Development of the common law by analogy to statute

Abstract

This article considers whether the common law can be developed by analogy to statute. Part I examines how attitudes across the common law world have shifted towards recognising a stronger interrelationship between statute and the common law, paving the way for the recognition of analogical reasoning to statute in Australia. Part II examines the High Court’s jurisprudence on this form of judicial reasoning. It examines the authorities that have explicitly discussed it, which have left the legitimacy of such reasoning open. It identifies numerous High Court cases spanning several decades and different areas of law which have developed the common law by analogy to statute, albeit often without explicitly recognising that they are doing so. Considered together, these cases demonstrate that such reasoning is already legitimate in Australia. Part III compares this Australian jurisprudence to that of the United States. It considers whether the American jurisprudence supports the legitimacy of this reasoning and what lessons might be drawn from it.