UNIT 5 LAW BY CASE PRECEDANT INTRODUCTION In this long Chapter, we engage in the difficult task of attempting to probe in detail into the full nature of law by case precedent. We will concentrate mainly on a direct analysis of the several cases that are here included. But we will first review the theoretical materials following. In ensuing chapters we will then consider the present status of case precedent in Zambia and discuss possible alternatives for the future. Herbert Uncommon Law, (Methuen, London, 1969 (K635-HER), Pages 155-156 Objectives Alt the end of this unit, you should be able to: (a) Prove into the full nature of hour by case precedent. (b) Analyse various eases and their references to previous court decisions made. Topic 1: Case Precedent (‘Are we) for common sense or for the Common Law? That of the naked issue, unwelcome, though it must be to any member of our honourable profession. Now, what is the Common Law? It is a body of principles, customs, doctrines, rules, and decisions not made by Parliament but handed down from Court to Court, from judge of judge, through many generations. In theory we have nosuch thing as judge ~ made law. Wherever a question arises to which precedent can provide no definite answer the Court must take what in effect is a new decision; but that decision in supposed to follow necessarily from some established principle or doctrine, and the agreeable fiction is that the decision was there already, though hidden till that day in the inexhaustible womb of the Common Law. The opinions, have repeatedly affected a “hand-boiled" air, sadistic manner. “The courts,” one will find them declaring, cannot depart from an old rule “to do justice in a particular case”. The court is governed by the principle of law, and not by the hardship of any particular case”. “It is better for the public that courts should adhere to general established rules, than that those rules should yield to circumstances of compassion in particular cases, however strong”. “The court is not permitted to indulge its feeling at the expense of unsettling the law, or to break with the decided cases to sympathize with the petitioner’s misfortune”. “The case, perhaps, may be hard but the law has made it so”. Several arguments have been advanced in support of this harsh doctrine. (1) The first is an argument of justice. Justice, it is said, requires equality of treatment. It would be intolerable, so the argument goes, if the rule applied when Mr. Wiseman sues Mr. Simple were applied when the same question arises subsequently in a suit of Mr. Bold against Mr. Timid, To prevent such a result, it is said to be necessary that court, deciding a particular case, should not act on its sense of fairness, in the case before it, but should consider what has here before been decided in like cases. Only so far can caprice and subjective. My Lords, as you know, this is nonsense...(Berman and Greiner(1996)Nature and Functions of Law (Brooklyn, Foundation, (KB 20-BER), p 385. “In a legal system which attaches primary importance to the authority of past judicial decisions as in England and the United States, analogical reasoning in adjudication characteristically takes the form of (a) the search for a fact —situation in a previously decided case comparable to the fact — situation of the case before the court, (b) extraction from the previously decided comparable case of the principle upon which that case was decided, and (c) application of that principle to the case at hand. Each of these three steps is generally recognized to be dependent upon the other two.” (Liewellyn (1961), The Bramble Bush as quoted in Auerback, et. A\(1961)., he Legal Process, (Chandler, San Francisco, 1961 (KB 85-AUE) p 43-48, Now for a while | am going to risk confusion for the sake of talking simply. 1 am going to treat as the rule of the case, the ratio decidendi, the rule the court tells you is the rule of the case, the ground as the press goes, upon which the court itself has rested its decision. For there is where you must begin, and such refinements as are needed may come after. The Court, | will assume, has talked for five pages, only one of which portrayed the facts assumed. The rest has been discussion. And judgement has been given for the pretty who won below: judgement affirmed. We seek the rule. The first thing to note is this: no rule can be the ratio decidendi from which the actual judgment (here: affirmance) does not follow. Unless affirmance follows from a rule, it cannot be the rule which produced an actual holding of affirmance. But that holding is the decision, and the court speaks ex cathedra only as to the dispute decided, and only as to the decision it has made. At this point, too, | think you begin to see.the bearing of the procedural issue. There can be a decision (and so an ex cathedra ratio) only as to a point which is before the court, But points come before a court review by way of specific complaint about specific action of the court below, and in no other way. Hence nothing can be held which is not thus brought up. BActivity 1 (a) Examine the nature of common law . (b) Explain by may of interpreting the notion that no rule can be the ratio decidendi from which the actual judgement does not follow. But our troubles with the ratio decidendi are not over. We meet forthwith a further formal one. Our judge states his facts, he argues his position, he announces his rule. And lo, he seems but to have begun. Once, clean across the plate. But he begins again, winds up again, he delivers his ratio — this time, to our puzzlement, the words are not the same. At this point it is boarder than it was before, there it is narrower. And like as not he will warn up another time, and do the same job over ~ differently again. | have never made out quite why this happens. A little, it may be due to a lawyer's tendency to clinch an argument by summarizing its course, when he is through. A little, it may be due to mere sloppiness of composition, to the lack, typical of our law and all its work, of a developed sense for form, juristic or esthetic, for what the Romans know as elegantia. Sometimes | get a wry suspicion that the judge repeats because he is uneasy on his ground, that he lifts up his voice, prays his conclusion over loader and louder, to gain and make conviction, much like an advertiser bare of arguments except his slogan. At other times | feel as I read opinions the thrill of adventure in an undiscovered country; the first and second statements of the ratio, with all that had left up to them, are like first and second chartings of what has been bound and what surmised — knowledge and insight growing as the opinion bulls to its conclusion. But whatever the reason, recurrent almost — repetition faces us; also the worry that the repetition seldom is exact. Which phrasing are we then to the to? Perhaps in this, as in judging how far to trust a broadly stated rule, we may find guidance in the facts the court assumes. Surely this much is certain. The actual dispute before the court is limited as strictly by the facts as by the form which the "procedural issue has assumed. What is not in the facts cannot be present of decision. Rules which proceed an inch beyond the facts must be suspect. But how far does that help us out? What are the facts? The plaintiff's