ORIENTATION TO LAW SCHOOL LECTURE: INTRODUCTION TO COMMON LAW LEGAL REASONING- 1990
Alvin Esau, Faculty of Law, University of Manitoba
I. REASONING WITH CASE LAW: ANALOGICAL FACTUAL REASONING
For the moment in a highly simplistic fashion, let’s say that common law case law reasoning is analogical as compared to reasoning with legislation which is deductive.
Now think about any number of situations in everyday life where you reason by using analogies. That is, you have two things or situations or concepts or whatever that are not exactly alike, but you argue that they have similarities, and that due to these similarities your understanding of one can be applied to understand the other. Or in attempting to explain how one situation works, you contrast it to another situation. The one situation is still being used to elucidate the other, but now by way of contrast rather than complementarity.
Much of our reasoning in everyday life involves applying our knowledge of one situation to a new situation. The new situation is interpreted by what we know of the earlier situation. The earlier situation provides a contrast to the new or a complimentary situation.
For example, suppose that my 8-year-old daughter starting grade three comes to me and complains about the rule that she is supposed to be in bed by nine. She says that it is just not fair that her sister, who is 10 years old and starting grade five, gets to stay up till 10 o’clock.
Notice what my younger daughter has done here. She has reasoned by analogy that her sister’s bedtime should also be her own bedtime. We are sisters, we are children in elementary school, we should have the same bedtime.
My response to her is also analogical. I point out that she also has twin brothers who are six years old and starting grade one and they have a bedtime of 8 o’clock, therefore her bedtime of nine is appropriate and should not be shoved up to 10 like that of her sister.
Now notice that reasoning by analogy involves three steps: We might say this is the dance called the analogical three step:
Step number one- we identify one or more past precedents that are the base points or starting points from which we want to reason.
My daughter chose her sister’s bedtime as a base point. I countered with her brother’s bedtimes as a base point and then used both base points to contrast her own bedtime.
In terms of this first step of identifying possible base points for analogies, we need to judge the propriety of any alleged base points. Often reasoning by analogy is faulty because the base points are inappropriate to begin with. Someone tells us that we are comparing apples and oranges as the popular expression goes.
Suppose that my daughter says, “The rain in Spain falls mainly on the plain,” so I can stay up till 10. Well, you will forgive me for scratching my head and saying that I fail to see that the rain in Spain has anything whatsoever to offer as an argument for your bedtime.
Well, she might reply that “Owls stay up at night, so I can stay up till 10.” Well once again, we at least have some connection with waking and sleeping, but I fail to see any propriety whatsoever in using owls as a base point.
However, the base point of her sister is appropriate at least to start the reasoning process. Perhaps another good base point would be if she told me that she took a survey of her grade three class and she discovered that most of her classmates did not have to go to bed till 9:30.
Now in the next weeks we are going to talk about the hierarchy of courts and the various jurisdictions of courts and the formal conventions of precedents that constrain how we deal with this first step in analogical reasoning. But the process is not cut and dried. There is flexibility and uncertainty in the legal reasoning process right from step one as arguments are made about the appropriate base points in any given situation.
If we are looking at past cases in a purely analogical way, (and as I will point out in due course this is misleading because we also attempt to formulate rules from past cases), the second step is that after we have a precedent as a starting point, we compare and contrast the precedent case with the problem case. We identify all the material differences and similarities between the two situations.
Here is where you must be rigorous. You must unpack the fact situations and make sure you identify what is similar and what is dissimilar.
Each situation deals with bedtime. Each deals with one of my children. Each deals with elementary school children. But the ages of the children are different. Each child may have a different energy level. A different pattern of going to bed. A different mood in the morning. A different metabolism. When we look for material differences and similarities, we also must be sensitive to the context. What is the context for the precedent case and the context of our problem case?
Now the final step in the dance. The third step is that we must make a judgment that is not cut and dried and is quite uncertain and unconstrained. We must judge whether the differences are more important than the similarities, or the other way round. If the similarities are more important, then in theory we might follow the precedent case as analogous to the problem case. We say that like cases should be decided alike. If the differences are more important, then we might distinguish the precedent case. We say that the two cases are disanalogous.
In replying to my daughter, I did not follow either the precedent of the older sister nor the precedent of the younger brothers, but rather distinguished those cases on the bases of my second daughter’s age, and made a bedtime appropriate for her.
But what is critical here is to understand that following precedent involves making judgments about the importance of various factors and that judgment is not constrained by the previous precedent itself. The process is not mechanical.
Now let’s apply these three steps in common law legal reasoning by turning to a past hypothetical case.
Applying Past Cases to our Hypothetical Problem
Suppose purely as a matter of our hypothetical that we find a reported case of Sellers v. Dairy before Madam Justice Lex in the Queens Bench of Manitoba. (Usually, you will be looking at appeal court decisions as the most important source of precedent. Trial courts are bound to follow higher court precedent, and many trial court decisions involve disputes over factual matters rather than disputes about the law. Nevertheless, trial judges can make important decisions about the law and these decisions may be published in law reports and be used as precedents in other cases, especially when the higher courts have not spoken.)
Suppose that in her written decision Justice Lex summarizes the facts in the case of Sellers v. Dairy as follows:
One day, Mrs. Sellers, a small dairy operator, decided that she had too many cows and advertised one for sale. Eventually, Mr. Slick, dressed in a suit and driving a new expensive truck drove into Mrs. Seller’s yard and said he wanted to buy the cow for his hobby farm. He said he was a lawyer who had a big acreage in the country for pleasure. He agreed to a price but didn't have cash, but then assured Mrs. Sellers that she should accept his cheque which he wrote out with a flourish. The cheque was a personalized one, including the printed name on top, Mr. Jake Slick QC and an address. Mrs. Sellers excused herself momentarily and went to her phone book and looked up law firms and sure enough there was a firm called Slick, Slick and Slicker. So, she came back to Slick, took his cheque, wrote out a bill of sale and Slick loaded the cow onto the truck and drove away with it.
Several days later Mrs. Sellers tried to cash the cheque at the bank. However, she was told that Mr. Slick had no account at all. The cheque was a forgery. When she contacted the police, the police informed her that they were looking for Mr. Slick, who is not a lawyer at all, and had defrauded a host of people including a truck dealership. They said that it was likely that Mr. Slick had departed to some exotic jurisdiction where he was enjoying his ill-gotten gains.
Several months later, Mrs. Sellers, who is a member of the Milk Producers Inspection Board was inspecting Mr. Dairy's farm. She found that he had her cow. I leave aside the nature of animal identification and simply assert that Mr. Dairy agreed that the cow in question was indeed the cow that had once been in Sellers’ possession. He had purchased the cow from Mr. Slick for value. Mr. Slick had represented himself as a Mr. Milk from Milk Farms when he sold the cow to Mr. Dairy. Mr. Dairy had acted in good faith and bought the cow for a reasonable price. The so called Mr. Milk had driven up in a truck with the sign of Milk Farms Incorporated painted on the side. Mr. Dairy never once thought that he was dealing with a fraud artist rather than an owner of a dairy operation who wanted to sell one of his cows.
Mrs. Sellers now argues before this court that Mr. Dairy must return the cow to her. Mr. Dairy argues that this court should affirm his continued legal right to possess the cow as against Mrs. Sellers.
Now before we read anything about the decision of Madam Justice Lex on the facts, apply the analogical three step to this past case in relation to the problem case we talked about in the last lecture, namely the lawnmower case of Smith and Jones.
Step one- Does this case provide a possible starting point or base point for analogical reasoning for the problem case of Smith and Jones?
Are the cases the same? What might I mean when I say that no two cases are ever the same? In step one we are not asking if we will follow the precedent case or not, we are simply trying to identify whether there are enough similarities in the context to at least look at the case as a possible base point. Of course, we will usually be looking at many past precedents and trying to find the base point that might be most like the facts of our precedent case but suppose by way of our hypothetical that this Sellers v. Dairy case is one of the cases you found in your legal research. Should you discard it as a matter of the first step, or should you look at Madam Justice’s decision as a possible precedent for your case?
While there are differences, we would argue that the two cases are similar enough on the facts to use the case as a base point. In both cases we have an innocent purchaser for value in possession of the goods in question. In both cases the purchases were made from a con man. In both cases the original owner is trying to get the court to force the purchaser to hand the goods back to the original owner.
Ok I think step one is fairly easy and obvious in this case. Remember that step one does not mean that we must follow the precedent, but only that we should consider it as a base point for reasoning. In the next steps we may or may not follow it.
On to step two:
If the Sellers v. Dairy precedent is a relevant precedent to look at in terms of the Lawn Mower case, what are the material similarities and differences between the two cases? Note the use of the word materiality. What is a material similarity or difference?
Can I say that the cases are materially similar because both original owners are women and both ultimate purchasers are men and the rogue in both situations was a man. Does gender matter here? It might matter in some other situations, but it is hard to see that it is material here.
Should I say, well the types of goods at stake are different? One deals with a lawnmower, the other a cow. Is this material? Well maybe it could be said that a cow is an animal, a sentient being. The decision as to ownership or possession of such beings might for logical reasons be different than for inanimate objects. We might think, for example, that if we were dealing with animals as pets, the decision about who should get a dog or cat as between an original owner and an innocent purchaser for value might include relational elements that may not be present with inanimate objects. But this relational factor may exist in some other way with some objects too? Suppose that you spend many long hours custom building or restoring a car and that you really care about this car. Now the car is stolen. Or perhaps you actually had to sell the car, but you cared a great deal about who the new owner of the car would be and how that new owner would treat the car. But it turns out the new owner was a fraud artist who then sold the car to an innocent purchaser for value who has no particular appreciation for the uniqueness of the car.
So, as we list the similarities and differences, we must first make some reasonable judgments about irrelevant differences and similarities.
But what could be relevant material differences between the present case of Smith and Jones and the past case of Sellers and Dairy? Sellers voluntarily gave up possession of the cow to the rascal who defrauded her. Smith did not give possession of the lawnmower to Mr. Rogue. Rogue stole it. In the precedent case we have the owner handing the goods over to the rascal, and in the problem case we have the goods stolen from the owner.
O.K. there may be more material differences, but this is a big one.
Smith-------->theft-------->con---------->sale------->Purchaser
Sellers------>fraud-------->con--------->sale------->Purchaser
Let’s leave it at that for now and move to the third step.
Now step three involves the judgement as to whether the differences are more important than the similarities. Is the Cow case like the Lawnmower problem? Like cases should be decided alike. Are the cases different in such an important respect that we should not necessarily follow the precedent case?
Well, how in the world are we supposed to judge whether this difference between losing possession by theft v. losing possession by fraud is important enough so that the two cases might be treated differently in terms of result? Given the amount of similarities between the cases maybe the result should be the same?
