AUSTRALASIAN LAW REFORM AGENCIES
CONFERENCE - 14 APRIL 2004
LAW REFORM AND THE COURTS
At a time when there is some apprehension in this country about the prospects of judges
making or changing the law, the invitation to speak to a conference of representatives of law
reform agencies provides a welcome opportunity to say something about the role of the courts
in the development of the law. I prefer development of the law to law reform. Reform
suggests a process rather more grandiose than I am going to talk about.
How the legal landscape has changed. The common law, on which the organisation of a
substantial part of the world community is based, was developed by the judges. Of course,
then it was perceived more as a process of stating the law already existing - articulation of the
natural law. In England, well before the emergence of democracy, the judges and sergeants
taught the law in the Inns of Court and the judges, with the assistance of the advocates,
formulated the law. Even after 1688 the Parliament, unsupported by any organised
bureaucracy, did little through the 18th century in the way of innovative general law-making.
Professor Atiyah1 has provided an illuminating analysis of the annual volume of legislation
for 1770. It contains 99 Acts, and of these 55 were for specified road improvements and
similar public works. Nine were for improvement or regulation of specified canals, rivers
and harbours, nine concerned imports, exports and excise duties, five related to other taxes,
appropriations and coinage, five concerned the armed forces, three were for promotion of
fisheries in specified areas, nine were miscellaneous Acts of local or private nature. Only
four were of a public and general law-making character. Those figures bear out Maitland’s
assertion about 18th century legislative activity that:
The British Parliament seems rarely to rise to the dignity of a general
proposition.
1
See Atiyah, The Rise and Fall of Freedom of Contract, (1979) Chapter 5