name is Atkinson and the defendant's Walpole. The defendant, despite his name, is an Italian by extraction, but the plaintiff's ancestors came over with the Pilgrims. The defendant has a schnauzer-dog named Walter, red hair, and $30,000 worth of life insurance. All these are facts. The case, however, does not deal with life insurance. It is about an auto accident. The defendant's auto was a Buick painted pale magenta, license number 732,507. The defendant's wife is a faded blonde. She was attempting back seat driving when the accident occurred. He had turned around to make objection. In the process the car swerved and hit the plaintiff. Then sun was shining; there was a rather lovely dappled sky low to the West. The time was late October on a Tuesday. The road was smooth, concrete. It had been put in by the McCarthy Road Work company. How many of these facts are important to the decision? How many of these facts are, as we say, legally relevant? Is it relevant that the road was in the country or the city; that it was concrete or tarmac or of dirt; that it was a private or a public way? Is it relevant that the defendant was driving a Buick, or a motorcar, or a vehicle? Is it important the he looked around as the car swerved? Is it important that he looked around as the car swerved? Is it crucial? Would it have been the same if he had been drunk, or had swerved for fun, to see how close he could run by the plaintiff, but had missed his guess? Activity 2 Discuss this statement critically: Court decisions must be based on facts. Is it not obvious that as soon as you pick up this statement of the facts to find its legal bearings you must discard some as of no interest whatsoever, discard 15others as dramatic but as legal nothings? And is it not clear, further, that when you pick up the facts which are left and which do seem relevant, you suddenly cease to deal with them in the concrete and deal with them instead in categories which you, for one reason or another, deem significant? It is not the road between Pottscille and Arlington; it is “a highway”. It is not a turning around to look at Adores Walpole but a lapse from the supposedly proper procedure of careful drivers with which you are concemed. Each conerete fact of the case arranges itself, | say, as the reprehensive of a much wider abstract category of facts, and it is not in itself but as a member of the category of facts, and it is not in itself but as a member of the category that you attribute significance to it. But what is to tell you whether to make your category “Buicks” or motorcars” or “vehicles? What is to tell you to make your category “road” or public “highway”? The court may tell you. But the precise point that you have up for study is how far it is safe to trust what the court says. The precise issue which you are attempting to solve is whether the court's language can be taken as it stands, or must be amplified, or must be whittled down. Activity 3 This brings us at last to the case system. For the truth of the matter is a truth so obvious and trite that it is somewhat regularly overlooked by students. That no case can have meaning by itself? Standing alone it gives you no guidance. It can give you no guidance as to how far it carries, as to how much of its language will hold water later. What counts, what gives you leads, what gives you sureness, that is the background of the other cases in relation to which you must read the one. They colour the language, the technical terms, used in the opinion. But above all they give you the wherewithal to find which of the facts are significant, and in what aspect they are significant, and how far the rules laid down are to be trusted. 16Here, | say, is the foundation of the case system. For what, in a case class, do we do? We have set before you, at either the editor's selection or our own, a series of opinions which in some manner are related. They may or may not be exactly alike in their outcome. They are always supposedly somewhat similar on their legally relevant facts. Indeed, it is the aspects in which their facts are similar which give you your first guidance as to what classes of fact will be found legally relevant, that is, will be found to operate alike, or to operate at all, upon the court. On the other hand, the states of fact are rarely, if ever quite alike. And one of the most striking problems before you : when you find two cases side by side which show a difference in their facts, or what difference in the procedural set-up, has produced that difference in result. Those are the two problems which must be in your mind as you examine the language of the opinions. | repeat them. First, what are the significant categories of facts, and what is their significance to the court? Second, what differences in facts or in procedural set- up produce defenses in the court's action when the situations are other wise- alike?Activity 4 Analyse the implications you should consider in the case system by ‘examining the language of the opinions. We turn first to what | may call the orthodox doctrine of precedent, with which in its essence, you are already familiar. Every case lays down a rule, the rule of the case. The express ratio decidendi is prima facie the rule of the case since it is the ground upon which the court chose to rest its decision. But a later court can re-examine the case and can invoke the canon that no judge has power to decide what is not before him, can, through examination of the facts or of the procedural issue, narrow the picture of what was actually before the court and can hold that the ruling made requires to be understood as they restricted. In the extreme form this results in what is known as expressly “confining the case to its particular facts.” This rule hold only of redheaded Walpoles in pale magenta Buick cars. And when you find this said of a past case you know that in effect it has been overruled. Only a convention, a somewhat absurd convenient, prevents flat over-ruling in such instances. It seems to be felt as definitely improper to state that the courts in a prior case was wrong, particularly so if that case was in the same court which is speaking now. It seems to be felt that this would undermine the dogma, while the rule which the prior court laid down is disemboweled. The execution proceeds with due respect, with mandarin courtesy. 