The judgment of importance at the third step is something open to argument. It is open to the kind of policy arguments we made last day about market transactions and ownership security and the like. But here is a point that you should consider. The judgment of importance is made against the backdrop of all sorts of legal policies and principles that are embedded in the wider corpus of the law. Most importantly, while not totally constraining by any means, the third step is made with at least some consideration being given to the judgments of importance made in the previous case itself.
We expect judges to give reasons for their decisions, to justify what they do in the name of the state- to justify the invocation of the police power to order people to do things against their will. While we are not strictly bound to make the same judgments of importance in our case that the judge did in the earlier case, we look to the reasons given by the judge in the precedent case to see how that judge or court treated the facts. What facts did that court think were important in making the decision?
O.K. now let's look at what the court said in Milk. Just as a hypothetical suppose Madam Justice Lex said:
Mrs. Sellers cannot get her milk cow back from Mr. Dairy. As between an innocent purchaser for value acting in good faith and the original owner defrauded of property, the loss should be borne by the original owner who best could have prevented the loss in the first place by taking more care as to whose hands voluntary possession of the article is given. True, Sellers was defrauded, but she met the con man face to face and she gave up possession to him. The subsequent purchaser acquired possession by way of fraud as well, but that was subsequent to the original act of Mrs. Sellers who was in the best position to stop the train before it started.
Now assume for the moment that the Sellers v. Dairy case is the only legal precedent for our lawnmower case. Does this mean that we should tell Smith as original owner that she cannot recover the lawnmower from Mr. Jones?
I have now given you the result of the precedent case:
Sellers ...sale (fraud) ...>con man......sale (fraud).... >Dairy (wins)
If we applied the precedent case result in our problem case:
Smith.....theft ...>con man......sale (fraud)......>Jones (wins)
But we are trying to judge whether the material difference (theft v. fraudulent sale) outweighs the similarities between the cases, so as to produce a different result. Maybe title in the cow passed to the con man by way of sale, even if fraudulent, while title did not pass to the lawnmower by way of theft?
How do the reasons in the cow case help us? We know that in this particular case the question of participating in the first link of the chain was important to Madam Justice Lex. Mrs. Sellers voluntarily entrusted the cow to the Rogue. The judge in the precedent case treats this fact as material. This is different from our situation where the lawn mower was stolen. Ms. Smith did not hand the mower over to the rogue. So the result in the cow case does not need to be the result in our case. Despite all the similarities, the difference is more important.
But look at from the perspective of the purchaser. Are we deciding like cases alike if we take the goods back from purchaser no. 2, but leave the goods with purchaser no.1? Are we treating these two individuals fairly when they acted the very same way? We could also argue that the social consequences of allowing the purchaser to keep the goods is to encourage a market for fraud. By fraud we generally mean that by some deliberate deception on the owner, the owner is induced to part with his or her goods. Why should we decide in theft cases to discourage a market for stolen property and yet in fraud cases we encourage a market for fraudulently obtained property?
On the other hand, perhaps the fact that Smith left the keys in the tractor and the tractor on the front lawn might lead us to a similar result rather than a different one? What is important is who could best avoid the harm and perhaps therefore the result should be the same even if the facts are different. The similarities are more important than the difference.
So, we have not necessarily solved the problem of making a judgement about importance.
O.K. assume that Madam Justice Lex said something different in her judgement. Assume she said:
What is significant is that Mrs. Sellers intended to pass the ownership of the cow to Mr. Slick. She made a contract of sale with Mr. Slick, in which title to the property did in fact pass. The contract was of course voidable in the sense that the cheque bounced, and she thought the man she was dealing with was a lawyer of substance rather than a scoundrel. Obviously, Mrs Sellers could get the cow back or her money back from Mr. Slick if she could somehow reach him. But until she reaches him, in effect Mr. Slick does have legal title to the cow and can pass it on to a purchaser for good value who acts in good faith without knowledge of the original fraud.
Now apply this case to our lawn mower case.
In the first hypothetical reasons for judgement that I gave you, the purchaser, Mr. Dairy won. In the second hypothetical reasons, Mr. Dairy won again. The result is the same, but the reasons are different. Now we can go through the same process as to how these reasons might help us at the third step.
This time however, I think the arguments can be stronger that our lawnmower case should be decided with a result that is in fact the opposite of the precedent case. Indeed, we might say that the precedent case demands a result that is different. We follow precedent, not only when we apply the same results to the same facts, but also by following the reasons which might demand the opposite results in a new case with different facts.
The point I want to make is that we do not just distinguish cases to avoid using a case as a precedent, we also can use the distinctions that exist from case to case to apply the logic in the precedent case to come up with a result in the new case. So, when we talk about distinguishing cases we might say on one hand, the cow case is different from the lawnmower case so we can distinguish it. Now let's start from square one and decide the lawnmower case on the basis of what we think is just. We can do that. Or as I have just said, we could say that the cow case is different, but the very reasons for judgement given in the case, can still be used to help us make a decision about the importance of the difference and the result due to that difference.
In the first hypothetical decision the factor of best loss avoider or original loss avoider was central to the decision of the judge. In this second hypothetical decision, we have reasons going to the formation of contracts and the passing of legal title. The logical inference from the judgement as stated in the second reasons is that the purchaser won because legal title was still passed through a fraudulent transaction. Therefore, to follow the case as precedent is to look at the passing of title. In our case of Smith we have no passing of title because we have a theft, not a contract. Therefore, Smith wins and Jones the purchaser loses.
O.K. that is an overview of the analogical three step, but as noted before, reasoning with case law is not based on analogy alone, but is also based on a complex interaction between factual analogy on one hand, and rule based reasoning on the other. That is, from specific cases we induce more general rules and principles of law, and then using these rules we apply them deductively to new cases, but then through analogy we may actually change the rules to be applied as we deal analogically with the particular fact situations of new cases in relation to the fact situations of the cases giving rise to the rules in question.
II. REASONING WITH CASE LAW: RULE BASED REASONING
When we think about rule based reasoning we are usually in the territory of deductive reasoning. The rule often has a structure: IF (various factual elements) THEN (legal consequence) UNLESS (factual elements that make up exceptions). When we look at the various factual elements of a rule we also need to identify if the elements are conjunctive… we need x and y and z…; or whether the elements are disjunctive… we need x or y or z. The rule is like a major premise of a syllogism. The next step, the minor premise is the fact situation from the client’s situation. Do our facts fit precisely every element of the requirements of the rule? The third step then is the conclusion. If any element of the rule is not present in our situation, the rule does not apply. If every element is present, the legal consequences of the rule apply to us. Just as we talked about the analogical three step as a dance, this might be called the deductive three step.
Absent all sorts of interpretation issues as to the scope and meaning of the rules in the first place, this simple rule based, all or nothing, deductive approach is commonly applied to more detailed rules given in fixed verbal form in statutes and regulations. But rules are not all of one type. Another common type of rule, for example, is a factors test. Here the rule contains a number of factors that the court should consider before implementing a legal consequence. This sort of “rule” is hardly applicable by deduction, but rather is subject to discretionary judgements as to whether enough factors have been aggregated together and what weight to give each factor that is present and absent in the minor premises before invoking the consequences. Another very common type of “rule”, especially in Constitutional law, is a balancing rule. Here if X (some factor or more specific elements) outweighs Y (some factor or elements) then legal consequence flows. Balancing tests are notoriously ad hoc and subject to the discretion of each person who applies the test. Rather than constraining the court by having a rule of law, we are left with judicial discretion.
Reasoning with rules in some deductive way is not confined to legislation but also forms part of case law reasoning, except that the common law rules are not in fixed verbal form. As you start reading casebooks and articles and texts you will be confronted with a model of common law reasoning that does not look like the analogical three step at all. The three step involves comparing and contrasting specific facts, reasoning from one particular case to another. But what you are often confronted with looks more like the deductive three step. Instead of saying this case is like this other case, we hear a lot about common law rules, and then these rules are deductively applied to new fact situations without much regard whatsoever for the specific facts of the earlier precedents that allegedly gave rise to these rules.
What is going on is that over a period of time a whole group of precedents may be summarized as standing for a particular proposition of law. There are hundreds of thousands of precedents, so it is impossible on every single legal issue to reason by analogy. Sometimes there is enough clarity and settlement of a point that we can simply quote a common law rule and apply it deductively to our situation. But when we look beneath the surface of simple deduction, we find that in fact analogical reasoning comes right back into the picture in the very process of reasoning from rules and that common law rules are flexible rather than fixed.
III. Ratio Decidendi and Obiter Dictum
The idea of having common law rules and combining analogical and deductive reasoning raises the topic of the Ratio Decidendi of cases. Let's tentatively and in a simplistic way define the Ratio Decidendi as the rule or principle of law that justifies the result of a case. Put another way, it is the rule or principle of law on which the decision is based. Some of your professors will never use the term “ratio.” Instead, they may ask you to explain what the holding of the case might be. By holding we do not mean that the plaintiff won or lost, but rather we are asking what the case stands for as a matter of law. You are probably familiar with stories that are meant to have some didactic purpose. We read a story and then we ask ourselves, “What is the moral of this story?” Or perhaps we ask, “What is the meaning of this story?” This is somewhat like asking after reading a reported decision of a case, what the ratio or holding of the case is. Like most rules we can usually express a ratio of a case through an “if- then” statement, or a “when-then” statement. When (and here we give a set of factual circumstances) then (here we give a legal consequence of some kind).
Before getting further into the issue of just what we mean by the concept of ratio, we should start with why the concept is useful. My thesis, borrowed largely from Karl Llewellyn's book called The Bramble Bush (lectures given to entering law students back in 1929) is two fold:
First, the concept of ratio functions in a common law case process to allow the judiciary to move beyond simply deciding the immediate dispute that is before the court and absolutely obviously similar cases by analogy that might come up in the future. We go beyond this, to the creating of law by the formulation of a more general legal rule or principle that potentially applies to a wider number of future cases.
Secondly, the concept of ratio at the very same time functions to limit the creation of law by the judiciary. So, you have two sides - the creation side, and the limitation side. What is confusing is that at some level the two sides are in tension with each other, even incompatible.
First - the creation side. The final order of the court, that Mr. Dairy can keep the cow and need not return it to Mrs. Sellers, for example, is only directed at the immediate parties. We call this res judicata...a matter has been adjudged... a thing has been judicially determined. The court has settled the dispute between Sellers and Dairy and the court can enforce the order by invoking the power of the state. Once the appeal period has ended, we say this case is closed, even if the law subsequently changes. It is res judicata and cannot be litigated again.
But the court is not just doing that. The court is laying down a precedent. Perhaps the next case that happens of fraud and then sale to an innocent party will not be litigated because the precedent will apply, and the original owner will predict that he or she has no chance in court to recover the property from the purchaser. The whole system of precedent is based on providing a degree of certainty and predictability to the law. So, the judiciary is there to finally settle those disputes that have not been voluntarily settled, but in doing so the court also adds a precedent to the vast pool of precedents that effect not just the parties to the dispute but all of us. The court is making law, applying law, clarifying law, and modifying the law that extends beyond the immediate parties to the dispute.
