Legal Studies

In 2023, a broken engagement might be followed by tears, the division of possessions, and a reliance on family and friends. It might even involve a few trips to the therapist. But up until the mid-to-late twentieth century, Australian men and women’s heartbreaks could also see them take a trip to court to charge their partner with breach of promise of marriage.

Australian advocates of a harsh line against asylum seekers arriving by boat often base their arguments on a concern for the protection of human life. Unless we deter boat people, so the reasoning goes, ever greater numbers will set out on the dangerous voyage from Indonesia, and more and more lives will be lost at sea. This may sound like a novel position, but, as Andy Lamey makes clear in Frontier Justice: The Global Refugee Crisis and What to Do about It, the argument is well worn. In the early 1990s, Presidents Bush Sr and Clinton used similar justifications to defend a policy of intercepting boats from Haiti and returning them directly to Port au Prince, without making any assessment as to whether those on board might have claims to protection from Haiti’s dictatorial régime.

The prodigious effort that went into the compilation of Dowling’s Select Cases was entirely consistent with his own approach to judicial office, including producing the copious writings that found their way into the book. As Dr Bennett put it in his biography of James Dowling (2001), industry and perseverance were the hallmarks of Dowling’s accomplishments. To produce the chronicle now published, the editors and their helpers followed Dowling’s notes through his nine volumes of cases, cross-referencing many to his 268 judicial notebooks. The cases were recorded by Dowling by hand and required considerable typing. They are arranged chronologically and according to subject matter. The book will not be a threat to Harry Potter but will endure as of considerable interest to lawyers and historians.

The centenary of the first sitting of the High Court of Australia was celebrated in the same courtroom in Melbourne in October 2003. There followed a conference in Canberra reviewing the decisions of the Court over the course of a century. The papers of that conference will shortly be published for a legal audience.

In advance of that book, CUP has published sixteen essays to give a more general audience an idea of the role the High Court has performed in the leading issues in which it has been involved. The writers are assigned important decisions or major themes. They explain the background. They describe proceedings in the High Court and (whilst it lasted) the Privy Council. They put their subjects in context and evaluate their significance in terms accessible to an informed lay reader. This book contains plenty of new insights that combine to make it a commemorative volume, but without many of the defects normal in that genre.

It is comforting to think that the foundations of the legal system are sound. Perhaps this explains why there are so many common myths about the law, such as the notion that every legal problem has a ready solution, or that the law is essentially objective and value-neutral.

As students, litigants, witnesses and others who have suddenly become more familiar with the system of justice can attest, a closer look at the structure is usually disconcerting. This book, written by a professor of law, will be a revelation to those yet to become familiar with the cracks in the structure. It examines the fundamental concepts and assumptions that underlie law, taking nothing for granted. In the process, it explodes most of the myths.