Some reflections on the sources of our law

The author provides a detailed overview of some of the various sources of our law. He first considers language as a source of law: as not only the vehicle for the carriage of ideas, but also as the instrument of their illumination. The common law as a source of law, as distinct from law in its binding form, is examined. The author underscores the importance of an appreciation of English and Australian legal history and English precedent in understanding the shape, texture and content of our law, and how it might be applied or changed. He then considers foreign law, including judicial decision and scholarly writing, as a source of law. He observes two developments - the growing international recognition of a common body of legal principle and its effect on the development of legal doctrine in sovereign States; and the growth of non-sovereign, or qualified sovereign legal principles in the governance of transnational affairs and the resolution of international disputes. He considers the growth in international arbitration and refers to the ongoing debate as to the existence and nature of a new modern lex mercatoria. The author highlights the implications of these developments for judges and counsels judges to control the flow of information by only writing on legal principle when they have to. The author concludes with a brief discussion of legal theory as a source of law.