Working Languages

Still on the subject of indigenous Australians and their depleted heritage, Language Log reports that

the Federal Court of Australia has just ruled ... that an aboriginal people, the Noongar, hold 'native title' to portions of the Perth Metropolitan Area. This appears to be roughly equivalent to usufruct in Anglo-American law

This illustrates nicely the shortcomings of the term ‘Anglo-American law’ as used to denote what it is otherwise known as ‘the common law’ i.e. the law of those countries whose legal systems are based on or derived from English law (as distinct from the civil-law systems of continental Europe, Latin America etc.).

That definition includes many more countries than just England and the US, of course. Most notably, for present purposes, Australia.

Can it properly be said that Australia is governed according to 'Anglo-American law'?

Moreover, the use of this term in the Language Log quote makes Australian law appear to stand in contrast to Anglo-American law, as if it belonged to a different legal family. This can hardly have been the writer’s intention.

But it is the reference to ‘usufruct in Anglo-American law’ that clinches it. Usufruct is a civil-law concept derived from Roman law. It is no part of English law or of the common-law tradition. The fact that it is to be found in certain states of the US is a legacy of the civil-law systems that once operated there under French or Spanish rule. If the unfortunate expression 'Anglo-American law' can be used to encompass such a quintessentially civil-law institution as usufruct (and far be it from me to argue with Language Log on this) then it is no longer synonymous or consistent with the term ‘common law’ and it is hard to see what else there is for it to mean.

It’s still preferable to ‘Anglo-Saxon law’, of course.

More here on the concept of native title in Australian law.