BY JENNIFER CORRIN CARE
SCHOOL OF LAW
UNIVERSITY OF THE SOUTH PACIFIC
BARRISTER & SOLICITOR
Title: Legal Terms
Editors: The Honourable Dr. Peter E. Nygh and Peter Butt
Published by: Butterworths, Australia (1998)
This is a small book (137 pages) designed as a quick point of reference for those wanting an explanation of common legal terms. The dictionary section is only 112 pages long. The balance of the book consists of an appendix, setting out the Commonwealth Constitution in full.
The book is aimed at students new to legal studies. The publisher’s note states that it will be helpful for senior secondary school students or those at tertiary level. However, inclusion of the Constitution at the expense of a wider list of defined terms would perhaps recommend it more as a resource for the former group.
The book has a clear layout and includes etymologies and pronunciations of difficult words and foreign terms. The International Phonetic Alphabet symbols for Australian English are set out at the beginning of the book to assist with this.
With regard to the substance of definitions, in some cases clarity appears to have been sacrificed for brevity. For example the definition of assignment as ‘a transfer of rights or liabilities such as those that arise under an instrument, chose in action, or debt’ leaves much to be said. Similarly, the definition of ‘Appearance’ and ‘Entering an appearance’ does not reveal that this is often done by filing a document. An even more striking example is the definition of ‘hotchpot’ as ‘a pudding; something consisting of blended parts’. This really sheds no light on the legal meaning of the word, which is used to describe a fund which is to be divided between a class when brought together with a prior special share of one of the class for the purposes of calculating each beneficiary’s share.
The dictionary has a distinct Australian bias, and perhaps the title ‘Australian Legal Terms’ would be more appropriate. In fact, the small print on the title page verso reveals that the book consists of ‘a selection of terms extracted from Butterworths Australian Legal Dictionary’. Given this orientation, it is understandable that the text omits many terms that might be of use to South Pacific lawyers. However, it is perhaps surprising that the current debate on native title has not spurred the editors to put more emphasis on terms relating to indigenous law. ‘Mabo’s case’, ‘native title’, ‘aboriginal customary law’, ‘aboriginal person’, ‘aboriginal tradition’, and ‘terra nullius’ are all defined. However, the treatment given to the term ‘custom’ is outdated. It is expressed as:
Unwritten law established by long usage; a local law as distinguished from the general common law; the local common law of a particular locality, district, or manor in which it exists.
Not surprisingly, the word ‘manor’ used in this definition is not defined in the book. The term refers to districts in England, of which the freehold was vested in the lord of the manor, which have ceased to exist (the Law of Property Act 1922 abolished copyhold tenure and manorial incidents were subsequently extinguished). This hardly seems a useful term of reference for such an important word as ‘custom’.
The definition also fails to distinguish between custom and customary law, which would be useful. There is no cross-reference between the term ‘custom’ and ‘aboriginal customary law’.
The work does contain some cross-referencing, but this device might usefully have been used in additional places. For example, there is no cross-reference between ‘misrepresentation’ and ‘representation’.
A brief work must necessarily be selective about terms included. However, there are some common terms, such as ‘declaration’ which are missing. On the other hand some non-legal terms, such as ‘eavesdropping’ have been included. Whilst this could be justified on the basis that eavesdropping was technically an offence in England and Wales, until abolished by s13 of the Criminal Law Act 1967 (UK), there is no mention of the legal connotations in the definition.
This text may be a useful resource for senior secondary students in Australia, if they are introduced to legal terms and the Constitution as part of the same exercise. The same may be true for Australian tertiary students in programmes other than law. For Australian law students, however, purchase of a comprehensive law dictionary and a separate copy of the Constitution would probably be more beneficial. Students studying at the University of the South Pacific or elsewhere in the region outside Australia would probably not find this text a worthwhile purchase, unless they have a particular interest in the Australian Constitution.