Perspectives

Commercial law: How did we get here?

25 March 2022

the Honourable Justice Peter Applegarth AM

Most of us are too busy working out what the law is to have time to think about from where it came.

Modern commercial law consists of a multitude of statutes and a huge volume of caselaw. It builds on principles that were developed in 19^th Century England about subjects like agency and sales. We imagine that the law was devised by judges and lawyers based on pre-existing legal principles. But was it?

Professor Sir Ross Cranston QC is an Australian-born jurist who has researched and written about modern commercial law and its origins. His recent book, Making Commercial Law Through Practice 1830–1970, explores how laws governing commerce, trade, manufacturing, and financial services developed.

Professor Cranston contends that law and lawyers were not the driving force that is often thought. Regulation was largely absent, and judges tended to accommodate commercial needs so that market actors were able to shape the law through their practices.

Sir Ross’ 7 April lecture, ‘Making law through practice: examples from commercial law’, will address the Australian dimension, based on archival work in Australia. He will examine three areas – markets, agency and sales – to develop his thesis that, while the common law provided the backdrop to commercial activity, it was in practice a flexible tool to achieve what the parties wanted. If the rules did not accord with commercial need, then they were generally easily amended.

Sir Ross will make the point that commercial law in the period he explores was Empire law, but in the Australian context it sometimes took a different path from that in England.

Modern commercial lawyers will learn a great deal about the current law from the story of its evolution. We can see how the world of commerce and trade operates in a legal context.

Professor Sir Ross Cranston QC

Sir Ross Cranston is Professor of Law at the London School of Economics, where he was previously Cassel Professor of Commercial Law. After graduating from the University of Queensland with university medals in history and political science and law, he undertook post-graduate work at Harvard and Oxford. He has been an MP, Solicitor-General for England and Wales, and a High Court judge for England and Wales.