8Activity 5 Examine circumstances that influence confining the case to its particular facts. Now this orthodox view of the authority of precedent-which | shall call the strict view — is but one of two views which seem to me wholly contradictory to each other. It is in practice the dogma which is applied to unwelcome precedents. It is the recognized, legitimate, honourable technique for whittling precedents away, for making the lawyer, in his argument, and the court, in its decision, free of them. Itis a surgeon's knife... When you turn to the actual operations of the courts, or, indeed, to the arguments of lawyers, you will find a totally different view of precedent at work beside this first one. That | shall call, to give it a name, the loose view of precedent. That is the view that a court has decided, and decided authoritatively, any point or all points on which it chose to rest a case, or on which it chose, after due argument to pass. No matter how broad the statement, no matter how unnecessary on the facts or the procedural issues, if that was the rule the court laid down, then that the court had held. Indeed, this view carried over often into dicta, and even into dicta which are grandly obiter. In its extreme form this results in thinking and arguing exclusively from language that-is found in past opinions, and in citing and working with that language wholly without reference to the facts of the case which called the language forth. Now it is obvious that this is a device not for cutting past opinions away from judges’ feet, but for using them as a spring-board when they are found convenient. This is a device for capitalizing welcome precedents. And both the lawyers and judges use it so. And judged by the practice of the most respected 9courts of ordinary stature, this doctrine of precedent is like the other, recognized, legitimate, honourable. What | wish to sink deep in your minds about the doctrine of precedent, therefore, is that it is two-headed. It is jaunts-faced. That it is not one doctrine, nor one line of doctrine, but two, and two which, applied at the same time of the same pre-tine for getting rid of precedents deemed troublesome and one doctrine for making use of precedents that seem helpful. That these two doctrines exist side by side. That the same lawyer in the same brief, the same judge in the same opinion, may be using the one doctrine, the technically strict ‘one, to cut down half the older cases that he deals with, and using the other doctrine, the loose one, for building with the other hald. Until you realize this you do not see how it is possible for law to change and to develop, and yet to stand on the past. You do not see how it is possible to avoid the past mistakes of courts, and yet to make use of every happy insight for which a judge in writing may have found expression... ‘Activity 6 Argue for and against the doctrine of precedent being two-headed. Nor, until you see this double aspect of the doctrine-in-action, do you appreciate how little, in detail, you can predict out of the rules alone; how much you must turn, for purposes of prediction, other reactions of the judges to the facts and to the life around them... Applying this two-faced doctrine of precedent to your work in a case class you get, it seems to me, some such result as this. You read each case from the angle of its maximum value as a precedent of the first water. You will recall that | 80recommended taking down the ratio decidendi in substantially the court's own word. You see now what | had in mind. On the other hand, you will read each case for its minimum value a precedent, to set against the maximum. In doing this you have your eyes out for the narrow issue in the case, the narrow the better. The first question is, how much can this fairly be made to stand for by a later court to whom the precedent is welcome: You may well add — though this will be slightly flawed authority — the dicta which appear to have been well considered. The second question, is how much is there in this case that cannot be got around, even by a later court that wishes to avoid it? ‘What are the implications which a how novice is likely to experience in the course of applying two-faced doctrine of precedent in a law suit? You have now the tools for arguing from that case a counsel on either side of a new case. You tum then to the problem of prediction. Which view will this same court, on a later course on slightly different facts, take: will it choose the narrow or the loose: Which use will be made of this case by one of the other course whose opinions are before you? Here you will call to your aid the matter of attitude that | have been discussing. Here you will use all that you know of individual judges, or of the trends in specific courts, or, indeed, of the turned n the lien of the business, or in the situation, or in the times at large — in anything which you may expect to become apparent and important to the court in later cases. But always and always, you will bear in mind that each precedent has not one value, but two, and that the two are wide apart, and that whichever value, a later court assigns to it, such assignment will be respectable, traditionally sound, dogmatically correct. Above all, as you turn this information to your own training you will, | hope, come to see that in most doubtful cases the precedents must speak ambiguously until the court has made up its mind whether each one of them is welcome or unwelcome. And that the job of persuasion which falls upon you will call, therefore not only for providing a technical ladder to reach on authority the result that you contend for, but even more, if you are to have your 81use of precedents made as you propose it, the job calls for you, on the facts, to persuade the court your case is sound. People — and they are curiously many - who think that precedent produces or ever did produce a certainty that did not involve matters of judgment and of persuasion, or who think that what | have described involved improper ‘equivocation by the courts or departure from the court-ways of some golden age- such people simply do not know our system of precedent in which they live. Activity 7 Why do you think prediction in a legal proceeding is considered a problem? Topic 2: Oliphant, A Return to “Stare Decisis” “Stare Decisis” asserts not one thing but two. For one thing, it asserts that prior decisions are to be followed, not disregarded. But it also asserts that we are to follow the prior decisions and not something else. Oliphant (1928) “Stare Decisis” ‘A Return to “Stare Decisis” American Bar Association Journal 71-73, 159 pp 48- 51 The First Meaning of the Doctrine, Most discussions, of the doctrine of stare decisis have emphasized the first of these two assertions. In those we are told of the advantages and disadvantages of the doctrine. It has been pointed out how, on the one hand, it makes the law applicable to future transactions certain and the future decisions of judges predictable; and again, how it gives us justice according to law and not according to the whims of men. On the other had, it has been shown that to follow it gives us a measure of inflexibility in our law, resistingnecessary choice between conflicting advantages which its acceptance or rejection involves. The vigor of this branch of the ancient doctrine has been weakened but little. Sometimes in the cases of being followed. This while aspect of the matter is mentioned here only to be set to one side. ‘The Second Meaning of the Doctrine... There seems to have been little critical study of this phase of the doctrine, of just what it is in prior decisions which is to be followed. General statements that the decision is to be looked for, that dicta are of slight weight and offer no certain guide can be turned to at many places in the books and are familiar to all. Students beginning their law study are told these things in a general way and then are left to an apprenticeship among the cases to discover largely for themselves their fuller meaning. Yet this matter is the one most vital and difficult factor conditioning the soundness of their scholarship. It is because the word decision may mean any one of many that it is perilous to leave the matter thus unarticulated. Activity Compare the