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Obituaries Australia

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Stoljar, Samuel (Sam) (?–1990)

by D. W. Greig

Samuel Stoljar was my co-worker and close friend in twenty five years of legal research and writing.

He was my first colleague in the Department of Law at the Research School of Social Sciences. Between us, we sufficiently covered the legal field for the purposes of the infant institution, Sam in private law, myself in public law, and together from different angles the logical and moral structure of the law.

We complemented each other not only subject-wise, but also in the mindset of our approach to jurisprudence. My years of practising the law caused me to consider it as a social technology, to be used for purposes and values set by society.

Sam sought to find enduring values and techniques in the law itself - its innate values and structure. He combined a familiarity with the European law systems derived from Rome - in particular modern French law - with a thorough grounding in the English common law and equity.

His penetrating intellect and luminous style gave him an exceptional influence among legal scholars around the world, and he leaves no successor with a comparable breadth of interests and clarity of mind. 

It is difficult for any outsider to the grief of a family occasion to do justice to their feelings of loss. All I can do is to say something of Sam Stoljar as a scholar and colleague.

The key to Sam's approach to his writing is to be found in two factors - his historical view of legal development and his wish to give it a philosophical or theoretical framework - both designed to 'helping towards a deeper, a more intellectual understanding of the law' (to quote his own words from the preface to Mistake and Misrepresentation: A Study in Contractual Principles (1986).

Sam's sense of historical continuity is most obviously proclaimed in A History of Contract at Common Law (1975). The stature of this work can be gathered from its review alongside Simpson's A History of the Common Law of Contract Vol. 1 in the American Journal of Legal History. Simpson was concerned with the history to 1677, whereas Sam's primary emphasis was on the law after that date.

Sam's sense of historical development is also to be seen in two of his doctrinal works - The Law of Agency, its History and Present Principles (1961) and The Law of Quasi -Contract (1964), the second edition of which appeared last year.

Of the former work, Clifford Parker wrote in the Modern Law Review of Sam's 'considerable historical research, the patient scholarship, the valuable flash of insight, the simple illuminating observation'.

As to the other side of Sam's intellect, if his works on Moral and Legal Reasoning (1980) and An Analysis of Rights (1984) were less successful, it may be because he was so much better at applying a philosophical approach to developing various theoretical frameworks for legal doctrine.

Sam wished to provoke thought about law at the deepest level and he was prepared to be unorthodox in order to achieve this effect. A charge of legal eccentricity would be one that he relished. Indeed perhaps the most significant tributes to Sam's standing as a scholar (and I am sure among those he would have appreciated most) have come from those who remained unconvinced by Sam.

One of his sternest critics said of the first edition of Quasi-Contract (1964) that it 'displays to the full those qualities which are always to be found in Prof Stoljar's work, namely originality and immense learning.'

Douglas Whalan said that whenever he was asked about anyone at the ANU when he is in Britain or Europe it was invariably Sam Stoljar. As to the sense of affection one only has to refer to our present Prime Minister whose feelings towards Sam are referred to in the d'Alpuget biography. So Sam, we share your family's sense of loss: we shall miss you.

Original publication

Citation details

D. W. Greig, 'Stoljar, Samuel (Sam) (?–1990)', Obituaries Australia, National Centre of Biography, Australian National University,, accessed 5 August 2020.

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