DOCTRINE OF PRECEDENT

Common law legal systems gives past decided cases a special status – some are binding, others may be given great weight.  Stare decisis = court bound by higher court; ratio decidendi.

Why one court is higher than another is simple – its higher if part of appellate hierarchy in which you can appeal.  High Court says single courts should give binding force for federal statute for decision in higher court.  Hudges naturally say they’ll give great weight to decision of fellow judges, e.g. case before Supreme Court single judge – if same issues dealt with by single judge in Supreme Court then generally that will be followed (unless can find something wrong). 

Two reasons to follow doctrine of precedent:

1. We should do what will maximise the best outcomes or consequences from the possible alternative causes of action.  Needs some degree of consistency in legal decision making – i.e. people can expect consistency on what rules apply.  Some areas must have absolute consistency e.g. wills, deeds, commercial law – but others it’s not so much e.g. law protecting personal integrity, law forbidding e.g. trespass to person – its not so much a set of rules telling you how far you can go without breaching the law – these sorts of law are protecting our liberty and autonomy and if found loophole would shut them down.  So there’s some areas of law requiring key importance on consistency and allowing people to be able to conduct their lives in way can fashion their future.  Other areas of law protect people’s rights where consistency not so important bur rather coming up with the right answer every time dispute comes before the court. 

(Corresponds with approach in moral theory)
They look to some fashion to have the future operate better than it would if emphasis wasn’t on consistency.

2. Another area not looking so much at outcome has been described as the justification from formal justice – gave example – family this morning – son and wife argue re replacing computer – son says you gave benefit to older kid so I should get the same benefit - no argument about how its going to improve the world – not looking at consequences – it was based on principle that its unfair if he doesn’t get the same treatment as the other when similar circumstances occur.  Notion of equality of treatment in equal circumstances is called informal justice because it is not directed to set of conditions it just says that when conditions are equal, equal treatment will follow.  For example marks awarded for courses supposed be based on objective standard and anyone who reaches it gets certain mark and if felt not given mark the objective standard specified you’d think you were treated unfairly. But in that account haven’t set what the objective standard is – that standard could be thought of at different levels etc.  Substantive theory of what would be just mark – formal justice just looks at what the criteria might be and once they are made then everyone supposedly gets same treatment. 

Doctrine of precedent follows formal justice.

They are the two justifications for precedent.

Precedent respects formal justice, and that by providing system for predictable rules it allows us to arrive benefits from having predictable set of rules and principles.  But this still leaves open the way it works.  When we look at past case it’s not all parts of it that forms part of the precedent.  What is binding from the case is the ratio.  How do you find the ratio?  (Sometimes the judge helps make it a little easier)  In the Mabo (2) case at the beginning of nearly 300 pages of  judgement, CJ Mason and McHugh J said about what some could say is the central conclusion of the case – kind of looks like a ratio.  Birch says it’s odd – one student said read the whole judgement and try to work out what the judge way saying – not entirely helpful, doesn’t tell us much beyond the concept of ratio itself. 

Asked isn’t it odd that been studying law this long and most of that is studying past cases that we don’t know how to get the ratio out?!  Because there’s no method for getting the ratio out – we make it up.

There is only one method that was suggested by jurist called Wambaugh – his method was – “think tentatively of that rule that might be the ratio of the case, then take the negative (opposite view) of it and if that changes the outcome of the decision then you’ve identified the ratio.  Birch gives e.g. of that method – it kind of works but not as well as it should – e.g. case where 3 men were charged with stealing oysters, property of royal national park, they were convicted by magistrate and had taken case to supreme court attacking the conviction – their argument was simple – oysters are animals – at that time in common law animals were 2 classes – domestic which were property (e.g. dog, chooks) and wild animals which couldn’t be objects of property e.g. wild birds that fly through or even nest in your garden – if someone took them they haven’t stolen your property.  They argued oysters wild animals, therefore not objects of property and so therefore couldn’t commit larceny if they took them.  Court said yes at common law there was no right of property and therefore no larceny. 