meanings of the doctrine of Oliphant, a return to “Stare decisis”. Topic 3: What Does the Case Decide? In the first place, a court, in deciding a case, may throw out a statement as to how it would decide some other case. Now if that statement of another case which as narrow and specific as the actual case before the court, it is easily recognized as dictum and given its proper weight as such. In the second place the court may throw out a border statement, covering a whole group of cases... But so long as that statement does not cover the case before the court, it is readily recognized as being not a decision, much less the decision of the case. It is dictum, so labeled and appraised, But in the third place, a court may make a statement broad enough to dispose of the case in hand as well as to cover a few 83‘or many other states of fact. Statements of this third sort may occur a number of fact situations ranging from one other to legion. Such a statement is sometimes called the decision of the case. Thereby the whole ambiguity of that word is introduced and the whole difficulty presented, If a more careful usage limits the word decision to the action taken by the court in the specific case before it, i.e, to naked judgement or order entered, the difficulty is not met; it is merely shifted. Stare decisis thus understood becomes useless for no decision in that limited sense can ever be followed. No identical case can arise. All other cases will differ in some circumstance — in time, if in no other, and most of them will have differences which are not trivial. Decision in the sense meant in stare decisis must, therefore, refer to a proposition of law covering a group of fact situations ... as a minimum, the fact situation of the instant case and at lest one other. To bring together into one class even this minimum of two fact situations however similar they may be, always has required and always will require an abstraction. If Paul and Peter are to be thought of together at all, they must both be apostles or be thought of as having some other attribute in common. Classification is abstraction. An element or elements common to the two fact situations put into one class must be drawn out form each to become the content of the category and the subject of the proposition of law which is thus applied to the two cases. + Activity 1 Examine intricacies involved in deciding the case.But such a grouping may include multitudes of fact situations so long as a single attribute common to them all can be found. Between these two extremes lies a gradation of groups of fact situations each with its corresponding proposition of law, ranging from a grouping subtending but two situations to those covering hosts of them. This series of groupings of fact situations gives us a parallel series of corresponding propositions of law, each more and more generalized as we receded farther form the instant state of facts and include more and more fact situations in the successive groups. It is a mounting and widening structure, each proposition including all that has gone before and becoming more generally by embracing new states of fact. For example, A's father induces her not to marry B as she promised to do. Ona holding that the father is not liable to B for so doing, a gradation of widening propositions can be built, a very few of which are: Fathers are privileged to induce daughters to break promises to marry. Parents are so privileged Parents are so privileged as to both daughters and sons. Ss made by their children All persons are so privileged as to all promises made by anyone All persons are so privileged as to promi - rR eR There can be erected upon the action taken by a court in any case such as gradation of generalizations and this is commonly done in the opinion. Sometimes it is built up to dizzy heights by the itself and at times, by law teachers and writers, it is reared to those lofty summits of the-absolute and the infinite. Where on that gradation of propositions are we to take out stand and say “This proposition is the decision of this case within the meaning of the doctrine of stare decisis?” Can a proposition of law this third type ever become so broad that, as to any of the cases it would cover, it is mere dictum? 85Activity 2 A question of Double Difficulty Topic 4: A Question of Double Difficulty. That would be difficult enough if it ended there. But just as one and the same apple can be thrown into any one of many groups of barrels according to its size, colour, shape, etc., so also there stretched up and away from every single case in the books, not one possible gradation of widening generalizations, but many multitudes of radii shoot out from it, each pair enclosing one of an indefinite number of these gradations of broader and broader generalizations. For example , a contract for wages contains a stipulations that it shall be non- assignable by the employee. A court holds that the labourer can assign anyway and that his assignee can sue the employer for the wages regardless of the stipulation. This holding can serve as the apex of many triangles of generalizations. At the base of one will be a broad generalization treating the claim as property and asserting the alienability of property; at the base of another will be an equally broad generalization having to do with contractual stipulations opposed to public policy and the base of a third will be a similarly wide generalization having to do with liquidation of claims in the labor market. Others could be enumerated and other cases similarly analyzed. That is not needed, for we all know of at least one appearing in the case books of more than one subject upon which securely rests more than inverted pyramid of favourite theory.A student is told to seek the “doctrine” or “principle” of a case, but which of its welter of stairs he ascend and how high up shall he go? Is there some one step on some one stair which is the decision of the case within the meaning of the mandate stare decisis? That is the double difficulty. Each precedent considered by a judge and each case studied by a student rests at the center of a vast and empty stadium. The angle and distance form which that case is to be viewed involved the choice of a seat. Which shall be chosen? Neither judge nor student can escape the fact that he can and must choose. To realize how wide the possibilities and significant the consequences of that choice are is elementary to an understanding of stare decisis. To ask whether there exists a coercion of some logic to make that choice are is elementary to an understanding of stare decisis. To ask whether there exists a coercion of some logic to make that choice either inevitable or beneficent, searches the significance of stare decisis in judicial government and the soundness of scholarship in law. This question is real and insistent. It is one which should be asked explicitly and faced squarely (Cardozo. The Nature of the Judicial Process. 