Does Aboriginal Law Now Run in Australia?

1979 ◽  
Vol 10 (2) ◽  
pp. 161-187 ◽  
Author(s):  
Barbara Hocking
Keyword(s):  
United States ◽  
Property Rights ◽  
Common Law ◽  
Land Rights ◽  
Native Title ◽  
Legal Problems ◽  
Critical Scrutiny ◽  
The Common ◽  
Aboriginal Law

The author examines development through the cases of recognition by the common law of the doctrine that customary traditional native law and native title is recognized in colonies settled by the British, She concludes that at common law when the British Crown acquires sovereignty over a territory, pre-existing property rights are preserved and that a clear expression of intention to the contrary is necessary to extinguish them. She then notes a number of relevant United States and Canadian cases on the issue of the land rights of their aboriginal inhabitants. The decision in Millirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia is subjected to critical scrutiny and it is concluded that the decision does not concur with the established common law. Finally, some of the legal problems involved in the recognition, by statute, of aboriginal land rights are discussed.

Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case

1974 ◽  
Vol 6 (1) ◽  
pp. 150-173
Author(s):  
L. J. Priestley
Keyword(s):  
18Th Century ◽  
Common Law ◽  
Land Rights ◽  
Limited Extent ◽  
Native Title ◽  
The Common ◽  
The Law

Mr Priestley disagrees with the view expressed by Dr Hookey in his article “The Gove Land Rights Case”, that to a limited extent the common law recognized native communal title to land. Instead he suggests that the decision in Johnson v. M'Intosh which Dr Hookey regards as an exposition of this common law position, was an exposition of the law of Virginia as it had developed to the end of the 18th century. As such it may give guidance in the development of Australian law but similar conclusions should be drawn only in circumstances of sufficiently similar commencement and development. Mr Priestley concludes that in Milirrpum v. Nabalco Pty Ltd there was not evidence of such similarity before the court.

Do the Walls Have Ears? Indigenous Title and Courts in Australia

2000 ◽  
Vol 28 (2) ◽  
pp. 185-212 ◽  
Author(s):  
Peter R. A. Gray
Keyword(s):  
Land Tenure ◽  
Legal System ◽  
Common Law ◽  
Native Title ◽  
Life And Death ◽  
Indigenous Law ◽  
The Common ◽  
Aboriginal Law ◽  
High Court Of Australia

Australia has always been a place of legal pluralism. Before the British colonists brought with them the common law and the statute law of England, there were indigenous systems of law. Indeed, there were very many of them. They did not cease to exist just because English law was imported. Sadly, for over 200 years, their existence was not officially recognised by the Anglo-Australian legal system. In 1992, in Mabo v State of Queensland [No.2], the High Court of Australia did more than “invent” native title. It made this nation officially a legally pluralist one. The common law now recognises, and gives effect to, indigenous law with respect to land tenure and, possibly, with respect to other aspects of life and death as well. Native title is what indigenous law says it is, no more and no less, except to the extent that non-indigenous law operates to “extinguish” or “impair” native title. The first inquiry in any application for a determination of native title must be as to the continuing existence of an indigenous legal system and the manner in which that legal system deals with entitlements in relation to the relevant land. If such a system survives and gives entitlement to people, it must then be asked whether non-Aboriginal law has “extinguished” or “impaired” those entitlements. In truth, this inquiry is as to whether the non-indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities, incompatible with the continuing existence of indigenous entitlements. The entitlements continue to exist in indigenous law, despite any “extinguishment” or “impairment.”

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

Law and Lawyers in the United States: The Common Law under Stress

1967 ◽  
Vol 80 (4) ◽  
pp. 916
Author(s):  
Lord Denning ◽  
Erwin N. Griswold
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
The Common

Slavery

2008 ◽  
Vol 9 (03) ◽  
pp. 491-506 ◽  
Author(s):  
Robin L. Einhorn
Keyword(s):  
United States ◽  
Property Rights ◽  
The United States ◽  
Individual Property ◽  
Public Power ◽  
History Of ◽  
The Common ◽  
Common Man ◽  
The Relationship ◽  
Individual Property Rights

The history of slavery cannot be separated from the history of business in the United States, especially in the context of the relationship between public power and individual property rights. This essay suggests that the American devotion to “sacred” property rights stemsmore from the vulnerability of slaveholding elites than to a political heritage of protection for the “common man.”

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

The Law of Personal Status: Wives, Paupers, and Slaves

2019 ◽  
pp. 173-212
Author(s):  
Lawrence M. Friedman
Keyword(s):  
United States ◽  
Civil Rights ◽  
Common Law ◽  
White Men ◽  
The United States ◽  
Political Rights ◽  
Poor Laws ◽  
Marriage And Divorce ◽  
The Common ◽  
The Law

This chapter discusses the law on marriage and divorce, family property, adoption, poor laws and social welfare, and slavery and African Americans in the United States. In the colonial period, the United States had no courts to handle matters of marriage and divorce. Marriage was a contract—an agreement between a man and a woman. Under the rules of the common law, the country belonged to the whites; and more specifically, it belonged to white men. Women had civil rights but no political rights. There were no formal provisions for adoption. A Massachusetts law, passed in 1851, was one of the earliest, and most significant, general adoption law. The so-called poor laws were the basic welfare laws.

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