Issue 16 No.1

Articles

Professor David Clark (Flinders University)

Magna Carta’s Child: The Rise of a Rule of Law State in New Zealand 1840-2015

Magna Carta is at once a medieval document and the progenitor of a constitutional tradition. The paper shows that the Great Charter has survived because it was adapted by later generations, and that these generations, in this case in New Zealand, were able to adjust Magna Carta to modern circumstances and to use it to create constitutional arrangements not in contemplation in 1215. Using the digital collection of New Zealand Statutes since 1840, and the New Zealand National Library’s digital newspaper collection, the legal and political uses of Magna Carta in creating modern constitutional doctrines and institutions with distinctive New Zealand characteristics is both set out and accounted for. The transformation of the Charter from a medieval document into a modern rule of law state that embodies values suggested rather than expressly stated in 1215 is also a tribute to the flexibility of the common law tradition that survives because it is able to change.

Associate Professor Chris Dent (Murdoch University)

The Rise in References to ‘Knowledge’ in 19th Century English Law

These days, courts refer to the knowledge of parties in disputes regularly. This was not always the case. It was only in the 19th century that judgments increasingly became to be based, explicitly, on what was known by the defendants (and to a lesser extent, other parties). This article uses examples from the English law of the time to show how knowledge began to be referred to in the areas of (amongst others) intellectual property, negligence and the criminal law – areas in which the law was not previously couched in terms of knowledge. The observed changes will then be discussed from two perspectives – first, in terms of the relationships between the law, as a discipline, and knowledge; and second, in terms of the shifts in the discipline’s perception of the individuals that came before it.

Dr Caroline Dick (University of Wollongong)

Anti-Shouting Law: A War Time Sumptuary Impulse Tied up with Slouch Hats and Khaki

Many people think of sumptuary law as an archaic form of government intervention that targeted the personal lives of medieval people, and has no significance in modern times. This article challenges these views, and suggests that sumptuary intervention was particularly ‘alive’ in Australia during the First World War. This wartime period was one of national crisis and was marked by numerous social and economic anxieties, particularly about national security and the morality of Australian citizens. This article suggests that these social and economic anxieties were similar to those social and economic anxieties that prompted the creation of the English sumptuary laws of the early modern period.

In the early modern period, sumptuary laws were not limited just to the regulation of personal appearance through rules relating to dress. They also targeted the private consumption of food and alcohol, social ceremonies, entertainment and economic wealth. Whilst these laws often aimed to limit or regulate the private expenditure of citizens, they were also concerned with the social manifestations of consumption and always involved some combination of social, economic and moral regulation. Drawing on contemporary discourse, the article argues that the Anti-Shouting law that was proposed in Australia during the latter years of World War 1 was clearly a sumptuary measure and analogous to those interventionist laws of the early modern period. This sumptuary measure not only focused on the wartime control of alcohol consumption practices but was also entwined with an impulse for moral regulation that operated in response to wider government concern for Australia’s public well-being and economic future.

Professor Warren Swain (University of Auckland)

Low Value Civil Claims in Early 19th Century Australia

Many modern civil claims are for relatively small sums of money. The same was true in early nineteenth century Australia. The position there was complicated by the way in which the court system was evolving at the time. With the demise of the Court of Civil Jurisdiction in 1814 the jurisdiction over small claims began diversify. The Court of Requests which opened for business in New South Wales in 1824 was modelled on an English equivalent. It proved to be extremely popular. For a brief period before it was abolished in 1847, the court sat in what is now Brisbane. A record of the court survives in the Queensland State Archives and provides a useful insight into the nature of small claims litigation at the time. As a result, it is possible to analyse the number, type and amount of claims. Following the abolition of the Court of Requests small claims came to be dealt with by Magistrates. After separation a system of District Courts was created.