Lawyers' Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police
(2020) 49 Australian Bar Review 199
24 Pages Posted: 4 Dec 2020
Date Written: May 19, 2020
Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises on the present, and the present upon the future. This article considers – including by reference to images of original documents – the multiplicity of ways in which lawyers use history, including the need for a contextual understanding of judgments, the deployment of expert evidence by legal historians, and the haphazard and imperfect reporting of judgments. It considers three quite different sources of Entick v Carrington, including one manuscript only recently published, and how that decision has been used to address modern disputes.
Keywords: legal history, Maitland, Enid Campbell, law in context, equity, law reporting
JEL Classification: K10, K41
Suggested Citation: Suggested Citation