In 1992, the Adelaide Law Review published an article by Paul von Nessen setting out the results of a study of High Court judgments from 1903 to 1987, in which he analysed the extent to which the Court had cited American case law. Adopting the same methodology, I have updated that study to the end of 1997.
This paper sets out the results of that study and discusses the trends evident from those results, suggesting factors that may have influenced the use and non-use of American cases by the High Court, and considers, by example, the ways in which the High Court has used American cases.
The High Court's use of American case law has dramatically increased over the last two decades in its search for new sources of law for an independent Australia. The way in which it has used American cases has occasionally been erratic, sometimes indicating an incomplete understanding of the basis of those authorities, but on other occasions, the use has indicated that the particular judges have a good insight into the American system and case law and its applicability to Australian circumstances.
Certainly, as Sir Anthony Mason has pointed out, American case law is a trackless jungle, but it is not so impenetrable that Australian lawyers and courts should seek to avoid it. There are valuable insights, analogies and ideas to be discovered in the jungle of American case law. In recent years, the High Court has encouraged lawyers to venture carefully into that jungle. Australian lawyers should accept the challenge and encourage the High Court to develop its knowledge and interests even further. Perhaps, if it gains a reputation for comparative analysis of American case law, the High Court might export its judicial insights to the USA (despite the American xenophobic view of foreign jurisprudence) in much the same way as English, Canadian, New Zealand, and Indian Courts have paid respectful attention to High Court judgments.
Comparative law can be used by judges for four main purposes:
Formulating questions and legal issues
Not all questions and legal issues that a judge considers in a case are always defined by the parties. Often some are developed and reformulated by the judge in the course of coming to a solution to the particular substantive matters presented by the dispute between the parties. In approaching the underlying questions and issues, developments in another country might provoke a judge to ask questions that might have been thought to have been settled in domestic law. Additionally, use of comparative law enables judges to see issues from a different perspective, and can provoke further questions in examining domestic law for its weaknesses.
Watson, has said, "What ... the law reformer should be after in looking at foreign systems [is] an idea which could be transformed into part of the law of his country." In his view, it does not really matter that the judge might not properly understand the foreign system of law or its context if the solution that has been found by the judge's foray into foreign law is still suitable and appropriate for the domestic context. Thus, while there has been some criticism of the High Court's use of American case law on the grounds that the Court did not pay proper regard to the differences in the systems, or it misunderstood the underlying assumptions upon which the American cases were founded, Watson would say that this does not really matter, provided that the solution is suitable, appropriate, and adaptable to the Australian system. It is the idea that is important, not the context of its source.
A further use of comparative law is to consider whether a proposed solution is consistent with a foreign law rule. Such an approach will be used if a judge is purposely trying to achieve consistency between systems, for example, in areas of international trade or commerce. A proposed solution might also be tested against its use in foreign law systems to gauge the probability that it will achieve its purpose. However, as Allen and Anderson point out, "it is difficult enough to state the purpose of any rule in one's own system; attempting to determine it in another system is even more difficult." They also note that, as it is rare for the effect of foreign law to be the subject of expert evidence, judges tend to make rather bold assumptions and assertions concerning the efficacy of a foreign rule and its probable impact if imported.
The fourth use of comparative law identified by Allen and Anderson is as a rhetorical device aimed to impress the audience with the strength of argument by associating it with the authority and prestige of distinguished foreign jurists. This type of use was also identified by Kiralfy in his study of English judges' use of American cases, in which he noted that many of the cases cited were "added ... as a further argument for the reasonableness of the rule" and that only a small number of American judges predominated in the references, notably Story, Marshall, Holmes and Cardozo.
American cases have been employed for these four purposes by the High Court.
Continued ...