United States Influence on the Australian Legal System

• Author: The Hon. Robert French AC
• Position: Chancellor, University of Western Australia
• Pages: 11-29

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UNITED STATES INFLUENCE ON

THE AUSTRALIAN LEGAL SYSTEM

THE HON ROBERT FRENCH AC*1

I INTRODUCTION

Contemporary debates in the United States about the use of foreign law precedents

in constitutional decisions sometimes seem to reect a determined resistance by

conservative jurists in that country to foreign law inuences. Some of that debate,

however, comes off a rather narrow base of cases involving the use of foreign law

to inform the application of normative constitutional terms, in particular, ‘cruel

and unusual punishment’ in the Eighth Amendment. By way of contrast, the early

legal history of the United States reects a strong tradition of interdependence and

interconnection with other countries of the common law tradition and beyond.

This paper concerns that history and the ways in which the United States has

inuenced our Constitution, the High Court’s interpretation of it, and the

development of our own law in a variety of areas. Those inuences come from

decisions of United States courts on subjects relevant to the development of

Australian law, the interaction of Australian academics, lawyers and judges with

counterparts in the United States and, related to that, the important Restatement

Projects of the American Law Institute which seek to provide comprehensive

statements of the common law reecting its development in the State jurisdictions

of the Union and avenues for its future development. The United States also

has had a more direct effect on our legal system through our bilateral free trade

agreement.

From an Australian perspective, the United States legal system and jurisprudence

is a rich intellectual resource for Australian judges, lawyers, academics and

law-makers. A particular element of that intellectual resource is the work of the

American Law Institute, discussed later in this paper.

II THE MOVEMENT OF LAW ACROSS TIME AND SPACE

Major legal traditions and principles have historically resisted connement to

national silos. Much legal principle which we take for granted today is a product

of evolutionary processes which were found in the common law tradition and

which themselves borrowed from other legal traditions. The laws of ancient

Rome collected by the Emperor, Justinian, in the 6th century AD, had a direct

inuence on the development of European legal culture and the civil law tradition,

* Chancellor, University of Western Australia

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and an indirect inuence on the development of the common law. The English

legal commentators Glanville and Bracton, in the 12th and 13th century, used

Justinian’s institutes. Bracton resorted to principles taken from Roman law to

ll in gaps in legal materials available to him at the time. The great American

legal scholars James Kent and Joseph Story frequently cited Roman and civil law

sources in the commentaries which they produced in the 19th century.

III THE COMMON LAW TRAVELS TO THE UNITED

STATES

The common law of England, evolved through custom and judicial decisions

over centuries, became the common law of the English colonies subject to

modication to local conditions. It travelled to the American colonies. There has

been some debate about the basis upon which it travelled there, whether they were

conquered colonies or ceded colonies or whether it travelled under the ‘birthright

of Englishmen’ principle and whether and to what extent it was displaced by

Frontier law. It is not necessary to explore those academic and historical debates

here. It sufces to say that despite post-revolutionary hostility to things English,

the work of the great English common law scholars was inuential in the early

United States. Blackstone’s Commentaries on the Laws of England, published in

the 18th century, sold almost as many copies in the United States as they did in

England. When Abraham Lincoln was a law student he purchased a partnership

interest in a grocery store and tried, without success, to generate an income. The

story goes that the best business deal he ever did in the grocery line was the

purchase of an old barrel for 50 cents, which turned out to contain, under some

rubbish at the bottom, a complete set of Blackstone’s Commentaries.1

IV COMMON LAW EXPORTS FROM THE UNITED

STATES

From the early years of the Union, the common law travelled back from the United

States to its birthplace. James Kent’s Commentaries on American Law tried to

integrate the laws of each of the States of the United States with those of England,

and to draw comparisons with the systems of France, Holland and other nations of

the Continent. It was used as a resource in England, Canada and Australia. One

of his underlying purposes was to offset the prevailing mood of hostility in the

United States to the continued use of the common law as something English. He

tried to do this by showing that the other systems of law, like the common law,

were based on natural law and so arrived at similar results in practice.2 Some of

the principles developed in his Commentaries were adopted in English judicial

decisions involving the law relating to bills of exchange, the effects of intoxication

1 F T Hill, Lincoln the Lawyer (The Century Co, 1906) 50.

2 B H McPherson, The Reception of English Law Abroad (Supreme Court of Queensland

Library, 2006) 490.