A Ramble around the Bramble Bush

Jurisprudence on Precedent Law

Proposed Submission: the foundational premise in the recent Garner & Co book on legal precedent, that Common Law and Civil Law systems have different approaches to precedent, is flawed. However, since it is only affects the opening and closing paragraphs of the book, the rest of the 700-plus pages of the work remains a useful mine of information relating to the (US) practice and procedure of precedent, and is presented in a well-chosen and legible typeface as well.

The topic is rather large for a single posting session to accommodate all edits, so some preparatory notes are parked here (some third of them) for convenience, prior to re-assembly at a later date into a more coherent text.

In essence, a lack of distinguishing, at the doctrinal level, between law and rules leads to a misleading comparison of dichotomy between two systems. However, since procedure rarely examines doctrinal foundations, this misleading picture is of little consequence in practice (other than leaving some first-years, – on the rebuttable presumuption that the work is not deliberately intended to be a partisan work –,  unimpressed with the quality of the analysis and research, perhaps).

Any hoo –

***

“a prudent guide for future decisions”
—  Bryan A Garner et al, The Law of Judicial Precedent, (2016) [ThomsonReuters, 2017], p 5.
ISBN 9783014634207

***

In a Monash University Law Review article, the authors list several factors linked to a higher correlation of one jurisdiction’s Supreme Court citing another jurisdiction’s Supreme Court’s decisions:

• geographical proximity
• socio-economic complexity
• reputation of the Court

(Russell Smyth & Dietrich Fausten, “Coordinate citations”, 34 Monash U L Rev 34)

So, understandably, just from the caseload volumes alone, the Supreme Court of Norfolk Island won’t be as frequent a source of citations as the Supreme Court of Tasmania would be,  and likewise both compared to the Supreme Court of New South Wales.

Another factor, at least in the United States, seems to be also in play, if the case presented in a book on precedent by Garner and a dozen others is to be believed: namely, “strong doctrinal commitment” (p 16). Civil Law systems and Common Law systems have different approaches to precedent, is the thesis. Although, despite this, there has been “a palpable convergence of technique” (p 17) and “the world has given rise to hybrid systems” (p 17).

The case is presented that Civil Law systems, through their history and development, have no precedent: “Roman law had no system of legal precedent” (p 16), citing Buckland (“Roman law had no system of precedent”) and Jolowicz in support: “Justinian definitely forbade the use of precedent” (p 16 n 56: Historical Introduction to the Study of Roman Law, 1952, p 569).

The key word is ‘system’; there certainly was preceden. And forbidding the use of precedent implies there is precedent in the first place.

A GoogleBooks Snippet View of Jolowicz gives the quote reference as p 354 n4: “Justinian definitely forbade use of precedents in C.7.45.13 – non exemplis sed legibus judicandum est – but see also 461.” [The Latin translates as: Not by precedent (‘exemplis’=example) but by the law is judgment to be made.]

The sentence prior to that one is: “Precedent, although unrecognized in the lawyers’ list of sources [of law], is well enough known as exemplum or res judicata  to the rhetoricians (e.g., Quint. Inst. orat. 5.2.1 …)”.

Another GoogleBooks search, this time for the Buckland quote, gives a page on from the colonialsociety.org site (Colonial Society of Massachusetts, “Volume 77: Portrait of a Patriot, The Major Political and Legal Papers of Josiah Quincy Junior, Volume Four”, ‘The Reports’), which under “Note: Page 138 ‘Videbatur’” has: “On Roman law ‘precedent,’ which was not systematic at all, see W. W. Buckland…” and for the Jolowicz 569 cite the Quincy page has: ‘(Precedent as “exemplum”).’ The note ends with “My thanks to my distinguished colleage, Charles Donohue Jr.”

In Australia, the word ‘precedent’ also refers to the boilerplate text of a standard legal letter and suchlike: “2. A document or form used as a basis or template by lawyers as a guide for drafting in analgous situations.”  (Butterworth’s Australian Legal Dictionary, [2009], ‘precedent’. ISBN 9780409307221).

A precedent in this sense is a ‘form’ or ‘legal form’ in the US and a ‘style’ in Scotland (Garner’s Dictionary of Legal Usage, 3rd edition, [Oxford University Press, 2011], ISBN 9780195384208).

An old term for the  same thing was an ‘exemplification’, like in the case of Kempton v Cross (http://www.worldlii.org/int/cases/EngR/1766/115.pdf) where there was an exemplification under seal which said “that on the         day of            a power was issued to                    to administer the goods                     deceased, according to his will, …”, with the will attached, which was taken to be sufficient evidence to prove the administrator’s title.

