Established Precedent

Incentive to vary from custom = none or not much

Advertisements

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.

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