LAWHONS 716 - Legal History

Credit points: 20 points
Offered: Full-year
Contact hours: Lectures - 2 hours per week
Course Coordinator: Professor David Williams

Course outline

This seminar is concerned to trace the roots of the New Zealand legal system in terms of sources of law and institutional structures found in English legal history. There is a public law, rather than a private law, focus to the major topics of legal history discussed in this seminar. This reflects my own interests. However, your Seminar Papers may be written on any branch or aspect of law in history that appeals to you.

The Semester One materials are intended to provide a brief glimpse of aspects of English and New Zealand legal history. The main focus of the topics to be discussed in class are the English sources of the common law legal system in New Zealand, the brutality of the criminal justice system in the recent past, and the importance of rule of law principles in the evolution of English and New Zealand constitutional law. The course does not look at history for history’s sake. According to Samuel Clemens (aka Mark Twain) ‘history does not repeat itself but it does rhyme a lot’. The legal history we look at may assist us to understand more clearly the issues that arise in contemporary law and society. If current events reported as the year goes by seem pertinent to the historical issues we are looking at, then I am happy to encourage class discussion of contemporary controversies arising from the historical materials being scrutinised. 

In Week 1 we will meet each other, go through this outline, look at an article by Gillian Gillies (a student in the 2010 Honours seminar), and sort the class into groups that will carry on the discussions of each topic of the course and respond to some questions that I will pose each week. Week 2 is on law, history and myth. I will invite a discussion of the competing perspectives of historians and lawyers on the relevance of history and historical context to contemporary legal decision-making. I will suggest that myth is not necessarily just an ‘untruth’, and indeed that much of what we take for granted now as law was derived from myths. 

In Week 3 we will note the legal pluralism evident in English legal history. The wide diversity in the sources of English common law include: Anglo-Saxon folk-right procedures and the first written ‘code’ of King Ethelbert of Kent (c. 602); baronial and manorial courts; the creation of a system of law in royal courts ‘common’ to the realm during the 11th & 12th centuries; the discrete role of canon law, much of it derived from Roman law, and the role of ecclesiastical courts. 

In Week 4 we will discuss some features of the pre-modern and early modern criminal justice system. The justice system included trials by ordeal and imposed a wide range of severe penalties such as branding, hanging and gibbeting, hanging, drawing and quartering and transportation before imprisonment became the major means of punishment in the nineteenth century. Of special interest were the periodic waves of moral panics aimed at witchcraft and the use of torture in English and Scottish law. 

For Week 5, there will be a focus on the development of constitutional conventions, civil liberties and ‘rule of law’, including due process statutes and the Magna Carta, especially in the context of 17th century England when constitutional crises, civil war and regicide (or tyrannicide - depending on your perspective) finally established the basis for the constitutional values applied in New Zealand today. 2015 is the 800th anniversary of the first promulgation of the Magna Carta (or Magna Charta). 

In Week 6 we will look at a variety of understandings about the rule of law in 18th century England. Consider the paradox that the enforcement of draconian laws in that century, biased as they were to the interests of the ruling elite in a pre-democratic age, do not deter an eminent social historian like E.P. Thompson from claiming that the rule of law is an ‘unqualified good’ and ‘a cultural achievement of universal significance’. That century also saw the incorporation of the law merchant into English law by Lord Mansfield CJ - a great reforming judge (but with feet of clay?). 

In Week 7 we will reach the 19th century when, for the first time in English legal history, parliamentary enactments became the major means of law reform and the primary source of law. The Acts we will consider, from both the UK and New Zealand, focus on women’s rights to vote, married women’s entitlement to own separate property, the opportunity for widows to upset the wills of their deceased husbands, and the opportunity for women to resort to litigation to protect their ‘virtue’. 

In Week 8 we consider the ‘reception’ of English law in New Zealand. Why was the English Laws Act 1858 passed and how did an Acting Chief Justice conclude that the Wills Act 1837 did not apply in New Zealand. We also look at a particular example of legislation passed to protect the interests of the timber industry without concern for conservation or over-exploitation issues that have become so important in more recent years. 

Week 9 materials will look at the failure of rule of law principles to circumscribe the power of colonial states during 19th century periods of war or civil emergencies. We will compare and contrast the use of martial law and detentions without trial in Jamaica (1865) as compared with East Coast New Zealand in the same year. 

Week 10 considers two cases relevant to what is now called the common law doctrine of aboriginal rights. We will look at Mark Hickford’s analysis of R v Symonds (1847) and two chapters of my book A Simple Nullity? (AUP, 2011) - on the actual facts of Parata v Bishop of Wellington (1877); and my revisionist view of the case’s significance in New Zealand law and history.

Week 11 readings cover issues on law and custom in the UK, North American and Australasia, discourse on ‘terra nullius’, and an article on Māori sentenced to transportation to Van Diemen’s Land (Tasmania) in 1846. 

Week 12 concludes the Semester One classes with a discussion on the extent to which principles of legality ‘fall silent’ in wartime and emergencies. The focus is on the early years of the 20th century in New Zealand before and during the Great War (now World War I); and the Louisiana aftermath of the United States war with Great Britain in 1814.

Assessment

  1. A 10,000-word Honours Seminar Paper (80%) (there is no final examination in any LLB(Hons) Seminar);
  2. An oral presentation of your research paper to the class (10%); and
  3. Class contribution (10%).