Thomas Wood, in A New Institute of the Imperial or Civil Law (1730), Book IV, chapter I, on the duty of a judge, could be using ‘precedent’ in both senses, when he translates Justinian as (p 295):

A line of cases makes a custom. Intriguingly, a line can be made up of a single case, like a line of traffic can be a single car.

The mechanical application of a template decision is not desirable. On the other hand, it cannot be imagined Justinian is saying to carry out the duties of a judge inefficiently or unjustly.

“it is clear that the influence of actual decisions in the development of the law was at all times considerable. The Romans were not, any more than other people, free from the feeling that if a thing has been done once that  is in itself a reason for doing it again.

Even Justinian, who codified the pre-existing mass of opinions and legislation in his digest, recognized in his students’ textbook the Institutes, the existence of mos judiciorum – judicial practice and custom (Just. iv. XI. 6.), or, according to Jolowicz, ‘ordinary legal methods’ (Lectures, p 222).”

—Ben Atkinson Wortley, Jurisprudence

***

What does a disguised spy look like?

On Ben and Holly’s Little Kingdom last week, in the episode ‘Spies’, the fairies and elves of the Little Kingdom were competing to build a boat for King Thistle, one that wouldn’t get him laughed at by the Marigolds on Boat Day on the lake (long story).

The result was a big Viking longboat, with shields along the side, a hippopotamus head (that breathed fire), and duck legs, and chicken wings.

During the building phase, spies  (Barnaby the Elf, and the fairy Strawberry) were sent at various times into the opposing camp to spy out  progress, and they were equipped complete with a finishing-touch ‘disguise’ (a pair of Groucho Marx novelty glasses, with nose and moustache). The disguise more-or-less worked, depending on who was being asked.

Syntax and Grammar for Motifs

Odalisque

“the rules and procedures for the representation [of the odalisque]”

— Jean-Pierre Brodier, L’odalisque, ou la représentation de la femme imaginaire, (2005) [L’Harmattan, 2009] (The Odalisque, or, Representing the Imaginary Woman), p 12.

ISBN 9782747597074

“oda = room, chamber; odaliq = chambermaid” (Brodier, p 15) is different to ‘odalisque’ in English (or French).

Constitution

“[In Australia] There was none of the struggle against ’oppression’ and ’tyranny’ which, to the drafters of the American Bill of Rights, characterised their achievement of independence.”

— Jennifer Clarke, Patrick Keyzer and James Stellios, Hanks Australian Constitutional Law: Materials and Commentary, 9th edition, (2013) [LexisNexis Butterworths, 2013], [10.1.7] (p 1127).

ISBN 9780409331813

Counsel’s antics

“Finally, Australian courts do not like counsel to adopt the style of theatrics you may see on American law television shows. Stand bythe lectern and stand upright.”

— Richard Krever, Mastering Law Studies and Law Exam Techniques, 7th edition, (2011) [LexisNexis Butterworths, 2011], p 95.

ISBN 9780409327274

Can speak Spanish

“Berk-Seligson (2000) gives examples of police officers in the United States who, despite their inadequate Spanish language skills, insist on asking questions in Spanish, making it very difficult for the suspects to understand.”

— Sandra Hale, “Court interpreting: The need to raise the bar: Court interpreters as specialized experts”, inMalcolm Coulthard and Alison Johnson (eds), The Routledge Handbook of Forensic Linguistics, (2010) [Routledge, 2013], pp 440-454, p 444.

The plot-device

“The allure of the simple can be seductive”

— Stuart Ewen and Elizabeth Ewen, Typecasting – On the Arts & Sciences of Human Inequality:

A History of Dominant Ideas, (2006/2008) [Seven Stories Press, New York, ], p xvii.

ISBN 9781583227763

“the major resource of the discipline Liddell-Scott-Jones”

— Michael Clarke, “Semantics and Vocabulary”, in Egbert J Bakker (ed), A Companion to the Ancient Greek Language, (2014) [Wiley Blackwell, 2017], pp 120-133, p 123.

“LSJ is muddled and treacherous”

—Clarke, p 132.

“Richard the Lionheart (who spoke French)” — Charlie Higson, “Introduction”, in David Whitaker, Doctor Who and the Crusaders, (1966) , p x.

“In the historical film conventions of the day everyone just spoke English, and they speak it with a funny accent if they are foreign.”

— Higson, p x.

“Although widely discredited, the idea that faithful interpreting equates to word-for-word translation is still common among some legal practitioners.”

— Sandra Hale, “Court interpreting: The need to raise the bar: Court interpreters as specialized experts”, in Malcolm Coulthard and Alison Johnson (eds), The Routledge Handbook

of Forensic Linguistics, (2010) [Routledge, 2013], pp 440-454,p 445.