Giving reasons helps us to use precedents because not only do reasons help give us insight into predicting what facts were important to the decision for purposes of analogy, the reasons also help us to formulate a rule which the case stands for.
So here is where the ratio concept comes in- we talk not just about case law as factual stories with results that should be consistent over time in terms of like cases having like results, we also talk about case law rules and case law principles. That is case #l stands for a rule or principle of law and we can apply that rule or principle of law to case #2 if it is a similar case. Now the reasoning by the court is crucial if we are going to be able to formulate this rule that the case stands for.
In the reasons for judgment, the court is most likely going to pronounce a rule of law that it is making or that it is finding in past cases to apply to the case before the court. We can illustrate this as follows:
Suppose the judge in the cow case says:
Mrs. Sellers, who gave up her cow to a “Mr. Slick” representing himself as a lawyer of substance and giving her a false cheque for the cow, cannot recover the cow from Mr. Dairy who subsequently bought the cow from “Mr. Slick”.
Let's call this statement #1.
Now compare that to this statement:
An owner of property who gives up possession of it as a result of fraud, cannot recover possession from a purchaser who has subsequently acquired possession of the property in good faith.
Let's call this statement #2.
Which of these two hypothetical statements made by the judge sounds like a rule to you, and why?
The first statement, even if we could use it by analogy in another case, is not generalized. The first statement uses the terms Mrs. Sellers, rather than an owner of property. Uses the term cow rather than simply property. Uses the specifics of impersonation of a lawyer and giving a false cheque, rather than the word fraud, and so forth. In contrast, we might treat statement #2 as a possible ratio of the case useful in law creation because it has general application beyond the specific facts of the case, while statement #1 looks more like the result of the application of a more general rule in the specific case before the court. The treatment of statement #1 as the ratio would effectively mean that the rule would never be applied again, because it had no generality at all. But statement #2 could apply to many cases in the future. So, the ratio functions creatively to extend the meaning of a case into a wider orbit of potential cases.
But now let's turn to the second point about the function of the ratio concept as a limitation device. Suppose Madam Justice Lex in the Milk case also says this:
An owner of property who loses possession in anyway whatsoever should never recover possession from a good faith subsequent possessor of the property.
Let's call this statement #3. Now how does this statement compare to statements #l and #2?
Well statement #3 is also general, like statement #2, so it could be seen as potentially a ratio of the case, right? Must we say that statement #3, the most general, is the ratio of the decision in the cow case, even if the judge in fact lays down statement #3?
No, we can say that it is an obiter dictum. This refers to statements that the court makes beyond the matter at hand. We could define obiter as all statements of rules or principles in the case that are not part of the ratio of the case because they go beyond the rule necessary for the decision. Whether a rule goes beyond the matter at hand is obviously not free of ambiguity and we will turn to this in a moment, but for now, why do I even want to label something obiter rather than ratio?
Suppose Madam Justice Lex in the Milk case said:
While I'm dealing with cows, it has come to my attention that Dairy Farmers are letting cows escape into neighbouring crop fields. I rule that farmers are absolutely liable to neighbours for any damages caused by their cattle.
Let's call this statement #4
Is there any doubt this statement #4 is obiter rather than ratio? No. It is clearly obiter because it is a statement of law that has nothing to do with the issues and result in the cow case at all. You might like statement #4, but it is clearly outside the range of issues that Madam Lex needed to deal with to decide the case of Sellers v. Dairy. The idea that we can actually decline to follow obiter statements acts as an important limitation on the judicial branch. The arguments before the court deal with questions related to the specific facts of the case. So the idea of the ratio is that it can only be the rule of law that the facts and legal issues in the case give rise to. This limits the power of the judiciary. The Cow case is not a precedent for rights to compensation for property damage by trespassing animals because the case does not deal with that on its facts. No matter how strongly the judge likes statement #4 it is clearly obiter, it is completely out of the range of relevant possible statements of law necessary to the decision in the Cow case.
The democratically elected legislature is subject to the division of powers under the Constitution Act 1867 and subject to the Charter of Rights which limits its powers, but nevertheless it can lay down 20 rules for the betterment of society. But this is not the case of judges. Judges can make law only incrementally from case to case. At least this is the theory. We will soon see in this course that the Supreme Court of Canada in particular has suggested that certain kinds of obiter from the court should nevertheless be binding on all of us, and furthermore the court is sometimes quite willing to lay down 20 rules that the court thinks will be for the betterment of society.
Nevertheless, according to traditional common law methodology, however we define the ratio, we should now be aware of one thing - to be a ratio, the rule or principle must be at least necessary to determine the results of the case - and that means on the facts and legal issues actually before the court.
But go back to statement #3- it is relevant to the issue before the court, isn't it? Yes, but here is an important point- statement #3 can be relegated to the status of obiter even if it is relevant, by another principle, namely that the ratio must not only be relevant to the facts and issues in the case but also must be limited by the particularity of the facts and issues. This means that statement #3 could be seen as too general and therefore as obiter.
Statement #2 is more general than statement #1, and statement #2 could be a ratio, therefore we see the creative side. But statement #3 as a general statement could be relegated to obiter for being too wide and general, even though the judge made the statement and treated it as the rule in the case. Thus, you see the limitation side.
But how do you determine then how general to create the ratio and what is too general?
IV. Formulating the Ratio of a Case
Now we must clarify further what we mean by finding a ratio in a case by looking briefly at four different approaches to the concept:
By this we mean the rule or principle of law that the judge or court lays down; that it posits, so to speak, as the sufficient ground for the decision. Now this is the loose and lazy way to deal with cases. You read the case and simply find the rule that the court treated as the ground for the decision, and all other rules of law mentioned by the court that add to the argument or are mentioned along the way are obiter.
For example, if Madam Justice Lex in the Cow case says statement #2 is the rule she is applying to the case, then that is the ratio of the case. Indeed, often you see in this loose and lazy view of precedent that you don't even put too much weight on which rules of law are ratio and which are obiter. You will see lots of cases where the judgment reads something like this: In the case of Smith v. Jones Mr. Justice Sopinka said... “a statement of law." In the case of Black v. White, Mr. Justice Laskin said: ... "a statement of law." In the case of Bloggs v. Scum, Chief Justice Freedman said… “a statement of law.” Therefore, in our case the result is X. In other words, propositions of law are simply lifted out of cases at face value to support the conclusion, with little if any careful analysis of case similarities in terms of factual analogy or consideration as to how wide or narrow the holdings should be stated.
Now this simple loose and lazy approach is sometimes sufficient for easier cases and may be used even in harder cases because the judge is trying to justify a particular result and throws down whatever propositions support the desired result. However, it does not get us very far in really understanding how to formulate a ratio, or how case law reasoning works. Now what is wrong with the posited rule theory? We have already established above that the ratio, properly so called, is limited by the issues and facts that are material to the result in the case. This means that the judge in the Cow case can posit what they think is the rule grounding their decision, but that rule may be stated at a certain level of generality, and future judges are not necessarily bound to accept the rule exactly as posited, if future judges have good reasons not to do so. Even The judge in the precedent case can hardly foresee all the possible factual and policy problems that might arise with the rule as it is formulated. A case is authority only for what it actually decided, rather than for everything it said.
Here's an absolutely fundamental point that you must realize. A posited common law rule in a case may look like a legislative provision, but it is not. It is wrong to think of case law reasoning in the following way: We take a precedent case and formulate a ratio (rule). Then we say that our problem case is similar enough to the precedent case to apply the rule. Then by deduction we apply the rule to the facts in our case. Rather, case law reasoning involves the combination of analogy and rule reasoning at every step.
We discover precedent cases by finding cases that are analogous to our problem case, but then we construct the ratio of the precedent case, not in isolation from our problem case, but with reference again to the material facts and issues of both the precedent case and the problem case. Then when a ratio is formulated, it is actually subject to being restated, with new exceptions, or with higher or lower levels of generality with reference again to the particular facts and issues of the problem case. This is to say that the ratio is not what the court says it is, but what later courts say it is with reference to new applications of the ratio. This is different from the interpretation of legislation where, as we will see in this course, there may be room to interpret legislation so long as the words can bear a variety of interpretations, but nevertheless the rule as written cannot be rewritten. Legislation is supreme and is posited in a kind of fixed verbal form that constrains the judiciary. But we do not need to treat the common law rules posited in cases as if they were legislative provisions. In the context of a new problem case, we have considerable flexibility to argue that the posited rule is stated at too low a level of generality and should be expanded to include our situation, or we could argue that the posited rule is too general and should be narrowed down to exclude our fact situation from it.
2. The “Materiality” Theory
The ratio is the rule or principle of law constructed out of the material facts and the conclusion thereon in relation to the material legal issues before the court. This theory was elaborated many years ago by Professor Goodhart.
First, note "constructed out of."… That is, we construct out of the material facts and the conclusion thereon a ratio. The ratio is not necessarily what the judge says is the rule in the case, nor does the ratio come directly out of the reasons given by the judge. The common law is not like statutory language. The ratio is constructed out of and is limited by the material issues the court has to decide. If there are, for example, three issues that the court has to decide, there may be in fact three different ratios in the case, one for each of the issues.
Similarly, you must look at the facts of the case. The judges clearly do not have the power to decide what is not before them to decide. Thus, the ratio in terms of its generality is limited by the material facts of the case. This relates exactly to what we have just looked at in terms of expressing the ratio in a general way but not too generally. The ratio should only be expressed at a level of materiality, not at any level of generality.
More controversially, Professor Goodhard suggested that in formulating the ratio we are supposed to be constrained by the precedent case by looking at the material facts as the judge in the precedent case saw them. However, there is of course a real problem between the interpreter expressing what are the material facts, as opposed to the original judge positing what are the material facts. Why should we be bound by the judge's identification of the materiality of facts, but not bound by his expression of the generality of the rule?
Supposedly, the fact of fraud is material in the cow case. So, the ratio of the case should only deal with fraud and not something else like theft, which is a factual matter not before the court to decide. But suppose the judge says that how possession is lost is not a material fact and what is material is the innocence of the current possessor? Would we be bound by that in formulating the ratio?
Now the idea of the predictive range theory is that you must not think that there is only one ratio that a case stands for on any legal issue, as if we were trying to find a buried treasure in the case, or a needle in a haystack. Rather what you have is a range of possible ratios from the most narrow to the most wide, and all we can try to do is predict where a future court in a new case will draw the line on the generality range.
Suppose you have some material fact-issue about how the original owner lost possession. This factor of loss of possession is going to be part of the overall ratio of the cow case and also of the lawnmower case.
Perhaps you lose possession by a sale through a bad cheque, or you lose possession by a sale with only a promise to pay, or you might lose possession by a loan, or you might lose possession by a theft so that we might envision this as a narrower to a wider expression of this material fact in the case.
