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.
1920’s and 30’s were the ‘heyday’ for American realists – along came ones like Karl Llewellyn who warned against merely reading the law from the books – he said law was ‘what officials do about disputes – that ‘mere rules would often not tell us much about decision because they can be construed differently and different rules could be selected from the mass of rules available. He softened his view over time and felt that rules if kept “in their proper bounds” did have a proper role to play.
Judge Jerome Frank
The “most extreme” of the American realists. He criticised Llewellyn and others for “upper courtitis” – said that they were ‘rule sceptics’ but he was a ‘fact sceptic’. In his opinion rules weren’t effective even if very clear on interpretation, because the lower courts were open to find the facts “as it pleases so that a rule will give the decision it wants”. He held that the basis for the court’s decision would be on conscious and subconscious attitudes, beliefs and prejudices peculiar to the parties involved, the witnesses and facts of each case. [p100] He said:
For any particular lay person, the law, with respect to any particular set of fats, is a decision of a court with respect to those facts so far as that decision affects that particular person. Until a court has passed on those facts no law on that subject is yet in existence.
He does say though, that he ‘isn’t intending to give a definition of law suitable for all purposes and that his case is deliberately overstated’.
Realists say that rules aren’t all that matter in the admin of justice (not that a theorist would argue on that) and a positive point is that realists have influenced directing research towards non-ruled governed operations however this wasn’t completely neglected before anyway.
Text says must take the realist view at face value – particularly that of Frank.
Two crucial theses:
Rules by their nature can’t control decisions by courts and other officials.
The overriding function of law is the settlement of disputes.
Court’s standpoint is that there’s a dispute and legal rules are supposed to generally provide the answer. Frank however says that judges and others are deluded in this way. Text says he refers to it as a ‘childish hang-over which is satisfied by a belief that ‘the law’ (a father figure) dictates what is to happen’.
“This must be a delusion” – because decisions are based on “multiplicity of motives operating on the finder of facts which leads him to find suitable facts to fit the rules that will support the decision” – the motives would produce the same decision regardless of the rules meaning that in the interest of truth having an idea that’s there’s law before the decision should be dropped.
Further argument in the text against Frank’s theory is that if legislature’s rules don’t have any determinative effect on disputes, then it must be assumed that the orders of a judge can’t have any determinative effect on later disputes involving the same issue (e.g. enforcing the judgement given) – i.e. if statute wasn’t binding rule of judge X how can judge X’s order be a pre-existing rule for judge y.
How far do you take the realists argument? If one is just a ‘rule sceptic’ then they can be a realist on difficult cases => clear cases governed by the rules, but if the law is uncertain then must abandon the legal reasoning in favour of behaviour prediction -> that’s what in essence it would be.
Couple of further arguments against realism – if rules didn’t matter then why bother to make changes to the rules since judges wouldn’t be applying them anyway. Further how would we know who the officials are, since they are supposed to be appointed according to rules.
Realism sounds extreme – text says it was ‘never intended to be as extreme as it sounds’ – even Llewellyn denied it was meant to be – he said ‘realism is not a philosophy but a technology … what realism was, and is, is a method nothing more’.
Jerome Frank – law of the modern mind – the key writer in American realist movement.
American realist movement – they were principally American lawyers, judges and academics writing in first half of 20C (and end 19C) re the nature of law. one problem with legal analysis was that view that it was quasi logical exercise taking seriously deductive structures they thought took the true nature of law.
If you thought it was just quasi logical exercise, then of course you encouraged to read the CLR’s very intently trying to find ratios and deduce conclusions from them.
Oliver Wendell Holmes – said of the law that it is what judges say it is. Said law is about predicting what judges will do in the future. Your client wants to know how their case will be decided – they don’t care about law reports, just whether they will win or lose. If the best way to predict it was to feed the results of past decisions and come up with some prediction based on case characteristics. Problem with theory that law is pure deduction then can’t take factors into account. Lousy predictive device that didn’t properly capture structure of law.
Criticised mechanical jurisprudence that we make these calculations. Paper rules were the reading of law reports to get your prediction.
The realists had a practitioner oriented view of law – focused on judges deciding cases for lawyer’s perspective. If you advising your client, how do you make use of the law?
Jerome Frank to arguments of others and took them to the extreme – e.g. said yes they use hunches to reach decision but said the mistake Hutchinson made was thinking law would stop or block some answers because couldn’t structure argument to justify. He said that’s wrong – you can construct legal argument that complies with laws of logic to justify anything.
Said law isn’t deductive – while have to obey laws of logic, laws of logic don’t tell what content of premise in any argument will be. Have to apply past ratios but what is the ratio.
Gave e.g. of Donohue v Stevenson – what’s its ratio? No one thing – has a number of ratios depending on which aspect you’re looking at.
Frank said well what is law anyway, case isn’t decided by single rule. In a real case I have multiple laws e.g. re procedure, jurisdiction, time limits, evidence required to win, what inferences may be drawn from certain types of evidence, laws re defences e.g. contributory negligence under CLA etc. It’s unlikely that any real case is decided without having to appeal to dozens/even hundreds of rules. Your hunch might be that plaintiff shouldn’t win, but the case is pointing to their winning – how was the case run, does the evidence support the claim, has an element of the law been overlooked.
Lord Denning – gave the greatest justifications for his hunches – he found strong ground to support claim or develop an exception to what otherwise looked like cast iron. In his autobiography he criticised the judges that said they ok about judgements they thought were unfair etc. He then says that the law is a vast body of concepts and ideas and there can always be an argument constructed that will have as its conclusion the result we know will be the outcome of the case. He said you can always find a legal argument to justify your hunch about what is the fair and just way to find the case.
Denning also spoke about how the common law stood up for the rights of the common man etc – he believed both views at the same time but in reality you can’t in Frank’s mind.
Consequence of realist movement – that you radically altered your focus on what was legally important – focused on judge as the decision maker rather than Llewellyn’s paper rules. As result of the movement people took up study of pattern of decision making etc. Also meant people looked at law in radically different way – no right answer to questions, if didn’t like result ask them to change their way.
Frank – it wasn’t how the law determined outcome of cases (because he thought it didn’t) but asked why people thought the law did so determine it. in answering this question he felt people were looking for a father figure to tell us what to do and that the law filled that position – i.e. psychological issue – said the law didn’t determine cases, so we have to go out to try to find why people deluded themselves that it did. He thought a good judge was one that recognised they were the source of the law and made it up as they went along. He did see the legal system as the system for resolving disputes. He thought the only guide was the judges’ own sense of justice. Holmes was one of leading ones of realist movement – he acknowledged that this is what was going on. Frank wrote an article re Judge Holmes in which he admired Holmes.
Dworkin’s arguments were essentially against the realists.
• The key question still remains – is law indeterminate or are there right answers to the questions.
One problem realists pose is that the practitioner advising client is trying to predict what judges will do.
No help if judge says what is the law on this matter? Can’t say dismissing or accepting the claim because of my own personal views and thoughts on the matter – still need rational reasons that appeal to anyone even handed looking at the judgement that was delivered.
If judge can construct argument to justify any conclusion they like, how do they go about making the judgement?
American realism has powerful arguments but poses dilemma.
• If don’t have determinacy in the law how do we excuse, explain or justify the practice we engage in of the elaborate trial and long legal judgement?