Confession

“the so-called confession – a speech act which always seems to generate an expectation of sincerity”

— Gillian Grebler, “False confessors: A jihadi heart and mind? Strategic repackaging of a possibly false confession in an anti-terrorism trial in California”, in Malcolm Coulthard and Alison Johnson (eds), The Routledge Handbook of Forensic Linguistics, (2010) [Routledge, 2013], pp 315-332, p 330.

Common Law v Civil Law

“a wall of miscomprehension”

— The Hon Justice James Douglas (SC Qld), “Trusts and their Equivalents in Civil Law Systems”, in Malcom Cope (ed), Interpreting Principles of Equity: The WA Lee Lectures 2000-2013, [The Federation Press, 2015], pp 317-327, p 323.

“But the system is one of preference, not dogma. Ultimately, the aim is accurate fact-recovery.” — Andrew Ligertwood & Gary Edmond, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts, 5th edition, (2010) [LexisNexis Butterworths, 2010], [8.35] (p 746).

ISBN 9780409324808

“It is often said that one of the most important functional distinctions between common law and civil law systems is that the latter have no doctrine of binding precedent. However, the general reasons for following earlier decisions (as outlined in the opening paragraph of the entry for binding precedent) apply to all legal systems. Therefore, it is not surprising that the courts of the legal systems of continental Europe routinely follow their own decisions, even though they are not bound to do so. It follows, therefore, that any distinction between legal systems based on whether they embrace a doctrine of binding precedent must be treated with a degree of scepticism.”

— Ian McLeod, Key Concepts in Law, 2nd edition, (2010) [PalgraveMacmillan, 2010], ”Common law” (p 46).

ISBN 9780230232945

13

PF

pseudologica fantastica

“PL: could be characterized by the following: ‘(1) the stories are not entirely improbable and are often built upon a matrix of truth; (2) the stories are enduring; (3) the stories are not told for personal gain per se and have a self-aggrandizing quality; and (4) they are distinct from delusions in that the person when confronted with facts can acknowledge these falsehoods’ ”

Bryan H King and Charles V Ford, “

Pseudologia Fantastica” (1988) 77(1) Acta Psychiatrica Scandinavica 1-6 at 1

— Ian Freckelton, Scholarly Misconduct: Law, Regulation, and Practice, (2016) [Oxford University Press, 2016], p 141 n 453.

ISBN 9780198755401

Precedent v Appeal Court structure

“Bicanin 1976: A trial is not – although it is sometimes treated as if it were – a mere condition precedent to an appeal”

— John Anderson,Uniform Evidence Law: Text and Essential Cases, 3rd edition,[The Federation Press, 2016], [2.190] (p 49).

ISBN 9781760020521

Orality

With jurors being unable to read or write (back in the old days), documentation wouldn’t have worked, so the natural solution was to have the case presented orally. This in turn made it “difficult for appeal courts to re-establish the facts”. Likewise, with the binding effect of precedent, uniformity of law comes about “without the need to allow appeals in all but exceptional circumstances”. — from Mathias Siems, Comparative Law, (2014) [Cambridge University Press, 2014], [c3, B.2(a)] (p 50).

ISBN 9780521177177

Scambling

and switching on paragraph numbers

Legal writing (like judgments) has numbered paragraphs, for detailed pin-pointing of information, and the occasional (unnumbered) heading. Headings help a bit, especially in long judgments, but since they are an interpretation of the structure of the reasoning and not the interpretation of the structure, headings take on an ancillary role only, as an aid to navigation.

There are numerous ways to achieve numbered paragraphing: making the document one giant enumerated list, with each paragraph being an item in the list, is one way (simplistic, but workable).

Another way is to count the paragraphs.

Latex by default has numbered headings and unnumbered paragraphs. To re-style it into legal mode, a paragraph counter can be created, say something like \p, to keep it short to save typing:

%Numbered paragraphs
\newcounter{parno}[paragraph]%% numbered paragraph
\renewcommand{\theparno}{\arabic{parno}}
\newcommand{\p}{\stepcounter{parno}\noindent[\theparno]\ }
\setcounter{secnumdepth}{4}

This switches off paragraph first-line indenting, puts square brackets around the number, and adds a space after it.

To stop numbers like 1.1.1.1 appearing (paragraph numbers are the fourth level down), the paragraph number can be de-linked from the level numbering coming in from one level above:

%delink paragraph counter from being reset by subsubsection
\usepackage{chngcntr}
\counterwithout{paragraph}{subsubsection}
\renewcommand{\theparagraph}{\S\arabic{paragraph}}

And headings (meaning sections, in the case of an article document-class) can have their numbering switched off by setting to nothing (being {}):

%remove (printing of) section numbering
\renewcommand\thesection{}

Got vertical text working: for Japanese (using the lualatex-ja package, compiled under lualatex, rather than xelatex), going right-to-left. And ruby-text (furigana):

Vertical also works for Chinese characters, of course.