Part of common law reasoning includes inductive reasoning. There may be a number of past cases and when we put all these cases together and look at the facts, holdings, and results of each case with reference to the others, we may then construct a more generalized statement or principle of law that explains all of these cases together. Sometimes this process is called fusing cases, or the process of synthesizing cases.
4. The “Purposive” Theory
All of these different theories about establishing the holding of past cases have some value and some difficulties. One last theory that I want to mention is what I call the purposive theory, and later in this course you will see how this theory comes out of one of the most powerful approaches to the interpretation of legislation. When you have ambiguity or other difficulties in interpreting a legislative provision, you want to identify, if possible, what the purpose of the legislation is. What does the legislation aim to accomplish in the world? It makes sense, and shows respect for the democratic legislature, to interpret the rule in the way that best advances the purpose, rather than frustrates it. The same consideration may be given to your formulation of the ratio. If you have choice as to how broadly or narrowly to express a rule, you may well receive some help by consideration of the possible purpose(s) of the rule. If the problem case has some material difference, but the rule in the precedent case has a social purpose that is just as important in the context of the problem case, we might well expand the rule to cover the problem case. The reverse argument might be made that even if the precedent rule seems at first blush to cover the problem case, there are differences in context or facts where the purpose of the rule would not be advanced, and the rule should be read down so as not applicable to the problem case.
5. Plurality Judgments
There are special considerations that must be given when attempting to identify the holdings of appeal court judgments that involve multiple judgments from a bench of nine, or seven, or five, or three, or sometimes from an even numbered bench that splits down the middle in a case. This is a very important topic, and I will address these matters in class.
V. WHAT ABOUT LEGISLATION?
It would be quite wrong to think that judge-made law through case-based reasoning is still the dominate form of law within the common law system. It is still an important source of our law, but I would argue that in the last century we have witnessed a proliferation of legislation. This movement to legislation as a source of law is so overwhelming that periodically we wonder if the common law might eventually be dead, as legislation takes over.
Remember too, that we have the doctrine of the priority of legislation. Subject to constitutional validity, legislation can overrule the common law found in case law. If a common law rule is inconsistent with a legislative provision that clearly covers the field, the common law rule gives way. Legislation has the legitimacy of democracy. Common law used to claim the legitimacy of reason, but we have subsequently lost faith in objective reason. We only have subjective ideology and power politics now.
But in a section in this course we will look at the way in which the judiciary still has a primary role to play when dealing with legislation, because disputes arise as to the meaning of legislation and courts lay down precedents dealing with interpretation.
Of course, the most obvious example of the primary role of the courts involves constitutional interpretation, because the provisions of the constitution, particularly the Charter, are so open ended that in effect it is the judiciary that establishes the scope and limitation of rights from case to case utilizing case-based reasoning rather than deductive rule-based reasoning. One of the major themes in this course will be the legitimacy of the court, particularly the Supreme Court, in making law for society, which is simply inevitable given the open-ended nature of the Constitution. The text of the constitution is not particularly constraining in most cases, but rather it is as if the Supreme Court was asked to blow air into balloons. At some stage the balloons can be blown to such a size that they pop. At the other end of the scale, the court might not blow any air into a balloon at all. If the balloon pops or has no air in it at all, we say the court has gone beyond the text or has not followed the text. But subject to this, you can blow a small balloon all the way to a very big balloon and the text does not constrain the judiciary at all. Judicial decision making under the Charter is politics in another mode.
VI. POLICY?
Lurking behind all of these abstract formalities about following precedent by factual analogy and rule-based reasoning is the reality that courts are not blind to consequences and social context. Much of legal reasoning, particularly at the appellate level, deals with policy, just as much as it does with legal principles found in the pre-existing sources of law- precedents and legislative enactments.
By policy I do not mean the kind of purposive arguments that examine the policies behind existing rules of law. Indeed, memorizing rules of law will not get you very far. It is when you come to some understanding of the purposes and policies behind the bare rules that you will start to learn the law.
However, by policy I mean rather that lawyers regularly argue about what the law should be, just as much as they might argue about what the law is. Some judges may see their role as primarily finding the law that exists and applying it, whether they like it or not. As much as possible, creativity should be left to the legislature. Other judges may embrace an activist role. Like the late Lord Denning, they believe that they can create a better world by reforming the law whenever possible. All judges have ideological preferences. Some set them aside, or try to, in the face of the law as it is; others consciously attempt to change law to fit their ideology of what a good society should be. I expect that you will develop your own views in law school as to what you believe the nature and scope of judicial creativity and constraint should be.
Sit down some late night and watch the oral arguments at the Supreme Court of Canada that are regularly televised and broadcast on CPAC. Take out your notebook and try to summarize in a number of cases how much time the lawyers spent on issues of fact, how much time on arguing the meaning of past precedents or legislation, and how much time was spent on arguing what the law should be- in terms of interests to be balanced, consequences to be achieved or avoided, and moral values to be advanced or rejected. I would suggest that your exercise will lead you to see that today legal reasoning cannot be separated from policy analysis.
VII. THE MYTH OF A JUDICIALLY CENTRED LEGAL SYSTEM
The focus of this legal system course, partly governed by the very limited time available for it in the curriculum, will be on topics closely related to courts and the judiciary. -Reasoning with precedent cases and interpreting statutes; the judicial process in terms of fact finding, the role of juries in the judicial system, alternative dispute resolution, the independence and accountability of the judiciary; and various jurisprudential theories about the proper role of the judiciary. I think these are all very important aspects of understanding the legal system, but it should be noted that this judicial focus is also very limited, and an understanding of the legal system ideally would encompass many more topics.
By way of conclusion to these introductory remarks, (and a sincere congratulations to you for reading this far), I will only briefly mention one of many legal institutions, processes, actors, and contexts that are missing from the picture when we focus on the judiciary. I regret that we will not spend time on the legal profession and the law office as a crucial part of the legal system. A lot of law is applied and made in the law office and not in court. Many, if not most, lawyers never see the inside of a courtroom after their call to the bar, and even the call to the bar may take place outside of a courtroom (in a concert hall or a church or whatever). What are these lawyers doing?
Preventive Law and Transactional Law
I would point out that lawyers play a very big part in our society in the prevention of disputes in the first place. We have the whole field of law that we call preventive law and planning law and transactional law. Lawyers are engaged in transactions. This part of lawyering, involving the prevention of disputes in the first place, is seldom visible to the public, but in fact amounts to the bulk of what lawyers do. Most lawyers are not litigators, because their work involves other kinds of lawyer transactions that have to do with what I call the nonadversarial legal process. The goal of the lawyer is to solve problems, not win cases. The goal of the lawyer is to find consensus and to create channels of cooperation.
How do lawyers prevent disputes? People want to engage in various activities. They want to go into business with other people and form a partnership or corporation, or they want to buy or sell some property, or make a will or trust in the event of their death, or they want to adopt a child or change their name, or whatever. Or people are already engaged in some enterprise and a host of issues arise about how the enterprise can proceed in terms of environmental impact, or zoning, or labour legislation, or regulatory compliance, or whatever. Not only do private institutions and individuals want to do things, but there are a host of public institutions and agencies that want to do things as well- government boards and tribunals and departments. All of these transactions and enterprises, whether public or private, involve law and lawyers working in law offices. Lawyers channel activities through law in a way that prevents disputes from arising about these activities.
Problem solving in the law office involves counselling clients. We try to understand the goals, values and aspirations of the client and we work with the client to identify the various legal options that are available to reach the goal in question, and then we help actualize the option that the client has chosen. We may need to negotiate with other parties, or draft legal documents, or channel a matter through regulatory agencies and so forth.
Now one fundamental fact about all of these matters which I am calling preventive law and non adversarial legal process, is the distinction between disputes about something that has happened in the past, (a statute has come into force and now someone says it is unconstitutional, a crime has allegedly been committed and someone is charged with doing it, a contract has allegedly not been fulfilled, someone was injured by someone else and now claims compensation and so forth), versus activity by lawyers in structuring things to happen in the future. For disputes involving stuff that has happened, we talk about the role of law, lawyers, and the legal system as a system of dispute resolution, but for the facilitation of action to be taken or action that is not allowed to be taken, we talk about the role of law, lawyers, and the legal system in dispute prevention.
Now when we think about these forward-looking activities, which I call the non adversarial legal system, where future activity is only in contemplation, rather than already completed, we must still acknowledge that we are often dealing with conflicting interests. Having conflicting interests is not the same thing as having a dispute. The presence of conflicting interests does not mean that we must adopt an adversarial stance of maximizing one interest to the exclusion of others rather than trying to harmonize all the interests. Lawyers want to be deal makers, not deal breakers.
It should also be noted that the role of lawyers includes the prevention, not just of disputes, but the prevention of illegality. Lawyers do not just tell clients what the law requires, and of course we acknowledge that good faith arguments can be made as to what the law requires, but in any event, lawyers also prevent illegality by refusing to do what is clearly illegal to do. It is fundamental to the legal profession to be reminded in day one at law school that we do not just represent clients, we also represent the law and have a higher duty to the law. (I have argued elsewhere that this duty to the law may not be absolute in some contexts of extreme injustice, and that even lawyers may in some circumstances engage in a kind of civil disobedience, but this is topic that would require a lengthy debate and defence.) For now, lets say that the job of the lawyer is to apply the law in the law office. When your client wants to do something that is illegal you must refuse to assist him or her. The legal profession has been entrusted by the public with the task of upholding and improving the law and the justice system, not with the task of helping clients to break the law and evade the law and destroy the spirit of the law. Your client may be the one who is paying you money, but he or she is not the party that grants you the license to practice law. You are an officer of the court first, and then only secondarily, do you represent particular clients. Lawyers who assist their clients in breaking the law not only break their professional trust, but they are also subject to disbarment and often end up in a jail cell along with their clients.
Finally, when we talk about channeling activities through law as a way of preventing disputes, we do not just mean dealing with the law that already exists like the land titles systems, but we also mean that law is made by lawyers right in the law office. There is a pre-existing law about contracts, but the actual contract as a body of legal rules in a particular case is something that we actually draw up. The act of formalizing a relationship into rules and principles of law as drawn up in the law office prevents future disputes just as much if not more so than the application of legislation and case law to the activity in question.
To say that lawyers are involved in peacemaking by preventing disputes in the first place through giving legal advice and channelling activities through law seems like a good theory. The problem is that legal services are not distributed equitably in our legal system. Many people cannot afford to have their disputes litigated in court, much less to have good legal advice to prevent disputes or better their lives. All across the country we have witnessed the gutting of legal aid. An abundance of lawyers spend their lives working for the rich and powerful individuals, corporations and interest groups. Furthermore, we have already seen that law is not a simple system of pre-existing rules, but rather law is malleable and is manipulated to serve some interests at the expense of other interests. Is our law just? Is our legal system just? Whose interests does it serve?
