David Kearns

Supervised by Andrew Fitzmaurice, I wrote my PhD on the history of the early modern common law in England, focusing on the seventeenth century clashes over the role of the judiciary. The major result has been to demonstrate the efforts of early modern common lawyers to articulate their independence from the sovereign king. Faced with assertions of judicial subordination to monarchical will, common law judges retorted that holding judicial office entailed the interpretation and application of custom. Custom, found in precedents established by earlier judges, was a source of law that originated in statute created by king and parliament. Empowered by custom, common lawyers could restrain the sovereign’s power.

My current work tests the hypothesis that the early modern clash between custom and sovereignty has been imported into the Australian context, where it plays a critical role in native title jurisprudence. Since the early 1990s, the Australian High Court has heard a series of disputes over the customary rights of First Nations peoples in Australia and the power of Crown sovereignty. If correct, this suggests that modern High Court jurisprudence is a new iteration of a centuries-long unresolved battle within the common law tradition, stretching from the seventeenth to the twenty-first centuries. Initial findings are published in Law and History Review and the Historical Journal. Non-academic articles exploring related questions are published in Australian Book Review, Meanjin, and Sydney Review of Books. These questions are also addressed in Our Muddle, a podcast series with Associate Professor Ryan Walter.

Before joining the University of Queensland, I worked as a policy writer in Canberra.