1921 as quoted in Auerbach, et al, The Legal Process. Supra pp 365-371). Activity 5 Why js it necessary to search the significance of stare decisis in judicial government and the soundness of scholarship in how? Before we can determine the proportions of a blend, we must know the ingredients to be blended. Out first inquiry should therefore be:- Where does the judge find the law which he embodies in his judgement? There are times when the source is obvious. The rule that fits the case may be supplied by the constitution or by statute. If that is so, the judge looks no further. The correspondence, ascertained, his duty is to obey. The constitution, overrides the law of judges. In this sense, judge-made law is secondary and subordinate to the law that is made by legislators......We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case. He is the “living oracle of the law” in Blackstone's vivid phrase. Looking at Sir Oracle in action, viewing his work in the dry light of realism, how does he set about his task? Acti Examine the nature and hierarchy of various forms of law that the judge utilizes in his/her judgement. The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. | do not mean that precedents are ultimate sources of the law, supplying the sole equipment that is needed for the legal armoury, the sole tools, to borrow Maitland's phrase, “in the Legal smithy.” Back of precedents are the basic judicial conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in tum. None the less, in a system so highly developed as our own, precedents have so covered the ground that they fix the point of departure from which the labour of the judge begins. Almost invariably, his first step is to examine and compare them. If they are plain and to the point, there may be need of nothing more. Stare decisis is at least everyday working rule of our law. | shall have something to say later about the propriety of relaxing the rule in exceptional conditions. But unless those conditions are present, the work of deciding cases in accordance with precedents that plainly fit them is a process similar in its nature to that of deciding cases in accordance with @ statute. It is a process of search, comparison and little more. Some judges seldom get beyond that process in any case. Their notion of their duty is to match the colours of the case at hand against the colours of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule. But, of course, no system of living law can be evolved by such a process, and no judge of high court, worthy of his office, views the function of his 88place so narrowly. if that were all there was to our calling, there would be little of intellectual interest about it. The man who had the best card index of the cases would also be the wisest judge. It is when the colors do not match, when the references in the index fail, when there is no decisive precedent that the serious business of the judge begins. He must then fusion law for the litigants before him. In fashioning it for the, he will be fashioning it for others... The sentence of today will make the right and wrong of tomorrow. If the judge is to pronounce it wisely, some principles of selection there must be to guide him among all the potential judgments that compete for recognition. Activity 7 Qualify the understanding that the first step for a judge in making a judicial decision is to examine and compare precedents. In the life of the mind as in life elsewhere, there is a tendency toward the reproduction of kind. Every judgment has a generative power. It begets in its ‘own image. Every precedent, in the words of Redlich, has a “directive force for future cases of the same of similar nature”. Until the sentence was pronounced, it was yet in equilibrium. Its form and content were uncertain. Any one of many principles might lay hold of it and shape it. Once declared, it is a new stock of descent. It is charged with vital power. It is the source from which new principles or norms may spring to shape sentences thereafter. If we seek the psychological basis of this tendency, we shall find it, | suppose, in habit. Whatever its psychological basis, it is one of the living forces of our law. Not all the progeny of principles begotten of a judgment survive, however, to maturity. Those that cannot prove their worth and strength by the test of experience, are sacrificed mercilessly and thrown into the void. The common law does not work from pre- established truths of universal and inflexible validity to conclusions derived from them deductively. Its method is inductive, and it draws its generalizations from particulars. The process has been admirably stated by Munrow Smith: “In their effort to give to the social sense of justice articulate expression in rules and inprinciples, the method of the lawgiving experts has always been experimental. The rules and principles of case law have never been treated as ial truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to work injustice, it will eventually be reformulated. The principles themselves are continually retested; for if the rules derived from a principle do not work well, the principle itself must ultimately be re-examined.” Activities 1. Expand on the following (a) The method of the law giving experts has always been experimental. (o) The attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible 2. What conditions would necessitate ultimate re-examination of the principle? The way in which this process of retesting and reformulating works, may be followed in an example. Fifty years ago, | think it would have been stated as a general principle that A. may conduct his business as he pleases, even though the purpose is to cause loss to B., unless the act involved the creation of a nuisance. Spite fences were the stock illustration, and the exemption from liability in such circumstances was supposed to illustrate not the exception, but the rule. Such a rule may have been an adequate working principle to regulate the relations between individuals or classes in a simple or homogenous 90community. With the growing complexity of social relations, its inadequacy was revealed. As particular controversies multiplied and the attempt was made to test them by the old principle, it was found that there was something wrong in the results, and this led to a reformation of the principle itself. Today, most judges are inclined to say that what was once thought to be the exception is the rule, and what was the rule is the exception. A. may never do anything in his business for the purpose of injuring another without reasonable and just excuse. There has been a new generalization which, applied to new particulars, yields results more in harmony with past particulars, and, what is still more important, more consistent with the social welfare. This work of modification is gradual. It goes on inch by inch. Its effects must be measured, by decades and even centuries. ‘Those measured, they are seen to have behind them the power and the pressure of the moving glacier. In this perpetual flux, the problem which confronts the judge is in reality a two- fold one: he must first extract from the precedents the underlying principle, the ratio decidendi; he must then determine the path or direction along which the Principle is to move and develop, if itis not to wither and die... Activity 8 Provide thorough explanation that in the contemporary world must judges are inclined to say that what was once thought to be the exception is the rule and what was the rule is the exception. The directive force of a principle may be exerted along the line of logical progression; this | will call the rule of analogy or the method of philosophy; along the line of historical development; this | will call the method of evolution; along the line of the customs of the community; this | will call the method of tradition; along the lines of justice, morals and social welfare, the mores of the day; and this | will call the method of sociology. 