Alvin Esau, Faculty of Law, University of Manitoba
I. REASONING WITH CASE LAW: ANALOGICAL FACTUAL REASONING
For the moment in a highly simplistic fashion, let’s say that common law case law reasoning is analogical as compared to reasoning with legislation which is deductive.
Now think about any number of situations in everyday life where you reason by using analogies. That is, you have two things or situations or concepts or whatever that are not exactly alike, but you argue that they have similarities, and that due to these similarities your understanding of one can be applied to understand the other. Or in attempting to explain how one situation works, you contrast it to another situation. The one situation is still being used to elucidate the other, but now by way of contrast rather than complementarity.
Much of our reasoning in everyday life involves applying our knowledge of one situation to a new situation. The new situation is interpreted by what we know of the earlier situation. The earlier situation provides a contrast to the new or a complimentary situation.
For example, suppose that my 8-year-old daughter starting grade three comes to me and complains about the rule that she is supposed to be in bed by nine. She says that it is just not fair that her sister, who is 10 years old and starting grade five, gets to stay up till 10 o’clock.
Notice what my younger daughter has done here. She has reasoned by analogy that her sister’s bedtime should also be her own bedtime. We are sisters, we are children in elementary school, we should have the same bedtime.
My response to her is also analogical. I point out that she also has twin brothers who are six years old and starting grade one and they have a bedtime of 8 o’clock, therefore her bedtime of nine is appropriate and should not be shoved up to 10 like that of her sister.
Now notice that reasoning by analogy involves three steps: We might say this is the dance called the analogical three step:
Step number one- we identify one or more past precedents that are the base points or starting points from which we want to reason.
My daughter chose her sister’s bedtime as a base point. I countered with her brother’s bedtimes as a base point and then used both base points to contrast her own bedtime.
In terms of this first step of identifying possible base points for analogies, we need to judge the propriety of any alleged base points. Often reasoning by analogy is faulty because the base points are inappropriate to begin with. Someone tells us that we are comparing apples and oranges as the popular expression goes.
Suppose that my daughter says, “The rain in Spain falls mainly on the plain,” so I can stay up till 10. Well, you will forgive me for scratching my head and saying that I fail to see that the rain in Spain has anything whatsoever to offer as an argument for your bedtime.
Well, she might reply that “Owls stay up at night, so I can stay up till 10.” Well once again, we at least have some connection with waking and sleeping, but I fail to see any propriety whatsoever in using owls as a base point.
However, the base point of her sister is appropriate at least to start the reasoning process. Perhaps another good base point would be if she told me that she took a survey of her grade three class and she discovered that most of her classmates did not have to go to bed till 9:30.
Now in the next weeks we are going to talk about the hierarchy of courts and the various jurisdictions of courts and the formal conventions of precedents that constrain how we deal with this first step in analogical reasoning. But the process is not cut and dried. There is flexibility and uncertainty in the legal reasoning process right from step one as arguments are made about the appropriate base points in any given situation.
If we are looking at past cases in a purely analogical way, (and as I will point out in due course this is misleading because we also attempt to formulate rules from past cases), the second step is that after we have a precedent as a starting point, we compare and contrast the precedent case with the problem case. We identify all the material differences and similarities between the two situations.
Here is where you must be rigorous. You must unpack the fact situations and make sure you identify what is similar and what is dissimilar.
Each situation deals with bedtime. Each deals with one of my children. Each deals with elementary school children. But the ages of the children are different. Each child may have a different energy level. A different pattern of going to bed. A different mood in the morning. A different metabolism. When we look for material differences and similarities, we also must be sensitive to the context. What is the context for the precedent case and the context of our problem case?
Now the final step in the dance. The third step is that we must make a judgment that is not cut and dried and is quite uncertain and unconstrained. We must judge whether the differences are more important than the similarities, or the other way round. If the similarities are more important, then in theory we might follow the precedent case as analogous to the problem case. We say that like cases should be decided alike. If the differences are more important, then we might distinguish the precedent case. We say that the two cases are disanalogous.
In replying to my daughter, I did not follow either the precedent of the older sister nor the precedent of the younger brothers, but rather distinguished those cases on the bases of my second daughter’s age, and made a bedtime appropriate for her.
But what is critical here is to understand that following precedent involves making judgments about the importance of various factors and that judgment is not constrained by the previous precedent itself. The process is not mechanical.
Now let’s apply these three steps in common law legal reasoning by turning to a past hypothetical case.
Applying Past Cases to our Hypothetical Problem
Suppose purely as a matter of our hypothetical that we find a reported case of Sellers v. Dairy before Madam Justice Lex in the Queens Bench of Manitoba. (Usually, you will be looking at appeal court decisions as the most important source of precedent. Trial courts are bound to follow higher court precedent, and many trial court decisions involve disputes over factual matters rather than disputes about the law. Nevertheless, trial judges can make important decisions about the law and these decisions may be published in law reports and be used as precedents in other cases, especially when the higher courts have not spoken.)
Suppose that in her written decision Justice Lex summarizes the facts in the case of Sellers v. Dairy as follows:
One day, Mrs. Sellers, a small dairy operator, decided that she had too many cows and advertised one for sale. Eventually, Mr. Slick, dressed in a suit and driving a new expensive truck drove into Mrs. Seller’s yard and said he wanted to buy the cow for his hobby farm. He said he was a lawyer who had a big acreage in the country for pleasure. He agreed to a price but didn't have cash, but then assured Mrs. Sellers that she should accept his cheque which he wrote out with a flourish. The cheque was a personalized one, including the printed name on top, Mr. Jake Slick QC and an address. Mrs. Sellers excused herself momentarily and went to her phone book and looked up law firms and sure enough there was a firm called Slick, Slick and Slicker. So, she came back to Slick, took his cheque, wrote out a bill of sale and Slick loaded the cow onto the truck and drove away with it.
Several days later Mrs. Sellers tried to cash the cheque at the bank. However, she was told that Mr. Slick had no account at all. The cheque was a forgery. When she contacted the police, the police informed her that they were looking for Mr. Slick, who is not a lawyer at all, and had defrauded a host of people including a truck dealership. They said that it was likely that Mr. Slick had departed to some exotic jurisdiction where he was enjoying his ill-gotten gains.
Several months later, Mrs. Sellers, who is a member of the Milk Producers Inspection Board was inspecting Mr. Dairy's farm. She found that he had her cow. I leave aside the nature of animal identification and simply assert that Mr. Dairy agreed that the cow in question was indeed the cow that had once been in Sellers’ possession. He had purchased the cow from Mr. Slick for value. Mr. Slick had represented himself as a Mr. Milk from Milk Farms when he sold the cow to Mr. Dairy. Mr. Dairy had acted in good faith and bought the cow for a reasonable price. The so called Mr. Milk had driven up in a truck with the sign of Milk Farms Incorporated painted on the side. Mr. Dairy never once thought that he was dealing with a fraud artist rather than an owner of a dairy operation who wanted to sell one of his cows.
Mrs. Sellers now argues before this court that Mr. Dairy must return the cow to her. Mr. Dairy argues that this court should affirm his continued legal right to possess the cow as against Mrs. Sellers.
Now before we read anything about the decision of Madam Justice Lex on the facts, apply the analogical three step to this past case in relation to the problem case we talked about in the last lecture, namely the lawnmower case of Smith and Jones.
Step one- Does this case provide a possible starting point or base point for analogical reasoning for the problem case of Smith and Jones?
Are the cases the same? What might I mean when I say that no two cases are ever the same? In step one we are not asking if we will follow the precedent case or not, we are simply trying to identify whether there are enough similarities in the context to at least look at the case as a possible base point. Of course, we will usually be looking at many past precedents and trying to find the base point that might be most like the facts of our precedent case but suppose by way of our hypothetical that this Sellers v. Dairy case is one of the cases you found in your legal research. Should you discard it as a matter of the first step, or should you look at Madam Justice’s decision as a possible precedent for your case?
While there are differences, we would argue that the two cases are similar enough on the facts to use the case as a base point. In both cases we have an innocent purchaser for value in possession of the goods in question. In both cases the purchases were made from a con man. In both cases the original owner is trying to get the court to force the purchaser to hand the goods back to the original owner.
Ok I think step one is fairly easy and obvious in this case. Remember that step one does not mean that we must follow the precedent, but only that we should consider it as a base point for reasoning. In the next steps we may or may not follow it.
On to step two:
If the Sellers v. Dairy precedent is a relevant precedent to look at in terms of the Lawn Mower case, what are the material similarities and differences between the two cases? Note the use of the word materiality. What is a material similarity or difference?
Can I say that the cases are materially similar because both original owners are women and both ultimate purchasers are men and the rogue in both situations was a man. Does gender matter here? It might matter in some other situations, but it is hard to see that it is material here.
Should I say, well the types of goods at stake are different? One deals with a lawnmower, the other a cow. Is this material? Well maybe it could be said that a cow is an animal, a sentient being. The decision as to ownership or possession of such beings might for logical reasons be different than for inanimate objects. We might think, for example, that if we were dealing with animals as pets, the decision about who should get a dog or cat as between an original owner and an innocent purchaser for value might include relational elements that may not be present with inanimate objects. But this relational factor may exist in some other way with some objects too? Suppose that you spend many long hours custom building or restoring a car and that you really care about this car. Now the car is stolen. Or perhaps you actually had to sell the car, but you cared a great deal about who the new owner of the car would be and how that new owner would treat the car. But it turns out the new owner was a fraud artist who then sold the car to an innocent purchaser for value who has no particular appreciation for the uniqueness of the car.
So, as we list the similarities and differences, we must first make some reasonable judgments about irrelevant differences and similarities.
But what could be relevant material differences between the present case of Smith and Jones and the past case of Sellers and Dairy? Sellers voluntarily gave up possession of the cow to the rascal who defrauded her. Smith did not give possession of the lawnmower to Mr. Rogue. Rogue stole it. In the precedent case we have the owner handing the goods over to the rascal, and in the problem case we have the goods stolen from the owner.
O.K. there may be more material differences, but this is a big one.
Smith-------->theft-------->con---------->sale------->Purchaser
Sellers------>fraud-------->con--------->sale------->Purchaser
Let’s leave it at that for now and move to the third step.
Now step three involves the judgement as to whether the differences are more important than the similarities. Is the Cow case like the Lawnmower problem? Like cases should be decided alike. Are the cases different in such an important respect that we should not necessarily follow the precedent case?
Well, how in the world are we supposed to judge whether this difference between losing possession by theft v. losing possession by fraud is important enough so that the two cases might be treated differently in terms of result? Given the amount of similarities between the cases maybe the result should be the same?
The judgment of importance at the third step is something open to argument. It is open to the kind of policy arguments we made last day about market transactions and ownership security and the like. But here is a point that you should consider. The judgment of importance is made against the backdrop of all sorts of legal policies and principles that are embedded in the wider corpus of the law. Most importantly, while not totally constraining by any means, the third step is made with at least some consideration being given to the judgments of importance made in the previous case itself.
