Digitising the Global Foundations of the Common Law by Dr Philip Chung & Dr Graham Greenleaf - presented at the Research Support Community Day 2017

1. S
Digitising the Global Foundations of the
Common Law
Philip Chung and Graham Greenleaf
AustLII and UNSW Law
2017 Research Support Community Day
(in conjunction with ALIA Information Online Conference)
UNSW, Sydney
13 February 2017

2. The Common Law
S A long history
S Now 800 years since the Magna Carta
S In some ex-colonies, 200+ years of common law as part of legal history
S Interdependence – two elements
S ‘Reception’: British settlers took to their colonies so much of the common law and
statutes at time of settlement as suited their circumstances; reinforced by
mobility of colonial administrators
S Precedent: unusual role of cases in the common law
S Binding authority of common law received, and hierarchical supremacy of the
Privy Council (vertical effect).
S Persuasive authority of decisions of superior courts in other parts of the
common law world (horizontal effect).
S Results: Very high interdependence of legal developments across the common law world,
particularly pre-1900, but also after independence
S these inter-relationships are still relevant in today’s law

3. Example: Heydon’s Case (1584) – origins of the ‘mischief rule’ in
statutory interpretation – citations from last year only:

4. Current research issues in
international common law
S Legal historians identify issues such as:
1. Is the ‘UK reception + gradual divergence’ model sound?
2. How did horizontal influences between colonies occur?
3. How did legal variation (innovation) spread?
4. Did colonial variations return to influence the UK?
5. What is the longevity of case law influences?
S Other historians ask different types of questions
S Eg how did the legal position of slavery differ across colonies?
S Cases, annual legislation, gazettes & citation data are key ‘raw
materials’ for such research
S New research techniques are becoming possible
S Data visualisations may be very valuable

5. Scope of international common law
(Commonwealth as below + Ireland, HK,
Myanmar…)
What would data visualisation of citation flows look like, over
time?

6. Extract from front page of CommonLII www.commonlii.org - 60+
jurisdictions

7. Purpose of presentation
S Different providers of international common law history:
S commercial (eg Hein Online collections, LxNx & W/TR citators)
S non-profit but not free access (eg legal history societies – Selden
(England))
S free-access providers (eg Internet Archive, G Books, unis & govts)
S Few of these provide individual searchable cases/statutes, or
across multiple jurisdictions
S What role could and should Legal Information Institutes (LIIs)
play?
S ‘free access’ is the most obvious contribution
S what else can LIIs add that is distinctive and valuable?

8. An attempt at an alternative approach – Australasian
Colonial Legal History Library (started 2011)
First Australasian Legal History Library investigators meeting (2011)
From Partner Universities: Rob Foster, John Williams, Wilfrid Prest, Amanda Nettlebeck (all
U.Adelaide), Mark Finnane (GriffithU), Lisa Ford, Catherine Bond (both UNSW), Anne Twomey (USyd),
Bruce Kercher (Macquarie U), Ross Grantham (UQ), Mark Lunney (ANU College of Law), Marisa
Bendeich (Australian Law Librarians Association (ALLA)), Shaunnagh Dorsett (UTS), Barbara Thorsen
(UQ), Andrew McLeod (USyd – by invitation) From AustLII: Graham Greenleaf, Andrew Mowbray, Philip
Chung, Brent Salter, Carol Wong, Trevor Roydhouse, Jill Matthews;

9. Australasian Colonial Legal History Library
S Law of 7 Australasian colonies (incl. NZ) to 1900
S 44 databases
S 345K searchable items
S 20,000 cases: 14K Acts; 1K other; 300K Gazettes
S 15 New Zealand databases
S Built jointly by NZLII and AustLII
S Funded by ARC grant to AustLII for Library,
S Located on NZLII, accessible via CommonLII

10. <http://www.austlii.edu.au/au/special/colonialhistory/>

11. Australasian Colonial Legal History Library
S Why different from most historical scanning projects?
S Volumes split, metadata extracted
S Enables searching of individual cases or Acts
S Tracks citations of cases, Acts, articles etc
ie the normal things that LIIs do, others often do not
S Example: (debt or debtor) near (prison or imprisonment)
S 1,557 results from 7 colonies 1788-1900
S Comparative searches not otherwise possible (see ‘By Database’)
S Results include all content types
S Cases (reported &‘recovered’), Acts, gazettes and scholarship
S Display by Date ‘Earliest first’ - 1796 case
S Enables history of imprisonment for debt to be followed
S Display by Citation Frequency - 1892 case, 18 citations, latest July 2016 in VSC
S Continuing influence of c19th cases is apparent

12. Australasian Library: Proof of concept?
S Was it a successful experiment?
S Demonstrably ‘do-able’: almost every annual Act and reported
case in Australasia, 1788-1900
S High use: 2.3M page accesses in 2015
S Cases 180K+; Legn 1.8M+; Gazettes 340K+
S Support from legal historians and Universities
S A$400K from 15 Universities for Stage 2
S Relevance: High recent citations of pre-1900 cases
S Demonstrates relevance, not Library causation
S Creates greater accessibility of c19th cases still in use

13. Potential for an International History
of the Common Law Library
S Background
S Most LIIs have focused on current legislation & recent case-law, not
historical materials
S But there are already many valuable pre-1900 databases on many LIIs,
sufficient for a small prototype
S Prototype developed
S Cooperation between 10 LIIs – AsianLII, AustLII, BAILII, CanLII, CyLaw,
HKLII, LII of India, NZLII, an PacLII – IALS in progress
S Located on CommonLII; not yet public until expanded more
S 65 databases containing 500K+ searchable items, 1220-1900: 179K cases;
23.5K legislation items; 300K gazettes; 3K other
S Substantial from 20 pre-1900 jurisdictions; minor from many others

