Established Precedent

Incentive to vary from custom = none or not much

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Literature studies

To say that Latin, French and English were in use in England in mediaeval to early modern times is not to imply that there were no other languages. There was, for example, Hebrew, as in the Alexander saga, where, opening up the modern translation side at a random page, we read:

 

“Afterwards Alexander sent the following letter to all the provinces of the kindom of Persia: “Alexander, son of the god Ammon and son of Queen Olympias, to all the princes and peoples in all the provinces of the kingdom of Persia …” ”

—  Israel Kazis, The Book of the Gests of Alexander of Macedon: A mediaeval Hebrew version of the Alexander Romance by Immanuel Ben Jacob Boneils, (1962) [Print-on-Demand* 2016] (Sefer Toledot Alexandros ha-Makdoni), s 74 (p 113).
ISBN 9780915651344

 

Aside from the reference to ram-horned deity, in form and structure, this letter’s greeting is just like a Common Law writ, with the mediaeval king of England writing to the sheriff of a county and charging them with a duty in a legal matter. And the same wording carried through centuries.

 

Diplomatic letters between ancient kingdoms thousands of years earlier also followed similar patterns, or precedents.

 

Copying an earlier example as a template makes good sense. Over time, though, archaic language features (words, syntax, sentence structures) barnacle themselves into the process and then conjectures naturally arise as to why the language has to be archaic.

 

It “besots lawyers and nonlawyers alike”  —  Bryan A Garner, Garner’s Dictionary of Legal Usage, 3rd edition, (2011) [Oxford University Press, 2011], “Myth of Precision” (p 596).
ISBN 9780195384208

with Garner assigning it to ‘the myth of precision’ (understandably enough, since a straw man is needed as antagonist in his quest for Plain Language).

 

The technical term (in some jurisdictions) for an earlier exemplar letter/deed/contract/lease/writ in general/etc is ‘precedent’.

 

“In England, Australia and Canada, lawyers use precedent to refer to a legal form. American lawyers speak of a form, while Scots lawyers speak of a style.”  —Garner’s, “Precedent D.” (p 696).

“in Scots law, a model form or precedent of a deed or pleading”  —  “Style 3” (p 849).

 


* As an aside, not infrequently, self-printed and print-on-demand works start on the wrong page (2, instead of 1), thus throwing everything on what would have been odd pages onto even pages, and vice versa. Whether readers or the person pressing the Print button notice is another question.

All at Sea

The thread of the silver oar

Scots law and translating

Scots law provides ready-made terminology for translating legal material from Italian, French, Spanish and similar systems.

A Scots court has the pursuer and the defender, ‘repels the reasons’ of a party (or sustains them), ‘assoilzies the defender’ (the ‘z’, representing the letter yogh ȝ because of its similarity in shape, is silent) and so on. These are all terms that are almost identical in Italian.

In English, take that last item for example: it would be ‘assoils the defendant’ (from Norman assoiler) to match with the Italian assolvere (to acquit, and with related shadings of: absolve (the cognate word), pardon, forgive, discharge, release, clear).

And on the analogy of the Scots Advocate Depute, Sheriff Substitute, and Procurator Fiscal, the Italian sostituto procuratore can be translated as Proctor Depute or Proctor Substitute. (Side note: The Queen’s Proctor matching up with the Treasury Solicitor, in terms of rank and role.)

For technical accuracy, I would recommend using the Scots matching term, rather than ‘free-translating’ into (English, jurisdiction-dependent) almost-equivalents.

 

Thread and Tapestry

Calling England and Wales a Common Law jurisdiction almost sounds as if it has always been a Common Law jurisdiction, and only a Common Law jurisdiction.

Yet Civil Law existed in England for centuries and so there were proctors and advocates (as in the historical Doctors’ Commons), eventually replaced by their Common Law counterparts, the barristers and solicitors, as the Common Law courts expanded their ambit and purview, and the Civil Law jurisdictions dwindled and shrunk like patches of remnant Old Forest.

