Swain on The Use and Misuse of Legal History in the High Court of Australia

Warren Swain, University of Auckland Faculty of Law, is publishing The Use and Misuse of Legal History in the High Court of Australia in The Impact of Law's History What's Past is Prologue (Sarah McKibben, Jeremy Patrick, and Marcus K Harmes, eds., Palgrave Macmillan, 2022). Here is the abstract.

Legal history is sometimes seen as little more than the study of ‘old, unhappy, far-off things’. This is reflected by the fact that the subject is no longer central to the undergraduate law curriculum. Yet this fact doesn’t tell quite the whole story. During the 1980s the High Court began to shift Australian private law in new directions. That the law has changed significantly in the last thirty years is not disputed. The precise manner in which the High Court have gone about changing the face of Australian private law, particularly through the use of historical sources is less well documented. At the heart of the process is a paradox. In reforming the common law arguments derived from history, sometimes quite ancient history, have played a vital role. This paper will explore the way in which the High Court have used historical arguments and seek to draw some lessons about what this tells us about the High Court in the post-colonial period. The doctrine of contractual penalties is used as an example.

Download the essay from SSRN at the link.