And Mongolian or Manchu, under the mls package (which gives MonTeX), besides Cyrillic and Roman scripts, can do vertical too, left-to-right:

Painters have an exercise to stretch their skills: painting an egg on a piece of paper. Uses up a lot of titanium white. The legal equivalent , in comparative law/translation, would be trying to render the phrase ‘common law’, and its near-equivalent and simultaneous not-equivalent “droit commun”, from French into English.

Here is Carbasse (via a quote typeset in Latex, to capture the visuality of the original printing):

In French, the phrase “common law” has a shade of meaning and a perspective (and field of denotation) that it does not have in English, and “droit commun”, as a (knowing) near-miss gloss, does not exactly mean ‘common law’ (in connotation) like a literal translation of ‘droit commun’ would sound like it would give. The Paris perspective of London.

Almost the linguistic equivalent of an Escher knot.

And he [the Chief Justice] said, upon the observation upon 4 Mod. see the inconveniencies of these scambling reports, they will make us appear to posterity for a parcel of blockheads.

Once there was a law report of a case (Hodge v Clare), which seemed to be saying that pleading that a party was, in modern terms, ‘absent’, did not necessarily mean ‘absent outside of the jurisdiction’, like all other cases had confirmed up until that time.  But the law report itself was found at fault, because:

upon search of the roll in that case [the official parchment roll recording the case], there is a full averment, that the person, during whose absence, was in partibus transmarinis [in parts overseas], and no ground for the objection.

Hence Holt CJ’s observation about ‘these scambling reports’. – Slater v May, 2 Lord Raymond 1071.

Would we perhaps call it a ‘fake report’, nowadays?

With the colored letttrine Latex package, and a suitable font like EB Garamond, which has empty decorative initials (acting like a background) and separate foreground letters, interesting effects can be achieved:

Similar effects could be achieved with CSS in HTML, but printing commands can do optical effects like lensing, and it will probably be a while before such things are coded up as standard-issue into browsers.

Vita is indeed brevis, and art longa.

Learning is a long time getting

Vita brevis, Ars longa

 “the words of Doderidge J., written when  legal literature was but a fraction of its present bulk”  —  ATH Smith, Glanville Williams: Learning the Law, 14th edition, (2010) [Sweet & Maxwell / Thomson Reuters, 2010], p 72. ISBN 9780414041738   Doderidge (Sir John), The English Lawyer (1631), p 38 [GoogleBooks]

Many Sheep

Agrarian contribution to law

Sheep are a part of legal history, and have influenced court procedure significantly, the reason being that sheep are finite in number, and, in the days before Marco Polo had brought back from the lands of the Khan an invention called “paper”, they (being the sheep) supplied the hide industry, which in turn supplied the writing industry (such as it was, back then), which in turn allowed Chancery clerks and other literates to endorse (‘write on the back of’) rolls of parchment, annotating them with details of law suits brought and decided in the King’s courts.
So space was limited.
On the question of whether a plea should fail for lack of sufficient particulars (say, of the sums owed), it was eventually decided (paper taking a while to reach the Records Office) that such a plea was good, because otherwise there would be a ‘stuffing of the Rolls’.

A likely story.

The nominate report:

The English Reports:

Source:
Church v Brownewick (19 Car II, 1667) 1 Sid 334; 82 ER 1140; [1714] EngR 120
CommonLII

“Sometimes a plea is denied, as one seventeenth-century reporter who thinks he is writing in French, puts it: pur avoider le stuffing del rolls ove multiplicity del matter
— Charles Donahue, JR, “The hypostasis of a prophecy’: legal realism and legal history”, in Matthew Dyson and David Ibbetson (eds), Law and Legal Process: Substantive Law and Procedure in English Legal History (2013), [Cambridge University Press, 2013], pp1-16, p 15.

The Bishop of Exeter & AL’ v Sampson Hele [1693] EngR 8; [1693] Shower PC 88; 1 E.R. 61 (1 January 1693)

Of course, electric sheep have infinite backs:

This judgment is unavoidably lengthy and has taken some time to prepare because the Court has been required to answer hundreds of questions of law that have been stated in the various appeals as well as consider the applications for judicial review. The Court has received some 20,000 documents and hundreds of authorities and has had to consider over 3,000 pages of submissions.

Ortmann v United States of America   [2017] NZHC 189

On the trail of

quest for source

“The late Professor Oswald Prentiss Backus told me shortly before his death that he had discovered on an island in the Baltic a volume which might have been a Scandinavian prototype of the Russkaia pravda, but I have heard no more of this since his demise.”

— Richard Hellie, “The Law”, in Maureen Perrie (ed), The Cambridge History of Russia: Volume I – From Early Rus’ to 1689, (2006) [Cambridge University Press, 2006], pp 360-386, p 361 n 2.