Over time, the Civil Law courts were either forgotten about (like the High Court of Chivalry), or swallowed up comparatively recently in the Judicature reforms (like Admiralty, or those dealing with Probate and Marriages), or left alone (like Coroner’s Courts, with their inquests following inquisitorial procedures).

A history of Common Law in England is different to a history of law in England.

In a similar way, in Literature studies, not one, but three major language streams were running concurrently in England until, also, comparatively recently: English (with its Old and Middle), French (especially the Anglo-Norman version earlier and then Parisian import later), and Latin (for scholarly and matters of import). Chaucer straddled all three, and Shakespeare had memory of them.

Probably Law French could be included somewhere in the mix, as well. (And running quietly along, like hidden small brooks, Cornish and Breton and Welsh and so on.)

 

===

It almost sounds as if legal studies would benefit from an ‘emanations of the Crown’ approach, with the history of each ‘emanation’ following its own thread and its intertwining with the others.

So, for example (and simplifying greatly), the High Court of Chivalry was the Lord High Constable’s court (and ran until he got the chop, literally, and afterwards the Earl Marshall had to preside as its president); and Equity, of course, originated with the Lord Chancellor’s court (plus they had the scribes who write and issue the parchment-work and later paper-work that ran the writ machinery used by the entire system). And Exchequer, too, for fiscal matters. And the Lord High Admiral.

The National Archives page, on the Black Book of the Admiralty, says:

The languages used can be dual text (pages side by side) in Old French and contemporary English, Latin alone, French alone or English alone.
NatArch

 

The bigger picture is the one worthwhile starting from, to get the perspective.

The current system is shaped not only by its own history, but by its interactions with the shapes left behind by other systems. And that applies not only linguistically, but also legally.

 

An Ornament of One

When is a borderline on the other side?

At this time of year (late spring, early summer), there are some garden cypresses visible along the street in peoples’ front-yards which produce juicy cones of such an attractive flavour to birds of the parrot kind (such as corellas, and sulphur-crested cockatoos) that flocks of them divert especially to have an early-morning breakfast feast.

The trees are dark green and and shaped like a picture-drawing Christmas-tree, and a flock of snowy-white birds perched on the sides of the tree look like ornaments.

I hereby propose a new collective noun: `an ornament of corellas’, or `an ornament of cockatoos’.

Even one perching cockatoo gives that effect.

Which raises the idea: can one bird be a flock?

Certainly there is an implication. Cockatoos and corellas and rainbow lorikeets and so on are gregarious and move about in family groups and larger, chattering and gossiping all the while, so the presence of one necessarily implies the presence of others somewhere nearby (within coo-ee, in fact, since they keep in touch by sound, and, for the larger birds like the cockatoos, that sound carries a long way).

A Flock of One

A membership of one constitutes the category (mathematicians would go one step further with their null set: a membership of none constitutes the category).

One person doing manual work makes it a factory: Griffith v Ferrier 1952 SC(J) 56.

The question then moves to: what is manual work?

Language

Language is vague, by its nature.

“what really is a chair”

— Janny Leung,
“On the edge of reason: Law at the borderline”,
in Marco Wan (ed),
Reading the Legal Case: Cross-Currents between Law and the Humanities, (2012)
[Routledge, 2012], pp 128-141, p 138.
ISBN 9780415673549

Or red, or bilingual, or a machine, or a chicken-coop?

(This last is in reference to “whether a chicken-coop may be considered a vehicle” — Leung, p 128. A hen-house, on iron bogies, was being towed along a road by a tractor: for the purposes of the relevant motor vehicle statute (whose purpose was to help with road maintenance), the hen-house was deemed to be a vehicle.)