So what is the ratio?  Example of Wambaugh’s method:

The ratio is “those oysters are wild animals” – so what’s the negative – if the only other thing they could be is domestic animals, if so they would be objects of property and therefore the charge would hold.  Accordingly on Wambaugh’s method then ‘oysters are wild animals’ would be the ratio.  Obviously that’s not the ratio – shows that his method doesn’t always work!

Grant v Downs (case re legal privilege) – ratio to establish document had legal privilege must establish it brought into existence for sole purpose of legal advice – overruled in Esso that it’s the dominant purpose test.  If we look at G v D and the sole purpose test – on Wambaugh’s theory – if sole purpose isn't the test then what’s the other test – the dominant purpose test.  If reverse that it has no outcome on the case because any document that satisfied the sole purpose test will naturally satisfy the dominant purpose.  So Wambaugh’s test doesn’t work – it excludes other ratios.
In a case where the ratio isn’t so clear cut it’s difficult e.g. Walton v Maher.  Almost impossible to make sense of what the negative would be and therefore completely unworkable as a test.

So wambaugh’s test doesn’t work!

Nature of Judicial Decisions and form of justification given for judgements

One of the things re reading judgements is that most comply with laws of logic – what logic looks at is the consistency between premises and conclusions.  An argument is a logically valid argument if it’s of special structure that where premise is true the conclusion is guaranteed true.  “Proposition of calculus” – number of formally valid structure of arguments.

Classic form of argument structure:
The two premises:
1. all men are mortal
2. socreates is a man
Therefore conclusion is socrates is mortal.

What this says really is in effect all A’s are B’s – C is an A therefore C is a B because it forms that structures then I know the conclusion is true. The truth has nothing to do with empirical questions – if put in false premises then the conclusion won’t be guarantee true.  Must know the premises are true otherwise formal logic gets you nowhere.  Formal logic is only that if know premises are true that the conclusion would be true.  If using variety of arguments, need to know the premises for each are true.

Logic doesn’t guarantee the truth of our conclusion – it just guarantees consistency b/n premise and conclusion.

Judges write judgement in fashion of formal logic.  Gives e.g. that all persons whose negligence harm another to whom they owed duty of care must pay compensation.  So if defendant's negligence did harm the plaintiff  and owed him duty of care – then the formal logic is that this defendant must compensate this plaintiff.  In this example the first statement can’t be guaranteed as true – but can be deducted that it is e.g. HC decision shows it is true – can derive from law of negligence therefore it is a correct statement of the law of negligence.  But that piece of deductive reasoning presumed two premises – so for formal logic you’d have to prove them etc – can’t just say used deductive reasoning so it’s true.  So the judgement obeys the laws of logic but logic doesn’t guarantee truth of anything, just means haven’t violated law of argumentation.
Joseph Hutchinson article on website – American judge – said when I decide case I don’t soak up all evidence and law and deductively produce conclusion.  He said I have an intuitive hunch develop in mind while hearing evidence and argument – when case is over I see if I can construct formally valid argument that reaches conclusion of the hunch I formed, if it does that’s my judgement (his hunch is informed opinion based on experience etc, not just plucking guesses out of air).

Some jurists say what Hutchinson is saying doesn’t give the game away, just because judges might get hunch about the answer they still have to reach justification – valid argument structure – for the judgement.

Martin Golding and Wasserstrom therefore have each said its like process of science – scientists can get bright idea in any way (e.g. taking drugs, staring into space) etc because they then have to test that idea.  The idea only holds up if proven by the test.  Same with judgement – have to test the hunch and prove it.  It’s rational, the hunch only becomes judgement if passes the test. 

Problem with this lies in part with the problem re the ratio.  Testing scientific theory doesn’t mean dreaming up an argument that reaches the same conclusion – can dream up argument that brings the conclusion you want it to have.  Science has to formulate test that can be tried experimentally, but there’s no world to test our legal theories against.  We just come up with argument that supports the conclusion.  If just dreaming something up it’s simply a test of ingenuity.