1Activity 9 Consider various lines upon which the directive force of a principle may be exerted. I have put first among the principles of selection to guide our choice of paths, the rule of analogy or the method of philosophy. In putting it first, | do not mean to rate it as most important. On the contrary, itis often sacrificed to others. | have put it first because it has, | think, a certain presumption in its favor. Given a mass of particulars, a congeries of judgements on related topics, the principle that unifies and rationalizes, a congeries of judgments on related topics, the principle that unifies and rationalizes them has a tendency, and a legitimate one, to project and extend itself to new cases within the ‘limits of its capacity to unify and rationalize. It has the primacy that comes from natural and orderly and logical succession. Homage is due to it over every competing principle that is unable by appeal to history or tradition or policy or justice to make out a better right. All sorts of deflecting forces may appear to contest its sway and absorb its power. At least, it is the heir presumptive. A pretender to the title will have to fight his way... Activity 10 The rule of analogy or the method of philosophy although not ranked first, but has a certain presumption in its favour. Why this favour? The directive force of logic does not always exert itself, however, along a single and unobstructed path. One principle or precedent, pushed to the limit of its logic, may point to one conclusion: another principle or precedent, followed with like logic, may point with equal certainty to another. In this conflict, we must choose between the two paths, selecting one or other, or perhaps striking out upon a third, which will be the resultant of the two forces in combination, or will represent the mean between extremes. Let me take as an illustration of such conflict the famous case of Riggs V. Palmer, 115 N.Y. 506. That case decided 2that a legatee who had murdered his testator would not be permitted by a court of equity to enjoy the benefits of the will, Conflicting principles were there on competition for the mastery. One of them prevailed, and vanquished alll the others, there was the principle of the biding force of a will disposing of the estate of a testator in conformity with law. That principle, pushed to the limit of its logic, seemed to uphold the title of the murderer. There was the principle that civil courts may not add to the pains and penalties of crimes. That, pushed to the limit of its logic, seemed again to uphold his tile. But over against these was another principle, of greater generality, its roots deeply fastened in universal sentiments of justice, the Principle that no man should profit from his own inequity or take advantage of his own wrong. The logic of this principle prevailed over the logic of the others. | say its logic prevailed. The thing which really interests us, however, is why and how the choice was made between one logic and another. In this instance, the reason is not obscure. One path was followed, another closed, because of the conviction in the judicial mind that the one selected led to justice. Analogies and precedents and the principles behind them were brought together as rivals for precedence; in the end, the principle that was thought to be most fundamental, to represent the large and deeper social interests, put its competitors to flight. | am not greatly concerned about the particular formula through which justice was attained. Consistency was preserved, logic received its tribute, by holding that the legal title passed, but that it was subjected to a constructive trust. A constructive trust is nothing but “The formula through which the conscience of equity finds expression”. Property is acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest. Equity, to express its disapproval of his conduct, converts him into a trustee. Such formulas are merely the remedial devices by which a result conceived of as right and just is made to square with principle and with the symmetry of the legal system. What concerns me now is not the creative energy, which brings such devices into play. The murderer lost the legacy for which the murder was committed because the social interest served by refusing to permit the criminal to profit by his crime is greater than that 93served by the preservation and enforcement of legal rights of ownership. My illustration, indeed, has brought me ahead of my story. The judicial process is there is microcosm. We go forward with out logic, with our analogies, with out philosophies, till we reach a certain point. At first, we have no trouble with the paths; they follow the same liens. They begin to diverge, and must make a choice between them. History or custom or social utility or some compelling sentiment of justice or sometimes perhaps a semi-intuitive apprehension of the pervading spirit of our law, must come to the rescue of the anxious judge, and tell him where to go.. Activity 11 Examine the place of the directive force of logic, although it does not always extent itself along a single and unobstructed path. Logic and history and custom have their place. We will shape the law to conform to them when we may; but only within bounds. The end which the law serves will dominate them alll... | mean that when (judges) are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance. Our survey of judicial methods teaches us; | think, the lesson that the whole subject-matter of jurisprudence is more plastic, more malleable, the moulds less definitively cast, the bounds of right and wrong less preordained and constant, than most of us, without.the aid of some such analysis, have been accustomed to believe. We like to picture to ourselves the field of the law as accurately mapped and plotted. We draw our little lines, and they are hardly down before we blur them. As in time and space, so here. Divisions are working hypotheses, adopted for convenience. We are tending more and litigations the description of the description of the landscape must be studied to see whether vision has been obstructed, whether something has been done or omitted to put the traveler off his guard. Often these cases and others like them provoke difference of opinion among judges. Jurisprudence remains untouched, however, regardless of the 94outcome. Finally there remains a percentage, not large indeed, and yet not so. small as to be negligible, where a decision one way or the other, will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law. These are the cases where the creative element in the judicial process finds its opportunity and power, it is with these cases that | have chiefly concerned myseff in all that I have said to you. In a sense it is true of many of them that they might be decided either way. By that | mean that reasons plausible and fairly persuasive might be found for one conclusion as for another. Here come into play that balancing of judgment, that testing