“The nature of language also presents its own challenges. A V Crabbe wrote in Understanding Statutes, Cavendish Publishing Ltd, London, 1994, p 8:

… it is … the very nature of language that presents the greatest problem to successful communication. Language is considered

‘perhaps the greatest human invention’,

 

yet it is a most imperfect instrument for the expression of human thought. It has tremendous potential for vagueness, ambiguity, nonsense, imprecision, inaccuracy … [footnotes omitted]

— Kath Hall and Claire Macken,
Legislation and Statutory Interpretation, 3rd edition, (2012)
[LexisNexis Butterworths, 2012], [3.34] (p 66).
ISBN 9780409330656

In Haygarth v J & F Stone Lighting & Radio Ltd, [1968] AC 157, the question was: what is manual labour, and how is that different to the work that `ordinary brain workers’ do? More specifically, Was a radio and television repairman working in a back room in a television sales shop in Upper Brook Street, Ipswich, Suffolk, in May 1964, when a factory inspector visited, doing manual labour? If yes, then that place is a factory, and occupational health and safety applies, such as the provision of a first-aid box or cupboard.

Here we are only concerned with the words “employed in manual labour.” The word ” employed ” is clear. The words ” employed in ” denote employed to do. The word ” manual ” denotes something done with the hands. (As long ago as in 1884 Bowen L.J. said in Morgan v. London General Omnibus Co. (1884) 13 QBD 832, 834 (CA) that manual labour could only mean ” labour performed by hand.”) In one sense every person is employed in manual labour who is employed to do work with his hands. But nearly everyone who is employed must do some work with his hands. How then is a decision to be made as to whether an employed person is or is not employed in manual labour?

Per Lord Morris of Borth-y-Gest, at 175

Although the case ‘raises no question of general importance’ (Lord Reid, at 174), in the sense of legal principle, the various courts and judges held different opinions about where the dividing line (never hard and fast) should be drawn about what constitutes manual labour.

Prior cases looked to for guidance dealt with:

  • dispensing pharmaceuticals at a chemists’
  • being a tugboat captain
  •  doing lithography and engraving
  •  modellers moulding clay into ornaments and other things using photographs supplied by the employer
  •  being a grocer’s assistant
  •  making bouquets in a florist’s shop
  •  making decorative hampers from an assortment of bonbons and sweetmeats
  •  being a bus conductor
  •  being a tram driver

Terms like ‘borderline’ and ‘very borderline’ were used.

Where would you draw the line?

Or would it be more of a fuzzy smudge, like an artist’s thumb rubbing of a charcoal mark on the canvas?

Common Law and Roman Law

Two peas in a pod

The Common Law system is sometimes contrasted with the Roman one and its successor Civil Law systems, but, leaving aside the sour anti-Napoleonic taint which has flavoured some of the discussions on how different the two systems are, the two systems are, in fact, quite close.

Firstly, in the concept of equity, in the broad sense, sensu latu:

 

“Like their republican predecessors, the jurists of the Empire attached particular importance to the concept of aequitas and its role in correcting or expanding the existing body of law so it could meet the demands of social and commercial life. ”
— George Mousourakis,
Fundamentals of Roman Private Law, (2012)
[Springer, 2012], [1.4.6] The Culmination of Roman Legal Science (p 51).
ISBN 9783642428135

 

And secondly, in the practical, hands-on, case-by-case approach to seeking what the law is in concrete, rather than abstract, situations; not to mention, the reliance on Nature [read: Reason] in formulating solutions:

 

“They developed the content of natura [natural law] in close connection with the practical aspects of legal life and always in response to concrete needs and problems emerging from actual cases. From their viewpoint, discovering the appropriate legal rule or devising an acceptable solution to a legal problem presupposed a reasonable familiarity with both the nature of practical reality and the ordinary expectations that social and legal relations entailed. In this respect, the postulates of nature did not emanate from metaphysical speculation but from the findings of common sense and the need for order in human relations. ”
— George Mousourakis,
Fundamentals of Roman Private Law, (2012)
[Springer, 2012], [1.4.6] The Culmination of Roman Legal Science (p 52).
ISBN 9783642428135

 

The academic approach, — theoretical, abstract, classificatory (and later, the more easily codifiable) –,  is a different matter.*

 

*And, again, even here, the inference to be drawn from observing that one developed from the other (from practical Roman to theoretical Civil) is that they are not entirely (substantively) “different”, anymore than the tip of a leaf and the tip of a root are different yet on the same tree: it’s the same sap.