We expect judges to give reasons for their decisions, to justify what they do in the name of the state- to justify the invocation of the police power to order people to do things against their will. While we are not strictly bound to make the same judgments of importance in our case that the judge did in the earlier case, we look to the reasons given by the judge in the precedent case to see how that judge or court treated the facts. What facts did that court think were important in making the decision?
O.K. now let's look at what the court said in Milk. Just as a hypothetical suppose Madam Justice Lex said:
Mrs. Sellers cannot get her milk cow back from Mr. Dairy. As between an innocent purchaser for value acting in good faith and the original owner defrauded of property, the loss should be borne by the original owner who best could have prevented the loss in the first place by taking more care as to whose hands voluntary possession of the article is given. True, Sellers was defrauded, but she met the con man face to face and she gave up possession to him. The subsequent purchaser acquired possession by way of fraud as well, but that was subsequent to the original act of Mrs. Sellers who was in the best position to stop the train before it started.
Now assume for the moment that the Sellers v. Dairy case is the only legal precedent for our lawnmower case. Does this mean that we should tell Smith as original owner that she cannot recover the lawnmower from Mr. Jones?
I have now given you the result of the precedent case:
Sellers ...sale (fraud) ...>con man......sale (fraud).... >Dairy (wins)
If we applied the precedent case result in our problem case:
Smith.....theft ...>con man......sale (fraud)......>Jones (wins)
But we are trying to judge whether the material difference (theft v. fraudulent sale) outweighs the similarities between the cases, so as to produce a different result. Maybe title in the cow passed to the con man by way of sale, even if fraudulent, while title did not pass to the lawnmower by way of theft?
How do the reasons in the cow case help us? We know that in this particular case the question of participating in the first link of the chain was important to Madam Justice Lex. Mrs. Sellers voluntarily entrusted the cow to the Rogue. The judge in the precedent case treats this fact as material. This is different from our situation where the lawn mower was stolen. Ms. Smith did not hand the mower over to the rogue. So the result in the cow case does not need to be the result in our case. Despite all the similarities, the difference is more important.
But look at from the perspective of the purchaser. Are we deciding like cases alike if we take the goods back from purchaser no. 2, but leave the goods with purchaser no.1? Are we treating these two individuals fairly when they acted the very same way? We could also argue that the social consequences of allowing the purchaser to keep the goods is to encourage a market for fraud. By fraud we generally mean that by some deliberate deception on the owner, the owner is induced to part with his or her goods. Why should we decide in theft cases to discourage a market for stolen property and yet in fraud cases we encourage a market for fraudulently obtained property?
On the other hand, perhaps the fact that Smith left the keys in the tractor and the tractor on the front lawn might lead us to a similar result rather than a different one? What is important is who could best avoid the harm and perhaps therefore the result should be the same even if the facts are different. The similarities are more important than the difference.
So, we have not necessarily solved the problem of making a judgement about importance.
O.K. assume that Madam Justice Lex said something different in her judgement. Assume she said:
What is significant is that Mrs. Sellers intended to pass the ownership of the cow to Mr. Slick. She made a contract of sale with Mr. Slick, in which title to the property did in fact pass. The contract was of course voidable in the sense that the cheque bounced, and she thought the man she was dealing with was a lawyer of substance rather than a scoundrel. Obviously, Mrs Sellers could get the cow back or her money back from Mr. Slick if she could somehow reach him. But until she reaches him, in effect Mr. Slick does have legal title to the cow and can pass it on to a purchaser for good value who acts in good faith without knowledge of the original fraud.
Now apply this case to our lawn mower case.
In the first hypothetical reasons for judgement that I gave you, the purchaser, Mr. Dairy won. In the second hypothetical reasons, Mr. Dairy won again. The result is the same, but the reasons are different. Now we can go through the same process as to how these reasons might help us at the third step.
This time however, I think the arguments can be stronger that our lawnmower case should be decided with a result that is in fact the opposite of the precedent case. Indeed, we might say that the precedent case demands a result that is different. We follow precedent, not only when we apply the same results to the same facts, but also by following the reasons which might demand the opposite results in a new case with different facts.
The point I want to make is that we do not just distinguish cases to avoid using a case as a precedent, we also can use the distinctions that exist from case to case to apply the logic in the precedent case to come up with a result in the new case. So, when we talk about distinguishing cases we might say on one hand, the cow case is different from the lawnmower case so we can distinguish it. Now let's start from square one and decide the lawnmower case on the basis of what we think is just. We can do that. Or as I have just said, we could say that the cow case is different, but the very reasons for judgement given in the case, can still be used to help us make a decision about the importance of the difference and the result due to that difference.
In the first hypothetical decision the factor of best loss avoider or original loss avoider was central to the decision of the judge. In this second hypothetical decision, we have reasons going to the formation of contracts and the passing of legal title. The logical inference from the judgement as stated in the second reasons is that the purchaser won because legal title was still passed through a fraudulent transaction. Therefore, to follow the case as precedent is to look at the passing of title. In our case of Smith we have no passing of title because we have a theft, not a contract. Therefore, Smith wins and Jones the purchaser loses.
O.K. that is an overview of the analogical three step, but as noted before, reasoning with case law is not based on analogy alone, but is also based on a complex interaction between factual analogy on one hand, and rule based reasoning on the other. That is, from specific cases we induce more general rules and principles of law, and then using these rules we apply them deductively to new cases, but then through analogy we may actually change the rules to be applied as we deal analogically with the particular fact situations of new cases in relation to the fact situations of the cases giving rise to the rules in question.
II. REASONING WITH CASE LAW: RULE BASED REASONING
When we think about rule based reasoning we are usually in the territory of deductive reasoning. The rule often has a structure: IF (various factual elements) THEN (legal consequence) UNLESS (factual elements that make up exceptions). When we look at the various factual elements of a rule we also need to identify if the elements are conjunctive… we need x and y and z…; or whether the elements are disjunctive… we need x or y or z. The rule is like a major premise of a syllogism. The next step, the minor premise is the fact situation from the client’s situation. Do our facts fit precisely every element of the requirements of the rule? The third step then is the conclusion. If any element of the rule is not present in our situation, the rule does not apply. If every element is present, the legal consequences of the rule apply to us. Just as we talked about the analogical three step as a dance, this might be called the deductive three step.
Absent all sorts of interpretation issues as to the scope and meaning of the rules in the first place, this simple rule based, all or nothing, deductive approach is commonly applied to more detailed rules given in fixed verbal form in statutes and regulations. But rules are not all of one type. Another common type of rule, for example, is a factors test. Here the rule contains a number of factors that the court should consider before implementing a legal consequence. This sort of “rule” is hardly applicable by deduction, but rather is subject to discretionary judgements as to whether enough factors have been aggregated together and what weight to give each factor that is present and absent in the minor premises before invoking the consequences. Another very common type of “rule”, especially in Constitutional law, is a balancing rule. Here if X (some factor or more specific elements) outweighs Y (some factor or elements) then legal consequence flows. Balancing tests are notoriously ad hoc and subject to the discretion of each person who applies the test. Rather than constraining the court by having a rule of law, we are left with judicial discretion.
Reasoning with rules in some deductive way is not confined to legislation but also forms part of case law reasoning, except that the common law rules are not in fixed verbal form. As you start reading casebooks and articles and texts you will be confronted with a model of common law reasoning that does not look like the analogical three step at all. The three step involves comparing and contrasting specific facts, reasoning from one particular case to another. But what you are often confronted with looks more like the deductive three step. Instead of saying this case is like this other case, we hear a lot about common law rules, and then these rules are deductively applied to new fact situations without much regard whatsoever for the specific facts of the earlier precedents that allegedly gave rise to these rules.
What is going on is that over a period of time a whole group of precedents may be summarized as standing for a particular proposition of law. There are hundreds of thousands of precedents, so it is impossible on every single legal issue to reason by analogy. Sometimes there is enough clarity and settlement of a point that we can simply quote a common law rule and apply it deductively to our situation. But when we look beneath the surface of simple deduction, we find that in fact analogical reasoning comes right back into the picture in the very process of reasoning from rules and that common law rules are flexible rather than fixed.
III. Ratio Decidendi and Obiter Dictum
The idea of having common law rules and combining analogical and deductive reasoning raises the topic of the Ratio Decidendi of cases. Let's tentatively and in a simplistic way define the Ratio Decidendi as the rule or principle of law that justifies the result of a case. Put another way, it is the rule or principle of law on which the decision is based. Some of your professors will never use the term “ratio.” Instead, they may ask you to explain what the holding of the case might be. By holding we do not mean that the plaintiff won or lost, but rather we are asking what the case stands for as a matter of law. You are probably familiar with stories that are meant to have some didactic purpose. We read a story and then we ask ourselves, “What is the moral of this story?” Or perhaps we ask, “What is the meaning of this story?” This is somewhat like asking after reading a reported decision of a case, what the ratio or holding of the case is. Like most rules we can usually express a ratio of a case through an “if- then” statement, or a “when-then” statement. When (and here we give a set of factual circumstances) then (here we give a legal consequence of some kind).
Before getting further into the issue of just what we mean by the concept of ratio, we should start with why the concept is useful. My thesis, borrowed largely from Karl Llewellyn's book called The Bramble Bush (lectures given to entering law students back in 1929) is two fold:
First, the concept of ratio functions in a common law case process to allow the judiciary to move beyond simply deciding the immediate dispute that is before the court and absolutely obviously similar cases by analogy that might come up in the future. We go beyond this, to the creating of law by the formulation of a more general legal rule or principle that potentially applies to a wider number of future cases.
Secondly, the concept of ratio at the very same time functions to limit the creation of law by the judiciary. So, you have two sides - the creation side, and the limitation side. What is confusing is that at some level the two sides are in tension with each other, even incompatible.
First - the creation side. The final order of the court, that Mr. Dairy can keep the cow and need not return it to Mrs. Sellers, for example, is only directed at the immediate parties. We call this res judicata...a matter has been adjudged... a thing has been judicially determined. The court has settled the dispute between Sellers and Dairy and the court can enforce the order by invoking the power of the state. Once the appeal period has ended, we say this case is closed, even if the law subsequently changes. It is res judicata and cannot be litigated again.
But the court is not just doing that. The court is laying down a precedent. Perhaps the next case that happens of fraud and then sale to an innocent party will not be litigated because the precedent will apply, and the original owner will predict that he or she has no chance in court to recover the property from the purchaser. The whole system of precedent is based on providing a degree of certainty and predictability to the law. So, the judiciary is there to finally settle those disputes that have not been voluntarily settled, but in doing so the court also adds a precedent to the vast pool of precedents that effect not just the parties to the dispute but all of us. The court is making law, applying law, clarifying law, and modifying the law that extends beyond the immediate parties to the dispute.
