Leading cases, hermeneutics, and the politics of legal history

Presented by ANU College of Law

Professor Joshua Getzler will reflect on the role of "leading cases" in forming the common law tradition, and re-examine the mode of historical analysis of cases pioneered by AWB Simpson. Simpson's historicisations dipped the law in cynical acid, using the surrounding context of court cases to show how accidental or arbitrary the doctrines of the law could be.

Another approach, more familiar from the Cambridge schools of political thought from Maitland to Skinner, is to site legal ideas in an intellectual longue durée, and then show how later actors changed and adapted the original meaning of old cases for political ends. In this seminar we will look at some examples drawn from equity and trusts, including cases establishing key principles of charitable trusts, floating charges, and fiduciary duties of loyalty. Possible applications of old jurisprudence to current controversies, such as First Nation rights, will conclude the discussion.

Joshua Getzler is Professor of Law and Legal History at the University of Oxford and a Fellow of St Hugh's College Oxford. He was educated in history and law at the Australian National University and the University of Oxford. He has taught at Oxford since 1993. He combines modern legal research, looking at institutions of commercial and financial law, with historical research, chiefly trusts and property in the 18th and 19th centuries, with glances at the influence of Civilian and religious laws on more modern jurisprudence. He has taught and researched at the Australian National University, the Hebrew University, Tel Aviv University, the University of Chicago, and the University of Pennsylvania, and he holds an adjunct post at the University of New South Wales.