Adopting the Mirror Position

Legal reporting without legal reporting

From a 1996 paper:

 “In most jurisdictions, psychopathy is considered to be an aggravating rather than a mitigating factor in determining criminal responsibility.”

—  Robert D Hare, “Psychopathy: A clinical construct whose time has come?”,

in Curt R Bartol and Anne M Bartol (eds), Current Perspectives in Forensic Psychology and Criminal Behavior, 3rd edition, (2012) [Sage Publications, 2012], 94-105, p 103. Originally published  in 1996 in Criminal Justice and Behavior, Vol 23, No 1, pp25-54.

 

Hypothesis: If the ethical centre of the brain connects to conscious self-awareness through only, say, two or three neurons, and those neurons are functionally compromised, then it would not be surprising that overriding ethical inhibitions would require little effort in such circumstances; alternatively, if the neurons are functioning and the conclusion they transmit is defective, for example by there being an inability to imagine oneself in the place of others, or in imagining one’s responses to others’ responses, then it would not be surprising that decision choices become self-calculating and self-centred in a skewed way, being unable to factor in what other people would consider to be naturally expected responses and choices by others: a flawed world-view interaction model is in play, in other words.  So the ability for empathy fails for that person.

Incorrect processing, or correct processing on incomplete inputs, may produce the right answer by chance every now and then, but incorrect answers are not prevented. (There may be punishment by others after the event, though, if the offender is caught.)

 

***

 

In academic circles, the abstract of an article provides a summary of the contents and subject matter of the article. In the legal report of a case, the headnote looks very much like an abstract – it is at the start of the case report and is providing some sort of a summary – and this could mislead non-lawyers into mistaking the headnote for an actual abstract of the case, and that misconception could in turn lead them down logically-reasoned, but flawed, paths of reasoning.

A case headnote is someone else’s interpretation of what the case is about and its potential legal significance.

Lawyers are trained to read the case itself.

In a textbook for students:

 

Activity

Construct an interpretation map of the facts of the case in The Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Div  (http://www.bailii.org/ew/cases/EWCA/Civ/1953/6/html).

—  Nick James, Critical Legal Thinking, 3rd edition, (2011) [Pearson, 2011], p 32.

 

In any case, in deciding whether to adopt a headnote as a correct statement of the case requires reading the law report anyway.

Adopting the headnote as one’s own position on the case without reading that case is a rather peculiar way of proceeding.

Adopting a newspaper headline as the position on the case is even more bizarre.

 

***

 

In 2008, and reprinted in the same criminology book:

 

In criminal law, confession evidence is common, potent, and highly regarded. … Yet confessions are fallible.

Saul M Kassin, “Confession Evidence: Commonsense Myths and Misconceptions”,  in Bartol and Bartol, pp130-139. Originally published in 2008 in Criminal Justice and Behavior, Vol 35, No 10, pp1309-1322

 

The article continues with some stats:

 

12% of …

3% to 4% of …

1% to 2% of …

In North America, police investigators recently estimated that 4.78% of …

 

The 4.78% stands out. (Coincidentally, the round numbers come from other studies; the fractional from one where the author himself was lead author.)

Why not ‘over 4%’, or ‘almost 5%’, or ‘less than 5%’?

One possibility is that there is a confusion between accuracy and precision (since being a psychologist doesn’t guarantee an expertise or competency in statistics).

To get 4.78% in terms of non-fractional persons needs 478 out of 10,000 (and 10k seems rather large, in its own right) or, as a minimum, 239 out of 5,000: anything less than that and we’re back into fractional persons again.

 

 

A scan via Google shows that 631 people participated in a survey, and that (some of them) estimated the 4.78%.

