A Ramble around the Bramble Bush

Jurisprudence on Precedent Law

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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

 

 

 

Weeks and Days

Patterns in the water

 

(A) Weekdays and Year Cycles

Just like the way that the gears of an Enigma machine inter-mesh with each other to produce a set of combinations, the days of the week, combined with the days in the year, produce a cycle 10,227 days long (28 years) before the days of the week and the days of the month start repeating:  e.g., 25-August being a Friday, with 24-August being a Thursday, etc.

10227 = 7 x 1461 (1461 = 365.25 x 4)

Using slightly different cycles, we get:

10228 [-1]

25/08/2017 6          Friday
24/08/1989 5          Thursday
23/08/1961 4          Wednesday
22/08/1933 3          Tuesday
21/08/1905 2          Monday

 

10227 [0]

25/08/2017 6          Friday
25/08/1989 6          Friday
25/08/1961 6          Friday
25/08/1933 6          Friday
25/08/1905 6          Friday

 

10226  [+1]

25/08/2017 6          Friday
26/08/1989 7          Saturday
27/08/1961 1          Sunday
28/08/1933 2          Monday
29/08/1905 3          Tuesday

 

10225 [+2]

25/08/2017 6          Friday
27/08/1989 1          Sunday
29/08/1961 3          Tuesday
31/08/1933 5          Thursday
2/09/1905    7          Saturday

Note how the weekdays and day numbers go in step, and eventually ‘click’.

 

(B)

Numbers themselves form patterns. Here are some visual examples from the web of  Latex coding output: a helix based on square roots, and a set of curves, repeated and coloured. These sorts of things lead naturally to (Pascal) triangles and sieves (of Eratosthenes) and other things, like why 2 can be the only ever even prime number (in counting systems above base 2, anyway).

helix

“root-helix” Latex code

 

mandala

the first mandala from “mandala” Latex code

 

(C)

The characters in a font are visual shapes, so they can be repeated, reflected, and reflected again, and patterns emerge.

Doing a basic experiment in Latex, if we take a character, say the Phaistos Disc dove phaistosbird(presented in left-to-right reading mode, the assigned Unicode code point is u000101EF) and a random letter (or better, ‘letter’), from say the Lao script letter (character slot 120 in the “Noto Sans Lao” font from Google, a combination of two glyphs, u0E9A + u0ECD), combine them together, birdletter and reflect, we get a motif for a book chapter or similar.

symmetry

 

Fleurons can be tiled. Here are some examples running off code from an article by Wilson in the TeX User Group newsletter (TUGBoat), 2011.

fleurons_linked

 

(D)

Story structures also form patterns, with TV tropes being an ever-popular example, because sometimes they are so glaringly, but unintentionally, comical: the ‘syntax’ of a plot, or a set of scenes, appears too-obviously constrained. Fair enough, if the constraints are the laws of physics or what a stunt person can and cannot do (in those cases we can suspend disbelief and enjoy the show). In other cases, the background context influenced the ideas and choices, and it shows, like cave people with modern hairstyles, and even modern facial expressions and gestures. (Even a young Umberto Eco couldn’t help noticing how the Indians in Westerns were repeatedly constrained by the plot to present themselves as easy targets for showcasing the hero’s skill while standing on top of the runaway stagecoach, etc.)

 

 

(E)

All these things, gear-meshing, numerical version of the same, translating from one set of patterns to another, they all suggest the possibility of a notation algebra of some sort. One cat, called by different names in different languages, leads to the conjecture that the different words are equivalents of each other, and interchangeable: they are ‘the same’. That process breaks down and confusion arises when it comes to processes instead of things: the process of driving on the road in England is not the same as the process of driving on the road in a US state. The function or result is the same, getting from A to B (more or less), but the method is different, driving on the left instead of driving on the right, how to approach an intersection. Civil Law versus Common Law.

 

A cour d’assise is (sort of) a Crown Court, in a sense (the purpose or result), and some legal dictionaries ‘translate’ the one term to the other; in another sense (how it does it), a cour d’assise  never will be interchangeable with a Crown Court: the procedures (like the engines of different types of cars, or like the road rules) work in their own ways.

So, for a translator, the question is: *What* is being translated?

Some sort of notational algebra is definitely being called for.

If a and b are words (the forms) in different languages (together with their underlying concepts, the content):

 

mapping1

Things are mappable:

mapping1a

Processes are not:

mapping2

 

(F)

Speaking of transformations, based on cobbling together some Web code and other suggestions, I’ve got a legally-useful Latex document template up and running: traditional numbered paragraphs, un-numbered headings. Citation is a bit fiddly at first glance and took a couple of attempts to set up the procedures correctly (but the complexity of the process matches the complexity of the required rules, OSCOLA in this case – a huge amount of work has gone into the OSCOLA bibliography style file).

b001

First Latex compilation run: citation placeholders are inserted

Then biber runs across the citations, collating everything behind the scenes.

 

b003

Second compilation run: references are inserted, re-pagination done, cross-references updated, etc

(The case of R v Hill, about the competency of a witness to testify, is available at CommonLII.)

 

 

I’m very impressed with Latex (and its Unicode incarnation, Xelatex).

 

 

 

transforms

Examples of transformations (from “transforms.tex”)

Interpreting

What it is(n’t)

Additionally, the trial judge gave a cautionary instruction to the jury to alleviate any problems which may have been created by interpreter: #2 … “…Obviously, an Interpreter is not a participant in the trial. An Interpreter really only acts as a transmission belt or telephone. In one ear should come in English and out comes Spanish, …”

United States v Cesar Rosario Anguloa, United States Court of Appeals, Ninth Circuit (20 Jun 1979), 598 F.2d 1182, at [18: n5].

As cited in:

“In 1979 in United States v. AnguloaI [i.e., US v Anguloa 598 F2d 1182 No. 78-1183 (1979)], the Court instructed the jury following the replacement of an incompetent interpreter that ‘[a]n Interpreter really only acts as a transmission belt or telephone’; a former Australian Supreme Court judge, in turn, stated that ‘[t]he interpreter should look upon himself rather as an electric transformer, whatever is fed into him is to be fed out again, duly transformed’ (Wells 1991, in Hale and Gibbons 1999: 207 [WAN Wells, An Introduction to the Law of Evidence (S Australia; A B Caudell, 1991); S Hale and J Gibbons, “Varying realities: patterned changes in the interpreter’s representation of courtroom and external realities”, Applied Lingistics, (1999) 20(2): 203-20.]).”

— Krzysztof Kredens and Ruth Morris, “Interpreting outside the courtroom: A shattered mirror?’ Interpreting in legal contexts outside the courtroom”, in Malcolm Coulthard and Alison Johnson (eds), The Routledge Handbook of Forensic Linguistics, (2010) [Routledge, 2013], pp 455-469, p 468.

  • See also: (as indexed on AustLII:) Hale, Sandra — “The Challenges of Court Interpreting: Intracacies [read: Intricacies], Responsibilities and Ramifications” [2007] AltLawJl 30; (2007) 32(4) Alternative Law Journal 198, where the Australian judicial officer is described as “an Australian judge” (note 4).