Tuesday, September 26, 2006



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.

I think what L.L. was trying to capture is the idea that native title is a bundle of rights: rights to gather and hunt, to camp, to perform ceremonies and so on. That's the sense in which it is being compared to usufruct - what it entitles the holder to do, not what mechanism of the law enables the holder to have those rights. Exactly what the rights are hasn't really been tested.
Yes, I understood that. My concern was with the term 'Anglo-American law'.
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I have already written extensively about usufruct (approx. life or beneficial) interest and antichresis in the ITI Bulletin. It would be worth looking at the Norman-French derivation of the 'uniquely' English term of trust which Equity Lawyers are so proud of. The Statute of *Uses* 1536 - which some Eng. law dictionaries incorrectly claim derives from the Latin word opus - abolished a would-be instrument of fraud where land was left in trust and was nicked by the trustee.
amm: Are those articles of yours you mention available online?
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