 

By questionnaire, 631 police investigators reported on their interrogation beliefs and practices—the first such survey ever conducted. Overall, participants estimated that they were 77% accurate at truth and lie detection, that 81% of suspects waive Miranda rights, that the mean length of interrogation is 1.6 hours, and that they elicit self-incriminating statements from 68% of suspects, 4.78% from innocents.

 

Further, the 4.78 is an adjustment:

 

We then asked participants to separately estimate confession rates for suspects who were guilty and innocent. Predictably, these questions drew radically different estimates. Respondents estimated that 69.48% of guilty suspects provide a confession (Med = 75; Range = 0 to 100; SD = 23.91; N = 584). Separately, they estimated that 40.24% provided partial admissions and 33.83% provided full confessions. In contrast, they estimated that 23.30% of innocent suspects provide some form of confession (Med = 5; Range = 0 to 100; SD = 33.33; N = 524). A significant degree of Skewness (2.30; SE = .11) and Kurtosis (4.24; SE = .22) was noted in the distribution of false confession estimates. Omission of outliers succeeded in normalizing the distribution and suggested that an average of 4.78% of innocent respondents provide a false confession (Med = 0; Range = 0 to 30; SD = 7.66; N = 380;

Article text:

https://link.springer.com/article/10.1007/s10979-006-9073-5

PDF:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1141359

 

Further Google shows author Kassin (“the pages of American history”) has a predilection for the scriptwriter’s flourish.

For example, in:

https://www.innocenceproject.org/wp-content/uploads/2016/05/Kassin-2012.pdf

he gives a brief overview of a murder case in Italy and refers the reader to:

(for comprehensive overviews of the case, see Dempsey, 2010, and Burleigh, 2011).

with a footnote adding (presumably in case the reader is inclined to check the credentials of the cited Dempsey and Burleigh) that:

 

1 Additional sources to which I had access include the translated police reports of Knox’s statements; personal communications with Amanda Knox, Madison Paxton, and Nina Burleigh; and the Perugia Murder File translation of the Jury/Judge Conviction Report.

 

In a “Corrections and Updates” addendum several corrections are made, significant in a legal sense for anyone presenting a statement of what occurred, and reference is made to the “Hellmann-Zanetti Report on the Acquittal of …” (without mentioning that the charge of falsely accusing the employer of being the murderer was upheld, which attracted a four-year prison term for the accusation).

 

No other updates are mentioned, such as that ‘Hellmann-Zanetti’ was overturned as to the murder acquittal, on appeal to the Supreme Court, on grounds of specious reasoning (that is, circular reasoning, or ‘bootstraps’ logic) and ‘anthropological’ reasoning (read: racism) and the matter was sent back for re-determination to the appeal court level. Nor are any subsequent appeals and what happened thereafter mentioned. Time stops at the correction and the reader is not informed and is therefore left with a distorted impression of what has happened.

Not an ideal position to be in.

 

 

Further, there is a curious absence of reference to other past and future (non-legal) sources matching and even superseding the Dempsey and Burleigh, books which, from a quick scan of Amazon, would include Russell and Johnson’s Darkness Descending (2010), Follain’s Death in Perugia (2012) and Raper’s Justice on Trial: The Final Outcome – Evidence and Analysis in the Meredith Kercher Murder Case (2016).

It’s as if Kassin has not done his homework.

Or, more specifically, he is presenting a false scenario to the reader, much like the subjects of his study present false confessions, and ‘the rippling consequences’ of that scenario flow into other things, including an agenda: “people reflexively accept what is presented to them,” he says. Whether he consciously includes himself in that category is left unsaid.

 

In an ambiguously titled interview article, “Forging Forensic Science: Dr. Saul Kassin on Amanda Knox and the Truth behind False Confessions”

 

“All it took was a confession for Amanda, he said, and everything was set on its own course.”

Not true. A reading of Follain and the others will give a different picture than the one Kassin paints by relying on Dempsey and Burleigh and his conversations. (Not to mention his lack of legal insight is glaringly apparent: for example, an admission by a person cannot be used against them; the Hellmann court decision was annulled on the murder charge; etc)

 

It’s as if a psychological mirror effect is in play: “Prior expectations”, “tunnel vision”, “see what you want to see”.

