Why is there 'but one common law in Australia'?

Abstract

The High Court has repeatedly confirmed that "There is but one common law in Australia which is declared by this court as the final court of appeal" so the fact that "Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law" does not mean that "there are as many bodies of common law as there are intermediate courts of appeal" rather it merely means "that not all of these courts will have correctly applied or declared the common law." Moreover, that common law exists even before the High Court's declaration of it. However, why is that so? What is the justification for there being only one common law of Australia? And what do we mean when we say that it exists even before the High Court declares it? In order to answer these questions, we analyse two competing theories of the common law, classical common law theory, and positivist common law theory. Ultimately, we suggest that the High Court's approach is firmly entrenched in, and can only be explained by, classical common law theory although a discussion of its general validity, as such, is outwith the scope of this paper.

Keywords: One common law in Australia, Comparative common law, Classical common law theory, Declaratory theory, Common law method, Positivism