The Making of Australian Property Law
By: A. R. Buck
In 1847, in one of the most important cases in Australian legal history, the Chief Justice of NSW, Sir Alfred Stephen, handed down a decision that would have profound implications for both the development of Australian property law and the property rights of the Aboriginal peoples of Australia. The case was Attorney General v Brown, and in his decision Stephen CJ ruled that the laws of property in Australia were governed by feudal principles. The shadow cast by Attorney General v Brown has been a long one, stretching down to the decision in Mabo and beyond. Judicial thinking and much legal scholarship continues to emphasise a connection between the feudal origins of the English law and the state of contemporary Australian property law, thereby perpetuating a "nostalgic" view of Australian property law. This book, in contrast, argues that the feudal imprint on property in Australia had been "washed away" by the early 1860s and that the decades of the early nineteenth century witnessed the making of a distinct Australian property law. Egalitarianism, rather than feudalism, this book argues, shaped the emergence of Australian property law. This book situates legal development in its social and political context, re-evaluating the relationship between political ideas, social values and law reform in early Australia.
AI Overview
"The Making of Australian Property Law" by A. R. Buck is a book that provides a fresh perspective on the origins of Australian property law, arguing that law cannot be understood without reference to its social and political context. Here is a comprehensive overview of the book:
Key Themes
- Feudalism vs. Egalitarianism: The book challenges the traditional view that Australian property law was shaped by feudal principles. Instead, it argues that egalitarianism played a significant role in the emergence of Australian property law, particularly in the early nineteenth century.
- Social and Political Context: The book situates legal development in its social and political context, re-evaluating the relationship between political ideas, social values, and law reform in early Australia.
- Colonial Adaptation: It explores how English law was adapted in the Australian colonial context, highlighting the unique challenges and opportunities that arose during this period.
Plot Summary
The book delves into the historical development of property law in Australia, focusing on the period from the early to mid-nineteenth century. It examines key legal cases, such as Attorney General v Brown (1847), which had profound implications for property rights in Australia. The author argues that the feudal imprint on property in Australia was largely washed away by the early 1860s, and that a distinct Australian property law emerged during this period.
Critical Reception
The book has received positive reviews for its innovative approach to understanding Australian property law. It is noted for its ability to situate legal development within its broader social and political context, providing a nuanced understanding of how law evolved in early Australia. The book is considered essential reading for students of law, history, and those interested in the development of property law in Australia.
Structure
The book is structured around several key themes, including:
- The Ghost of Feudalism: This section explores the lingering influence of feudalism on Australian property law.
- The Empire of Property: This chapter discusses the broader framework of property law in Australia.
- The English Inheritance: It examines how English law was inherited and adapted in the Australian context.
- The Colonial Adaptation: This section delves into the specific challenges and opportunities faced during the colonial period.
- The Pastoralists' Tenure: It focuses on the tenure systems used by pastoralists, which played a significant role in shaping property law.
Overall, "The Making of Australian Property Law" by A. R. Buck offers a compelling narrative that challenges traditional views of Australian property law, providing a rich and detailed analysis of its historical development.