harmonious structure of rules. It is something which operates at a practical level in society, and has to be understood as such. The truth stated by Professor Ibbetson is recognised in the theme of this issue of the University of New South Wales Law Journal: The Practical Significance of the Theories Guiding the Development of the Common Law. This article seeks to expose and explain the consequences of two unstated major premises of that theme: what does it mean, in this age of statutes, to speak of the ‘common law’ and what does it mean to speak of its ‘development’? This article contends that it is unhelpful in this context to speak of ‘common law’ and its ‘development’. It is unhelpful because of the central role of statutes. Most of what is actually occurring in the legal system is the construction and application of statutes. A great deal of what is simplistically described as ‘common law’ is the historical product of, or response to, statutes. And much of the contemporaneous ‘development’ in the day-to-day workings of courts in fact involves a process of harmonisation informed by statutory norms. Even when a court decides not to alter the law, the role of statutes can be influential. …” (more)

Leeming, Mark, “Theories and Principles Underlying the Development of the Common Law: The Statutory Elephant in the Room” [2013] UNSWLawJl 40; (2013) 36(3) University of New South Wales Law Journal 1002.

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