Restatements as a Source of Common Law

Restatements as a Source of Common Law

In his July speech before the Judicial Institute of Hong Kong, Robert S. French focused upon the work of ALI and its Restatements, and their relevance to the work of the courts in Hong Kong.

Judge French began by reflecting on the history of Hong Kong as a common law jurisdiction. He then noted that although other common law jurisdictions may have important doctrinal differences, they can still be looked to as an intellectual resource when appropriate. 

In addition to looking at the common law of England, Australia, Canada, and New Zealand, the former Chief Justice of Australia encouraged the judiciary to also refer to U.S. common law, highlighting ALI and its Restatements as a valuable common law resource.

Judge French noted that Restatements can be used as an exercise in comparative law to learn the state of U.S. law, and accept or distinguish as inapplicable to a particular case or circumstance. He then outlined how Restatements come together. 

"When hundreds of members of the ALI gather together in Washington to consider Drafts of Restatements and other ALI project documents, emphatic and forceful opinions are often expressed from the floor. Some of them lead to minor adjustments to a Draft. Others may lead to more extensive reconsideration." 

He further noted that, in the wake of the rising tensions in American politics and political leadership, ALI continues the historical practice of volunteerism and public good. 

"As a member of the ALI from outside the United States I found the process to be very impressive — a demonstration of American civil society at its best bringing together disparate views and interest-based perspectives in the pursuit of an overarching public interest."

Judge French is a Non-Permanent Judge on the Hong Kong Court of Final Appeal and adjunct professor at the Univeristy of Western Australia Law School. 

Read the full speech

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