and sorting of considerations of analogy and logic and utility and fairness, which | have been trying to describe. Here it is that the judges assume the function of a lawgiver. | was much troubled in spirit, in my first years upon the bench to find how trackles was the ocean on which | had embarked. | sought for certainty. | was oppressed and disheartened when | found that the quest for it was futile. | was trying to reach land, the solid land of fixed and settled rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own vacillating mind and conscience. | found with the voyagers in Browning’s ‘Paracelsus’ that “the real heaven was always beyond’. As the years have gone by, and as | have reflected more and more upon the nature of the judicial process, | have become reconciled to the uncertainty, because | have grown to see it as inevitable. | have grown to see that the process in its highest reached is not discovery, but creation; and that the travail of mind, the pangs of death and the pangs of birth, in which principles that have served their day expire, and new principles are born. Activity 12 Reconcile with the subsequent statement: the nature of the judicial process in its highest reach is not discovery but creation. Frank, courts on trial, (Princeton 1959) (kb 85-fra)) pages 266-279.Here we come to the problem of following precedents. “A precedent,” as its name discloses, is what has preceded, what has been done in the past. Ought a court follow one of its precedents which states a legal rule, even if, on reconsideration, it thinks that the rule should not have been so stated, or should now be revised? The conventional answer is generally yes. This answer is known as the doctrine of precedents. Sometimes it is labeled by the Latin words stare decisis, which come form the maxim, stare decisis et non quieta movere. meaning, “Adhere to the decisions and do not unsettle things which are established.” If that were unvarying practice, the judges would resemble a kind of caterpillar called “processional” because “the larvae have the instinct of moving in single file ... touching one another head to tail. The experiment has been made of so directing from caterpillar of such procession that its head came to touch the tail of the last one, a closed ring being thus formed. For a whole week these caterpillars continued to walk round and round, after one another’. For, if actually and rigorously adopted, the precedent doctrine would mean this: No matter how absurd or unwise or unjust a legal rule once announced by a court, may turn out to be that court must not, cannot properly, change it, but must go on endlessly applying it until the legislature, by a statute, intervenes. As the legislature often does not intervene, the precedent doctrine, as avowed by some of the courts and generally praised by the lawyers, has led to severe criticism of the legal profession by many non-lawyers. “It is a maxim among lawyers’. Wrote Swift, “that whatever has been done before may legally’be done again, and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they use authorities to justify iniquitous opinions, and the judges never fail to direct accordingly.” In like vein, Voltaire referred to lawyers as “the conservators of ancient barbarous usages”. 96Activity 13, Why do you think in certain instances lawyers can be likened to conservators of ancient barbarous usages? If you listen to what many judges have said, and disregard what they have done, you will probably feel that such structures are justified. For judges, in y be precluded. Through following precedents, courts achieve uniformity, continuity, objectivity, and thereby equality. Via the courts’ respect for precedents, says Salmond, the “law” is rendered impartial. “It has no respect of persons. Just or unjust, wise or foolish, it is the same for all... In the application and enforcement of a fixed and predetermined rule, alike for all and not made for or regarding his case alone, a man will willingly acquiesce”. That is indeed a powerful argument. “Equality before the law” is a properly cherished principle. Yet it ought not to be pushed to ridiculous limits. Merely because a court was outrageously unfair to Mr. Simple in 1900 is a poor reason for being equally unfair to Mr. Timid in 1947. Thus to perpetrate a markedly unjust rule seems a queer way of doing justice. (1) A more powerful argument for stare decisis rests on the need for stability. Only if rules are certain and stable, it is said, can men conduct their affairs with safety. This argument assumes that most men do conduct their affairs relying on certain legal rules. However, one of America's greatest lawyers, Joh Chipman Gray, expressed skepticism on that score. He had in mind that, all too often, a man does not know his legal rights until after a decision in a law-suit involving those rights, that those rights are thus not knowable until decision, and that the decision is therefore retroactive... (2) Still another argument for stare decisis is that, without it the “beauty and symmetry” of the legal system would be destroyed without 7(3) influence, was assigned by a famous English judge, Lord Ellenborough: “I” he said, “this rule were to be changed, a lawyer who was weil stored with these rules would not better than any other Man without them". in other words, the judge was taking care of his brothers at the. bar, the lawyers” guild or iabor union, Stl another argument is the convenience of the Judges. When they have grown accustomed to applying a rule, they find is irksome to Tesuivet Sait halite | suspect Cel scceething of ther acrt is what Judges have in the back of their minds when they say that, regardless Of the hardship which ensures, bad rules must not be changed else “the jaw ceases to be a system". For a settled system is easier for Judges to operate than a set of variable and mutable rules. Let me now, instead of justifying wy to explain the precedent system First and foremost is habit. Every institution — a telephone company, an athletic club, a debating society - builds up a habit patterns, Precedents. it could not get on without them. Routines save time, 'n more general terns, some acceptance of precedents stoms from inevitable inertia, In all aspects of fife, indlvidual or social, there is resistance to change. Men have a feeling of pleasure in identification with customary ways. There seem to be deep-lying physiological and Psychological bases for hostility to change... Partly such devotion to PASt ways involves a sort of ancestor-worship, veneration for one's Predecessors is often given as a reason for sticking to precedents Partly it involves pride: Judges, like doctors and others, are reluctant ‘© admit they made mistakes. Then, too, there is plain old-fashioned animal laziness. Ws nuisance to revise what you have once settiod, Out of such laziness comes what Holmes called “one of the 98 “@misfortunes of the law," that “ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis”, Activity 14 Write arguments tor and against these notions: a} Routines save time, b} Plain old-fashioned animal laziness among judges. But, | repeat don’t be too harsh in your criticism of the judges. ‘if’, says Walton Hamition, “businessmen, university faculties, baseball players or debutantes were forced to set down the ... reasons for the