Law Reform, New Principle, Australia, common law tradition, legal evolution, statute law, subordinate legislation
Until comparatively recent times, continuous, systematic law reform has not been favoured with strong support in those countries nurtured in the common law tradition. In particular, many lawyers in Australia, as elsewhere in the common law world, have tended, for the most part,' to be suspicious and perhaps, subconsciously, more than a little fearful of legal evolution through legislative action rather than judge-made law. This state of mind has belied the realities of the twentieth century life of the law and in many ways as well, the thrust of the law as it evolved in common law countries in the nineteenth century. From the first half of the nineteenth century, through to the present, increasingly law has come to mean statute law and the subordinate legislation which has followed in its wake.2 Concomitant with this, the development of the doctrine of precedent in the past one hundred and fifty years and the frequent acceptance of Benthamite thinking has, on the surface at least, progressively constrained the law creating role of the judiciary. But the influences of older common law traditions have often remained strongly entrenched despite developments like these. While judicial decision-making has loomed much less importantly as an instrument of legal evolution, the common law methodology of moving in a piecemeal, case by case fashion, has often found its expression in a similar style of approach to law reform. For the most part, nineteenth century law reform in England, Australia and elsewhere in the common law world was a paradigm in this regard.
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Alex. C. Castles, “The New Principle of Law Reform in Australia” (1977-1978) 4:1 DLJ 3.