Giving reasons helps us to use precedents because not only do reasons help give us insight into predicting what facts were important to the decision for purposes of analogy, the reasons also help us to formulate a rule which the case stands for.
So here is where the ratio concept comes in- we talk not just about case law as factual stories with results that should be consistent over time in terms of like cases having like results, we also talk about case law rules and case law principles. That is case #l stands for a rule or principle of law and we can apply that rule or principle of law to case #2 if it is a similar case. Now the reasoning by the court is crucial if we are going to be able to formulate this rule that the case stands for.
In the reasons for judgment, the court is most likely going to pronounce a rule of law that it is making or that it is finding in past cases to apply to the case before the court. We can illustrate this as follows:
Suppose the judge in the cow case says:
Mrs. Sellers, who gave up her cow to a “Mr. Slick” representing himself as a lawyer of substance and giving her a false cheque for the cow, cannot recover the cow from Mr. Dairy who subsequently bought the cow from “Mr. Slick”.
Let's call this statement #1.
Now compare that to this statement:
An owner of property who gives up possession of it as a result of fraud, cannot recover possession from a purchaser who has subsequently acquired possession of the property in good faith.
Let's call this statement #2.
Which of these two hypothetical statements made by the judge sounds like a rule to you, and why?
The first statement, even if we could use it by analogy in another case, is not generalized. The first statement uses the terms Mrs. Sellers, rather than an owner of property. Uses the term cow rather than simply property. Uses the specifics of impersonation of a lawyer and giving a false cheque, rather than the word fraud, and so forth. In contrast, we might treat statement #2 as a possible ratio of the case useful in law creation because it has general application beyond the specific facts of the case, while statement #1 looks more like the result of the application of a more general rule in the specific case before the court. The treatment of statement #1 as the ratio would effectively mean that the rule would never be applied again, because it had no generality at all. But statement #2 could apply to many cases in the future. So, the ratio functions creatively to extend the meaning of a case into a wider orbit of potential cases.
But now let's turn to the second point about the function of the ratio concept as a limitation device. Suppose Madam Justice Lex in the Milk case also says this:
An owner of property who loses possession in anyway whatsoever should never recover possession from a good faith subsequent possessor of the property.
Let's call this statement #3. Now how does this statement compare to statements #l and #2?
Well statement #3 is also general, like statement #2, so it could be seen as potentially a ratio of the case, right? Must we say that statement #3, the most general, is the ratio of the decision in the cow case, even if the judge in fact lays down statement #3?
No, we can say that it is an obiter dictum. This refers to statements that the court makes beyond the matter at hand. We could define obiter as all statements of rules or principles in the case that are not part of the ratio of the case because they go beyond the rule necessary for the decision. Whether a rule goes beyond the matter at hand is obviously not free of ambiguity and we will turn to this in a moment, but for now, why do I even want to label something obiter rather than ratio?
Suppose Madam Justice Lex in the Milk case said:
While I'm dealing with cows, it has come to my attention that Dairy Farmers are letting cows escape into neighbouring crop fields. I rule that farmers are absolutely liable to neighbours for any damages caused by their cattle.
Let's call this statement #4
Is there any doubt this statement #4 is obiter rather than ratio? No. It is clearly obiter because it is a statement of law that has nothing to do with the issues and result in the cow case at all. You might like statement #4, but it is clearly outside the range of issues that Madam Lex needed to deal with to decide the case of Sellers v. Dairy. The idea that we can actually decline to follow obiter statements acts as an important limitation on the judicial branch. The arguments before the court deal with questions related to the specific facts of the case. So the idea of the ratio is that it can only be the rule of law that the facts and legal issues in the case give rise to. This limits the power of the judiciary. The Cow case is not a precedent for rights to compensation for property damage by trespassing animals because the case does not deal with that on its facts. No matter how strongly the judge likes statement #4 it is clearly obiter, it is completely out of the range of relevant possible statements of law necessary to the decision in the Cow case.
The democratically elected legislature is subject to the division of powers under the Constitution Act 1867 and subject to the Charter of Rights which limits its powers, but nevertheless it can lay down 20 rules for the betterment of society. But this is not the case of judges. Judges can make law only incrementally from case to case. At least this is the theory. We will soon see in this course that the Supreme Court of Canada in particular has suggested that certain kinds of obiter from the court should nevertheless be binding on all of us, and furthermore the court is sometimes quite willing to lay down 20 rules that the court thinks will be for the betterment of society.
Nevertheless, according to traditional common law methodology, however we define the ratio, we should now be aware of one thing - to be a ratio, the rule or principle must be at least necessary to determine the results of the case - and that means on the facts and legal issues actually before the court.
But go back to statement #3- it is relevant to the issue before the court, isn't it? Yes, but here is an important point- statement #3 can be relegated to the status of obiter even if it is relevant, by another principle, namely that the ratio must not only be relevant to the facts and issues in the case but also must be limited by the particularity of the facts and issues. This means that statement #3 could be seen as too general and therefore as obiter.
Statement #2 is more general than statement #1, and statement #2 could be a ratio, therefore we see the creative side. But statement #3 as a general statement could be relegated to obiter for being too wide and general, even though the judge made the statement and treated it as the rule in the case. Thus, you see the limitation side.
But how do you determine then how general to create the ratio and what is too general?
IV. Formulating the Ratio of a Case
Now we must clarify further what we mean by finding a ratio in a case by looking briefly at four different approaches to the concept:
- “Posited Rule” Theory.
By this we mean the rule or principle of law that the judge or court lays down; that it posits, so to speak, as the sufficient ground for the decision. Now this is the loose and lazy way to deal with cases. You read the case and simply find the rule that the court treated as the ground for the decision, and all other rules of law mentioned by the court that add to the argument or are mentioned along the way are obiter.
For example, if Madam Justice Lex in the Cow case says statement #2 is the rule she is applying to the case, then that is the ratio of the case. Indeed, often you see in this loose and lazy view of precedent that you don't even put too much weight on which rules of law are ratio and which are obiter. You will see lots of cases where the judgment reads something like this: In the case of Smith v. Jones Mr. Justice Sopinka said... “a statement of law." In the case of Black v. White, Mr. Justice Laskin said: ... "a statement of law." In the case of Bloggs v. Scum, Chief Justice Freedman said… “a statement of law.” Therefore, in our case the result is X. In other words, propositions of law are simply lifted out of cases at face value to support the conclusion, with little if any careful analysis of case similarities in terms of factual analogy or consideration as to how wide or narrow the holdings should be stated.
Now this simple loose and lazy approach is sometimes sufficient for easier cases and may be used even in harder cases because the judge is trying to justify a particular result and throws down whatever propositions support the desired result. However, it does not get us very far in really understanding how to formulate a ratio, or how case law reasoning works. Now what is wrong with the posited rule theory? We have already established above that the ratio, properly so called, is limited by the issues and facts that are material to the result in the case. This means that the judge in the Cow case can posit what they think is the rule grounding their decision, but that rule may be stated at a certain level of generality, and future judges are not necessarily bound to accept the rule exactly as posited, if future judges have good reasons not to do so. Even The judge in the precedent case can hardly foresee all the possible factual and policy problems that might arise with the rule as it is formulated. A case is authority only for what it actually decided, rather than for everything it said.
Here's an absolutely fundamental point that you must realize. A posited common law rule in a case may look like a legislative provision, but it is not. It is wrong to think of case law reasoning in the following way: We take a precedent case and formulate a ratio (rule). Then we say that our problem case is similar enough to the precedent case to apply the rule. Then by deduction we apply the rule to the facts in our case. Rather, case law reasoning involves the combination of analogy and rule reasoning at every step.
We discover precedent cases by finding cases that are analogous to our problem case, but then we construct the ratio of the precedent case, not in isolation from our problem case, but with reference again to the material facts and issues of both the precedent case and the problem case. Then when a ratio is formulated, it is actually subject to being restated, with new exceptions, or with higher or lower levels of generality with reference again to the particular facts and issues of the problem case. This is to say that the ratio is not what the court says it is, but what later courts say it is with reference to new applications of the ratio. This is different from the interpretation of legislation where, as we will see in this course, there may be room to interpret legislation so long as the words can bear a variety of interpretations, but nevertheless the rule as written cannot be rewritten. Legislation is supreme and is posited in a kind of fixed verbal form that constrains the judiciary. But we do not need to treat the common law rules posited in cases as if they were legislative provisions. In the context of a new problem case, we have considerable flexibility to argue that the posited rule is stated at too low a level of generality and should be expanded to include our situation, or we could argue that the posited rule is too general and should be narrowed down to exclude our fact situation from it.
2. The “Materiality” Theory
The ratio is the rule or principle of law constructed out of the material facts and the conclusion thereon in relation to the material legal issues before the court. This theory was elaborated many years ago by Professor Goodhart.
First, note "constructed out of."… That is, we construct out of the material facts and the conclusion thereon a ratio. The ratio is not necessarily what the judge says is the rule in the case, nor does the ratio come directly out of the reasons given by the judge. The common law is not like statutory language. The ratio is constructed out of and is limited by the material issues the court has to decide. If there are, for example, three issues that the court has to decide, there may be in fact three different ratios in the case, one for each of the issues.
Similarly, you must look at the facts of the case. The judges clearly do not have the power to decide what is not before them to decide. Thus, the ratio in terms of its generality is limited by the material facts of the case. This relates exactly to what we have just looked at in terms of expressing the ratio in a general way but not too generally. The ratio should only be expressed at a level of materiality, not at any level of generality.
More controversially, Professor Goodhard suggested that in formulating the ratio we are supposed to be constrained by the precedent case by looking at the material facts as the judge in the precedent case saw them. However, there is of course a real problem between the interpreter expressing what are the material facts, as opposed to the original judge positing what are the material facts. Why should we be bound by the judge's identification of the materiality of facts, but not bound by his expression of the generality of the rule?
Supposedly, the fact of fraud is material in the cow case. So, the ratio of the case should only deal with fraud and not something else like theft, which is a factual matter not before the court to decide. But suppose the judge says that how possession is lost is not a material fact and what is material is the innocence of the current possessor? Would we be bound by that in formulating the ratio?
- The “Predictive Range” Theory
Now the idea of the predictive range theory is that you must not think that there is only one ratio that a case stands for on any legal issue, as if we were trying to find a buried treasure in the case, or a needle in a haystack. Rather what you have is a range of possible ratios from the most narrow to the most wide, and all we can try to do is predict where a future court in a new case will draw the line on the generality range.
Suppose you have some material fact-issue about how the original owner lost possession. This factor of loss of possession is going to be part of the overall ratio of the cow case and also of the lawnmower case.
Perhaps you lose possession by a sale through a bad cheque, or you lose possession by a sale with only a promise to pay, or you might lose possession by a loan, or you might lose possession by a theft so that we might envision this as a narrower to a wider expression of this material fact in the case.
