The chapter surveys the major institutions and values of English law in the era of the first British settlement in New South Wales. The legal order of 18th-century England displayed great complexity and technicality, the result of an extended process of historical growth and adaptation by which new institutions and doctrines were grafted on to existing structures and procedures. Two important points of unity and direction existed.The common law, a system of legal custom developed over centuries by the practices of the royal courts and associated with the historic customs and liberties of the community. And parliamentary statute, which became in the century a frequent and reliable instrument of legal change and governance, shaping matters of criminal justice, commerce and domestic economy, local government and global empire. A major theme of recent scholarship is the myriad and often incremental ways in which statute altered, influenced and weakened England’s complex legal inheritance, as Parliament determined which of English liberties and legal practices would survive or flourish in the localities and in the empire.

This introduction is designed to give readers an overview of or a refresher on the basics of Australia’s legal system. While many readers will be familiar with these basics, others might not be so this material has been included to inform the specific discussion of law that follows in this book’s substantive chapters.

The eighteenth century was a period of dramatic change in political and legal thought. Much of the way in which we currently conceive of democratic institutions and the responsibilities and rights attached to citizenship can be traced back to concepts that dominated eighteenth-century thought. The social contract was debated by figures such as John Locke, Algernon Sidney, David Hume, Edmund Burke, and Mary Wollstonecraft. Among the many issues under deliberation were the validity of consent, the will of individuals, the role of virtue, and the rights of self-governance. Legal thought was very closely tied to political thought because law was a foundation of political authority. Natural law, which was associated with divinity, rose in importance because it protected inalienable rights, such as self-preservation. Positive law, that is, laws of civil society such as common law and statute law, could be reformed and updated as civil society evolved. This flexibility was praised by jurists such as Lord Mansfield, but it also drew attempts to clarify and systematize law by Sir William Blackstone and Jeremy Bentham, as they prepared the citizenry for a growing engagement with the law.

In general, when people in society refer to ‘the law’ they mean the rules made by parliaments. They have learned that ‘the parliament makes the law and the judges decide disputes.’ As a student you now know that the process of judicial interpretation inevitably strays into lawmaking, but in fact the popular understanding of law is just about right. In the modern era, the overwhelming majority of laws are made either by, or with the permission of, elected members in our Parliament.