decisions which make up their streams of conduct,” the result “would resembie the” judicial process. George, writing of the “scientist in action,” says that man is a “patterning animal’ with a dislike of the tension he experiences when something is seen as a “uncompleted pattern” There is in ail human beings a desire to “tidy things up,” to put cains in a row or books on shelves. The scientist pater, to complete an over-neat theory.. often impatient to reach a The precedent system, as | have thus far described it, seems to cause much injustice and to impede desirable social change. Yet its bark is worse than its bite. it does not really bite when a court follows a precedent Which it considers just or wise; neither just nor unjust, wise nor unwise; or when a court consults and heeds its own or other judges’ earlier opinions because those opinions contain sagacious solutions of difficult problems. As | suggested several years ago, “To find ‘authority’ for a position which they (have already) reached, is pleasing to all men. Precedents often aid thinking; often, too, they allay inner doubts, and help, as rationalizations, to persuade others". The precedent as undesirable, nevertheless refuses to deviate from it. 99.(a) Examine the advice that you should not be too harsh in the criticism of the judges. (b) Why do you think judges are reluctant to admit their mistakes? How do you account for this reluctancy? There are such cases, without question. But not so many as superficial observers may think. For the judges know how to get rid of an obnoxious judge-made rule. In 1810, when our Supreme Court was still a young institution, it explicitly over-ruled one of its decisions made two years before. And, ever since, that Court has recurrently indulged in that practice. However, out of deference to the precedent doctrine, direct repudiation is not frequently utilized. But judges have other ways of sterilizing an obnoxious rule. (1) The “Distinguishing” or “Precise Question” Device. ‘One such “out” is this: Courts often say that what they decided in some earlier cases must be limited to the “precise” question? Since the rule announced by a court is, to use Austin’s phrase. “implicated with the peculiarities of the specific case,” it follows that seldom, if ever, can it be said that one case is so completely identical with another that there is no possible ground for differentiation, that one case, without any inconvenience doubt, “runs upon all four feet” with another. To apply the rule laid down in one case to the facts of another case therefore involves “reasoning by analogy,” i.e. reasoning that the cases are sufficiently alike so that differences may be ignored. Now the courts have held that, in reasoning by analogy, great care must be exercised that the analogy shall “close, true and perfect, “and that an analogy is rendered inapplicable “by the intervention of material circumstances, modifying the case, and bringing it under the application of a different 100significant point is that able lawyers often disagree concerning the portions of opinions which are dicta, What one judge calls the “true rule” employed in a decision, another judge may describe as “dictum” (2) Verbal Stability A second way of getting around stare dicisis is to pretend to preserve an old rule by retaining it verbally, while so stuffing the words of the old rule with new meanings that, in practical effect, it becomes a new rule. Many lawyers and judges in the past have resorted to that method, striving “to cover up the transformation, to deny the4 reality of change, to conceal the truth of adaptation (to new circumstances) behind a verbal disguise of fixity...” (3) The “Ratio Decidendi” Device. There is another device ~ which seems inconsistent with “precise ~ fact” device - often said to be employed in the technique of distinguishing cases. The courts often say that the authoritative part of a decision is neither what was decided nor the rule on which the court based its decision, but is something (iying back of both the decision and the rule) called the ratio decidendi, - the “right principle upon which the case was decided. According to this notion, it is the decision that are binding. A much respected English judge, Jessel, phrased it thus: “The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided; but it is not sufficient that the case should have been decided on a principle if that principle itself is not a right principle, or one not applicable to the case; and it is for a subsequentrule of law.” The courts maintain that they are at liberty to choose between “competing analogies” when such “modifying circumstances" intervene, “minute differences in the circumstances of two cases,” said a well-known English judge, “will prevent any argument being deduced from one to the other’. Act ty 16 What are your points of view regarding the functioning of Distinguishing or precise question Device? Thence arising the interesting lawyer's technique of “distinguishing cases”. There are many valuable implements available for that purpose. The most useful is the maxim that it is the decision in a case, and not the language of the opinion of the court, which makes the precedent. ‘it is a maxim not to be disregarded,” said Chief Justice Marshall, “ that general expressions in every opinion are to be taken in connection with the case in ought not to control the judgment in a subsequent suit when the very point is presented for decision’. An opinion are to be taken in connection with the in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision”. An opinion, the courts remark, often “outruns the decision’. The United states Supreme Court has stated an “opinion must be read as a whole in view of the facts on which it was based. The facts are the foundation of the entire structure, which cannot with safety be used without reference to the facts...” For the purposes of “sterilizing earlier decisions, there is available, too much learning about the distinction between a decision and a “dictum”. A “dictum” is defined as “and expression of opinion in regard to some to some point or rule of law, made by a judge in the court’. Such an expression is not to be considered as creating a precedent. But the 101judge to say whether or not it is a right principle, and, if not, he may himself lay down the true principle”. ‘As depicted by Jessel and some other legal writers, this idea has a delightful vagueness which makes it most helpful in “sterilizing an awkward precedent. For, if those writers are correct, a court need pay scant heed (a) to the decision of the court in any given previous case; or (b) to what the judges who decided a previous case stated in their opinion as the “rule “of that case; or (c) to what the judges who decided a previous case stated in their opinion as the “principle” or as the ratio decidendi of that case. Activity 18 What are the legal implications of verbal stability and the “ratio decidendi” devices for sterilizing obnoxious rules in the judicial system? Activities Some Questions on the Readings 1. Of what value as precedent are the following portions of a case, and why: a) The facts and the ultimate holding? If the facts, what facts? b) The statement of the holding c) The judge's stated reasons for the holding d) Any unstated reasons for the holding. 103