Part of common law reasoning includes inductive reasoning. There may be a number of past cases and when we put all these cases together and look at the facts, holdings, and results of each case with reference to the others, we may then construct a more generalized statement or principle of law that explains all of these cases together. Sometimes this process is called fusing cases, or the process of synthesizing cases.
4. The “Purposive” Theory
All of these different theories about establishing the holding of past cases have some value and some difficulties. One last theory that I want to mention is what I call the purposive theory, and later in this course you will see how this theory comes out of one of the most powerful approaches to the interpretation of legislation. When you have ambiguity or other difficulties in interpreting a legislative provision, you want to identify, if possible, what the purpose of the legislation is. What does the legislation aim to accomplish in the world? It makes sense, and shows respect for the democratic legislature, to interpret the rule in the way that best advances the purpose, rather than frustrates it. The same consideration may be given to your formulation of the ratio. If you have choice as to how broadly or narrowly to express a rule, you may well receive some help by consideration of the possible purpose(s) of the rule. If the problem case has some material difference, but the rule in the precedent case has a social purpose that is just as important in the context of the problem case, we might well expand the rule to cover the problem case. The reverse argument might be made that even if the precedent rule seems at first blush to cover the problem case, there are differences in context or facts where the purpose of the rule would not be advanced, and the rule should be read down so as not applicable to the problem case.
5. Plurality Judgments
There are special considerations that must be given when attempting to identify the holdings of appeal court judgments that involve multiple judgments from a bench of nine, or seven, or five, or three, or sometimes from an even numbered bench that splits down the middle in a case. This is a very important topic, and I will address these matters in class.
V. WHAT ABOUT LEGISLATION?
It would be quite wrong to think that judge-made law through case-based reasoning is still the dominate form of law within the common law system. It is still an important source of our law, but I would argue that in the last century we have witnessed a proliferation of legislation. This movement to legislation as a source of law is so overwhelming that periodically we wonder if the common law might eventually be dead, as legislation takes over.
Remember too, that we have the doctrine of the priority of legislation. Subject to constitutional validity, legislation can overrule the common law found in case law. If a common law rule is inconsistent with a legislative provision that clearly covers the field, the common law rule gives way. Legislation has the legitimacy of democracy. Common law used to claim the legitimacy of reason, but we have subsequently lost faith in objective reason. We only have subjective ideology and power politics now.
But in a section in this course we will look at the way in which the judiciary still has a primary role to play when dealing with legislation, because disputes arise as to the meaning of legislation and courts lay down precedents dealing with interpretation.
Of course, the most obvious example of the primary role of the courts involves constitutional interpretation, because the provisions of the constitution, particularly the Charter, are so open ended that in effect it is the judiciary that establishes the scope and limitation of rights from case to case utilizing case-based reasoning rather than deductive rule-based reasoning. One of the major themes in this course will be the legitimacy of the court, particularly the Supreme Court, in making law for society, which is simply inevitable given the open-ended nature of the Constitution. The text of the constitution is not particularly constraining in most cases, but rather it is as if the Supreme Court was asked to blow air into balloons. At some stage the balloons can be blown to such a size that they pop. At the other end of the scale, the court might not blow any air into a balloon at all. If the balloon pops or has no air in it at all, we say the court has gone beyond the text or has not followed the text. But subject to this, you can blow a small balloon all the way to a very big balloon and the text does not constrain the judiciary at all. Judicial decision making under the Charter is politics in another mode.
VI. POLICY?
Lurking behind all of these abstract formalities about following precedent by factual analogy and rule-based reasoning is the reality that courts are not blind to consequences and social context. Much of legal reasoning, particularly at the appellate level, deals with policy, just as much as it does with legal principles found in the pre-existing sources of law- precedents and legislative enactments.
By policy I do not mean the kind of purposive arguments that examine the policies behind existing rules of law. Indeed, memorizing rules of law will not get you very far. It is when you come to some understanding of the purposes and policies behind the bare rules that you will start to learn the law.
However, by policy I mean rather that lawyers regularly argue about what the law should be, just as much as they might argue about what the law is. Some judges may see their role as primarily finding the law that exists and applying it, whether they like it or not. As much as possible, creativity should be left to the legislature. Other judges may embrace an activist role. Like the late Lord Denning, they believe that they can create a better world by reforming the law whenever possible. All judges have ideological preferences. Some set them aside, or try to, in the face of the law as it is; others consciously attempt to change law to fit their ideology of what a good society should be. I expect that you will develop your own views in law school as to what you believe the nature and scope of judicial creativity and constraint should be.
Sit down some late night and watch the oral arguments at the Supreme Court of Canada that are regularly televised and broadcast on CPAC. Take out your notebook and try to summarize in a number of cases how much time the lawyers spent on issues of fact, how much time on arguing the meaning of past precedents or legislation, and how much time was spent on arguing what the law should be- in terms of interests to be balanced, consequences to be achieved or avoided, and moral values to be advanced or rejected. I would suggest that your exercise will lead you to see that today legal reasoning cannot be separated from policy analysis.
VII. THE MYTH OF A JUDICIALLY CENTRED LEGAL SYSTEM
The focus of this legal system course, partly governed by the very limited time available for it in the curriculum, will be on topics closely related to courts and the judiciary. -Reasoning with precedent cases and interpreting statutes; the judicial process in terms of fact finding, the role of juries in the judicial system, alternative dispute resolution, the independence and accountability of the judiciary; and various jurisprudential theories about the proper role of the judiciary. I think these are all very important aspects of understanding the legal system, but it should be noted that this judicial focus is also very limited, and an understanding of the legal system ideally would encompass many more topics.
By way of conclusion to these introductory remarks, (and a sincere congratulations to you for reading this far), I will only briefly mention one of many legal institutions, processes, actors, and contexts that are missing from the picture when we focus on the judiciary. I regret that we will not spend time on the legal profession and the law office as a crucial part of the legal system. A lot of law is applied and made in the law office and not in court. Many, if not most, lawyers never see the inside of a courtroom after their call to the bar, and even the call to the bar may take place outside of a courtroom (in a concert hall or a church or whatever). What are these lawyers doing?
Preventive Law and Transactional Law
I would point out that lawyers play a very big part in our society in the prevention of disputes in the first place. We have the whole field of law that we call preventive law and planning law and transactional law. Lawyers are engaged in transactions. This part of lawyering, involving the prevention of disputes in the first place, is seldom visible to the public, but in fact amounts to the bulk of what lawyers do. Most lawyers are not litigators, because their work involves other kinds of lawyer transactions that have to do with what I call the nonadversarial legal process. The goal of the lawyer is to solve problems, not win cases. The goal of the lawyer is to find consensus and to create channels of cooperation.
How do lawyers prevent disputes? People want to engage in various activities. They want to go into business with other people and form a partnership or corporation, or they want to buy or sell some property, or make a will or trust in the event of their death, or they want to adopt a child or change their name, or whatever. Or people are already engaged in some enterprise and a host of issues arise about how the enterprise can proceed in terms of environmental impact, or zoning, or labour legislation, or regulatory compliance, or whatever. Not only do private institutions and individuals want to do things, but there are a host of public institutions and agencies that want to do things as well- government boards and tribunals and departments. All of these transactions and enterprises, whether public or private, involve law and lawyers working in law offices. Lawyers channel activities through law in a way that prevents disputes from arising about these activities.
Problem solving in the law office involves counselling clients. We try to understand the goals, values and aspirations of the client and we work with the client to identify the various legal options that are available to reach the goal in question, and then we help actualize the option that the client has chosen. We may need to negotiate with other parties, or draft legal documents, or channel a matter through regulatory agencies and so forth.
Now one fundamental fact about all of these matters which I am calling preventive law and non adversarial legal process, is the distinction between disputes about something that has happened in the past, (a statute has come into force and now someone says it is unconstitutional, a crime has allegedly been committed and someone is charged with doing it, a contract has allegedly not been fulfilled, someone was injured by someone else and now claims compensation and so forth), versus activity by lawyers in structuring things to happen in the future. For disputes involving stuff that has happened, we talk about the role of law, lawyers, and the legal system as a system of dispute resolution, but for the facilitation of action to be taken or action that is not allowed to be taken, we talk about the role of law, lawyers, and the legal system in dispute prevention.
Now when we think about these forward-looking activities, which I call the non adversarial legal system, where future activity is only in contemplation, rather than already completed, we must still acknowledge that we are often dealing with conflicting interests. Having conflicting interests is not the same thing as having a dispute. The presence of conflicting interests does not mean that we must adopt an adversarial stance of maximizing one interest to the exclusion of others rather than trying to harmonize all the interests. Lawyers want to be deal makers, not deal breakers.
It should also be noted that the role of lawyers includes the prevention, not just of disputes, but the prevention of illegality. Lawyers do not just tell clients what the law requires, and of course we acknowledge that good faith arguments can be made as to what the law requires, but in any event, lawyers also prevent illegality by refusing to do what is clearly illegal to do. It is fundamental to the legal profession to be reminded in day one at law school that we do not just represent clients, we also represent the law and have a higher duty to the law. (I have argued elsewhere that this duty to the law may not be absolute in some contexts of extreme injustice, and that even lawyers may in some circumstances engage in a kind of civil disobedience, but this is topic that would require a lengthy debate and defence.) For now, lets say that the job of the lawyer is to apply the law in the law office. When your client wants to do something that is illegal you must refuse to assist him or her. The legal profession has been entrusted by the public with the task of upholding and improving the law and the justice system, not with the task of helping clients to break the law and evade the law and destroy the spirit of the law. Your client may be the one who is paying you money, but he or she is not the party that grants you the license to practice law. You are an officer of the court first, and then only secondarily, do you represent particular clients. Lawyers who assist their clients in breaking the law not only break their professional trust, but they are also subject to disbarment and often end up in a jail cell along with their clients.
Finally, when we talk about channeling activities through law as a way of preventing disputes, we do not just mean dealing with the law that already exists like the land titles systems, but we also mean that law is made by lawyers right in the law office. There is a pre-existing law about contracts, but the actual contract as a body of legal rules in a particular case is something that we actually draw up. The act of formalizing a relationship into rules and principles of law as drawn up in the law office prevents future disputes just as much if not more so than the application of legislation and case law to the activity in question.
To say that lawyers are involved in peacemaking by preventing disputes in the first place through giving legal advice and channelling activities through law seems like a good theory. The problem is that legal services are not distributed equitably in our legal system. Many people cannot afford to have their disputes litigated in court, much less to have good legal advice to prevent disputes or better their lives. All across the country we have witnessed the gutting of legal aid. An abundance of lawyers spend their lives working for the rich and powerful individuals, corporations and interest groups. Furthermore, we have already seen that law is not a simple system of pre-existing rules, but rather law is malleable and is manipulated to serve some interests at the expense of other interests. Is our law just? Is our legal system just? Whose interests does it serve?