 

tunnel

There is also a hint of cognitive dissonance in play:

 

“Most people don’t even know that [in the US] police are allowed to lie about evidence. Europeans can’t believe it’s even permissible.”

Interview:

https://www.forensicmag.com/article/2015/03/forging-forensic-science-dr-saul-kassin-amanda-knox-and-truth-behind-false

***

On the one hand, unwarranted techniques used by the Europeans elicited unreliable testimony (therefore, false confession). One the other hand, Europeans are surprised unwarranted techniques are being used by the US.

These Europeans are a wayward lot.

 

***

Unable to see beyond what is presented to him, mistaking those things for headnotes, no updates on matters that would change the position (substantively or otherwise, to point out his ‘harmless error’ jibe’s applicability to his own conclusions), inability to see the other side or integrate those other ideas into a nexus of conceptual associations, and no reference at all to anything legal on the European side – seems to indicate either that traffic is road-blocked on the two neurons from the ethical head office, or that the inputs went haywire there, or both. (His criticism of the Reid technique is independent of his opinion, assumptions and interpretations, though, and stands validly on the experimental results. And that is exactly because he does no ‘production scripting’ with them.)

 

Putting in minute details, saying things happened that didn’t, presenting a picture that is different from actuality, and treating it as true, is exactly paralleling the modus operandi of the false confessor: the question then arises – what future expectation does he have that will be to his benefit?

 

Mitigation or aggravation?

 

Let ℜ = the set of real possibilities motivating someone …

 

Either way, a fourth-hand summary of a case pumping through a non-lawyer pipe: I wouldn’t rely on it.

It doesn’t even qualify to the standards that newspaper reporters doing court cases and other legal reporting are expected to follow.

 

A Ramble around the Bramble Bush

Jurisprudence on Precedent Law

Just as some law students (and sometimes, fresh practitioners, too) mistake presenting an argument with being argumentative (in a moot, for example), likewise some people make the assumption that, in an adversarial system, being adversarial is the same as being partisan — you are, after all, ‘fighting for your side’.

Yet, in the adversarial system, one advocate can present both sides of the argument. Without fear, or favour. Indeed, the best advocates consider both sides and do not blinker themselves, in order to best bolster their own and undermine the opposing side’s arguments. Further, in criminal matters, the prosecution is obliged to bring a fair case, not a one-sided case.

Likewise, in terms of mistaking one thing for another, finding support in precedent is sometimes mistaken for doing history or understanding an historical context.

Which leads to the position (and things connected to Scalia crop up frequently in this regard, as if he were tainted with ‘the brush of unknowing’ and took the first Google result as Gospel, every time), that what is supposed to be a fair-and-balanced wrapper around a trawl through the cases and statutes (relating to the law of precedent, in this case) is in actuality a one-sided roll down the hill of partisanship.

Withholding essential and relevant information from a court (or the readership) is a breach of professional ethics and standards, because it does not present a full picture, and hence any conclusions will be lacking (potentially significantly) in the foundations.

The mistake of partisanship is easy to make (a lack of considered thought on the topic is the quickest way in) and is the mark of an amateur (or, more specifically, the untrained).

The logical fallacy of partisanship, and carrying the “Straw Man” argument around, to be deployed like a traditional Jack-in-the-Box in the under-pinnings of a tome, reduces the value of the work somewhat, too. A book purporting to be authoritative loses its future worth as persuasive precedent that way.

 

 


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
  • cultural linkages
  • stock of precedent (and, by implication, access to that precedent)
  • 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):

 

whenhejudges

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{}

 

numpar


 

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):jvert

 

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:

 

m

 


 

Shades of meaning

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):

carbasse1

carbasse_fn

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.

 


 

scambling

(Image from GoogleBooks)

 

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:

ouat

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.

 

pstlens

Vita is indeed brevis, and art longa.