15. Illustrative searches of the IHCL
Library
S (debt or debtor) near (prison or imprisonment)
S 3,380 results (cf 1,557 for Australasian Library)
S ‘By Database’ - content from 43 databases in 15 jurisdictions
S ‘By Citation Frequency’ – Savile vers Roberts (1792): 51 citations,
from 10 countries, most recently WADC, Dec 2016; + Law Jnl
articles
S Using database groupings (cases, legn, sch’ship)
S 42 scholarship items (Australasian); 2144 cases
S 66 Acts, from 12 jurisdictions; ‘By Date – Earliest first’

16. Some more example searches…
S slave or slavery
S 872 results from 67 databases!
S hypothecat*
S to pledge as security without delivery of title or possession (an old form of
chattel mortgage)
S 535 results; (1871) case cited 75 times in 10 countries to 2014
S Usufruct*
S the right to enjoy the use and advantages of another's property short of
its destruction or waste
S Roman law term appearing 239 times in 27 databases
S capital punishment or death penalty
S Most-cited case (1839) cited in 10 countries up to Sept 2016

17. Requirements for full development of an
International History of the Common Law (IHCL)
Library
1. LII co-operation
2. Data acquisition
3. Funding
4. Full digitisation facilities
5. Decide digitisation priorities

18. Requirements for an IHCL Library (cont)
1. LII co-operation
S Library depends on LII cooperation
S allowing searching of LII data from the Library,
S inclusion of LII data in the citator (LawCite)
S Hope other LIIs will develop more historical DBs
S Data-sharing aims of the projectAustLII will cooperate with LII
partners, where feasible, on digitisation of content only
available locally
S AustLII will assist LII partners to provide access to databases
digitised by AustLII, relevant to them, via their own services

19. Requirements for an IHCL Library (cont)
2. Data acquisition
S Locating hard copies to digitise is often difficult; cooperation
with IALS and other FALM members may reduce problems.
S Some scanned data is available via Internet Archive etc
S Copyright issues are relatively low: original data is 100+ years old;
care needed with ‘published edition’ copyrights
S Possible data swaps: Some other publishers may be interested
S University/academic libraries may be able to assist with locating
print copies

20. Requirements for an IHCL Library (cont)
3. Funding
S Current Aust. funding (pre-1900 prototype) (2016/17) approx.
A$80K (from UNSW, other Australian Unis, ANDS fund) - India,
Myanmar
S Other possible funding 2017/18 – African, Caribbean priorities
S Potential joint international funding applications with other LIIs
S ARC LIEF (research infrastructure) 2018 funding application –
“Global Foundations of the Common Law Library (to 1900)” –
with interest from 12 universities – proposed budget approx
$1.1 M (ARC + partner contributions)

21. Requirements: 4. Full digitisation facilities
(i) Destructive digitisation
S Guillotine removes spines of law reports or legislation
S resulting loose pages fed through 110ppm duplex scanner
S Australian libraries have donated sacrifices to public access
All types of digitisation facilities are needed.

22. Digitisation
facilities (cont.)
(ii) Non-destructive digitisation
• Necessary for rare texts
• Expensive – about $100K
• Pages turned by suction
• Up to 1000 pages/hour
(iii) Microform digitisation
• Last resort if paper unavailable
• New equipment largely automates
scanning
Scanning is only step #1
• All digitisation involves OCR
processing; splitting of scans and
text into searchable items;
extraction of metadata and citations
• LIIs do this ‘value adding’ well

23. Requirements for an IHCL Library (cont)
5. Digitisation priorities
S What should be the priority for new digitisation?
S Some relevant factors
1. Priorities of funding sources, Investigators and partner LIIs
2. Opportunity: Availability for digitisation (preferably destructive)
3. Decisions of the highest courts
4. Decisions of the most cited courts
5. The earliest reported decisions in each jurisdiction
6. Decisions which are the most difficult to find
S Implication: Progress will be incremental & multi-fronted
S What data becomes available from collaborating LIIs will be at least as
important as any digitisation priority of AustLII

24. The Common Law
as World Heritage
S The Common Law is part of humanity’s intangible cultural heritage:
S origins at least 800 years ago
S a joint international enterprise over 200+ years
S one pillar of the rule of law and human rights
S oppressive colonial aspects have diminished over time
S Possible nominee for UNESCO’s classification and support as Intangible
Cultural Heritage of Humanity
S Probably as a ‘cultural practice’ involving transmission of special knowledge and skills
S Multiple countries can nominate a practice
S Providing free access to common law history gives strong support for classification
S Individual LIIs, and/or FALM could become NGOs accredited under the
Convention (A 91)
S experience in safeguarding this cultural practice, through its members providing free
access to its materials: ‘custodians’ of the common law
S LIIs as ‘custodians’ of the common law and its history

25. Acknowledgments
S LII partners: BAILII; CanLII; CyLaw, HKLII; NZLII; PacLII; IALS
S Prof Bruce Kercher and Peter Bullock (ColConC DB)
S All CIs in past and proposed legal history LIEF applications
S AustLII staff, particularly David Bramston
S Funding: UNSW Library; UNSW Law; Deakin Uni.; Aust.
National Data Service (ANDS)
S Commonwealth map
S Rob984 - Derived from File:BlankMap-World-Microstates.svg, CC BY-SA 4.0
S https://commons.wikimedia.org/w/index.php?curid=50344792