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

See all articles by Mark Leeming

Mark Leeming

The University of Sydney Law School

Date Written: May 19, 2020

Abstract

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

Leeming, Mark, Lawyers' Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police (May 19, 2020). (2020) 49 Australian Bar Review 199, Available at SSRN: https://ssrn.com/abstract=3734133 or http://dx.doi.org/10.2139/ssrn.3734133

Mark Leeming (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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