Jurisprudence Y2S1 Week 2: L3 From Source to Norm & L4 Binding Precedent

The 'standard picture' of legal sources: the five-step chain from social facts to judicial decisions

(i) The SOURCES of law in a legal system are SOCIAL FACTS, (ii) that generate MATERIALS (legislation, binding court decisions, widespread normative practices, etc), (iii) by reference to which all LEGAL NORMS of that legal system exist, (iv) and these legal norms, when bearing on factual situations, generate LEGAL REASONS, which are in turn (v) GROUNDS for JUDICIAL DECISIONS. Legal reasons stem from legal norms and, indirectly, from legal sources (such as legislation and precedent). Added: this links to Week 1: legal reasons (conclusive vs weighable) are what the sources ultimately feed into.

Sources of law are social facts: what does that mean?

In each legal system there is a LIMITED number of TYPES of social fact that count as a source of law. For instance: • an ACT OF PARLIAMENT (legislation) • a DECISION in a particular case by a court with power to bind other courts (PRECEDENT) • a CONVERGENCE of social practice meeting certain requisites (CUSTOMARY LAW) Added: this is a positivist-style account (compare Hart's rule of recognition and Raz's sources thesis): what counts as law depends on social facts, not moral merit. Check how the lecturer links it.

'Materials': what are they and how do they differ by source?

'Materials' is an UMBRELLA TERM for the items that sources generate: • Legislation: a CANONICAL TEXT • Binding precedent: an EXEMPLAR • Customary law: CONVERGENT SOCIAL PRACTICES • International treaties: a canonical text • Institutional writers: a canonical text Each calls for a different technique: INTERPRETATION of the text (legislation); COMPARING the exemplar with the case at hand (precedent); IDENTIFYING the standards used by the social group (custom).

What is a legal norm and how does it create a legal reason?

Legal norms establish GENERAL CORRELATIONS between certain facts and certain legal consequences. The norm makes those facts REASONS that justify the legal consequences. They can normally be expressed as CONDITIONALS: If F1, F2, Fn… then C1, C2, Cn… When a norm bears on other facts (a case), it generates a LEGAL REASON, which grounds the judicial decision.

Legislation: its three distinctive features

In modernity legislation is the PARADIGMATIC legal source. It is: (i) an ACTION (by a parliament, an administrative body with delegated authority, a dictator, etc) that (ii) INTENDS to change the law and (iii) does so by EXPRESSLY DECLARING what the law will be from the moment of enactment. The change is made by producing a CANONICAL TEXT, so to understand the change one must understand the text. The object of interpretation is the TEXT.

Why do we need techniques of statutory interpretation?

The meaning of the enacted text is not always TRANSPARENT. Reasons include: • the language is AMBIGUOUS; • provisions can be, on their face, CONTRADICTORY; • certain interpretations might lead to ABSURD results. Jurists use different 'canons' of interpretation to deal with this.

The canons of statutory interpretation (three main ways)

(i) LITERAL interpretation: the ordinary meaning of the words, understood in context. (ii) SYSTEMATIC interpretation: avoids inconsistencies and incoherence in the law. (iii) PURPOSIVE interpretation, within which: a. approaches that rely on the DEBATES leading up to enactment to find the 'LEGISLATIVE INTENT' (voluntas legislatoris); b. approaches that rely on SUBSTANTIVE considerations (moral, prudential, political) to identify the PURPOSE of the law (voluntas legis). Interpretation must still be considered in the wider context of the social and individual facts of the case.

Voluntas legislatoris vs voluntas legis

• VOLUNTAS LEGISLATORIS: the will of the LEGISLATOR. Found by looking at the debates and pre-legislative materials that led to enactment ('legislative intent'). • VOLUNTAS LEGIS: the will of the LAW. The purpose is identified by substantive considerations (moral, prudential, political), not by what the legislators said. Both are branches of PURPOSIVE interpretation.

R (O) v Secretary of State for the Home Department [2022] UKSC 3 (literal approach)

Issue: Did the Home Secretary's fee of £1,012 exceed the power in s.68 Immigration Act 2014 (fees 'in respect of the exercise of functions in connection with immigration and nationality')? Facts: O argued the fee was ultra vires because it was so high that the relevant registration was meaningless in practice. Held: The LITERAL meaning of the provisions was sufficient to dispose of the case. Lord Hodge: external aids do not 'displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity'. Literal meaning has to be understood IN CONTEXT. External materials may help ascertain meaning 'whether or not there is ambiguity', and may reveal ambiguity. Added: I think the Home Secretary's fee power was upheld (check the outcome).

Royal Bank of Scotland v Wilson [2010] UKSC 50 (purposive approach)

Issue: Under s.19 Conveyancing and Feudal Reform (Scotland) Act 1970, can a bank repossess a property under a standard security WITHOUT serving a formal calling-up notice? Facts: s.19 says a creditor who intends to require discharge of the debt and, failing that, exercise remedies, must serve a notice calling up the security. The language was ambiguous, and previous Scottish decisions held a call-up notice was not necessary. Held: The purpose of the statute clarified its meaning. Lord Hope: 'The purpose of the legislation was to lay down a clear and orderly procedure to be followed before the creditor may proceed to exercise remedies.' So the call-up notice WAS necessary.

Literal vs purposive interpretation: how do the two cases contrast?

• R (O) v SSHD [2022] UKSC 3: clear and unambiguous words, no absurdity, so the literal meaning in context disposes of the case. External aids do not displace it. • RBS v Wilson [2010] UKSC 50: the language was AMBIGUOUS and earlier case law pointed the other way, so the PURPOSE of the Act settled the meaning. Takeaway: legal norms shape legal reasoning along with legal sources. Interpretation is one of the main tools of judicial decision making, but it is never separate from the social and individual facts of the case.

Precedent as a source: which decisions bind?

Court decisions in particular cases can be a SOURCE of legal norms (precedent). • NOT all legal decisions are a source of law. • Only SOME courts have the power to bind another court or, sometimes, THEMSELVES. So the question is what it means to 'be bound'. Added: check which courts bind which in Scots law (UKSC; Inner House; Outer House; sheriff courts) in your lecture slides.

Stare decisis: what is the doctrine of precedent?

If a precedent is BINDING, then in all cases that fall under it the court must either FOLLOW or DISTINGUISH the precedent. The obligation is DISJUNCTIVE: follow OR distinguish. It is not an obligation simply to follow.

Following precedent: what is actually binding?

The court must find what part of the precedent is BINDING. • Binding decisions are made in the context of PARTICULAR cases, so some aspects are particular to that case and irrelevant for future ones. • Judges typically give MULTIPLE arguments, not all of which matter. Judgments also include considerations not directly relevant. • To decide whether a case 'falls under' a precedent, set aside the unimportant parts. What is left is the RATIO DECIDENDI.

Ratio decidendi: definition and what it is NOT

The legal RULE of which a case is a source. It is what binds future courts, in contrast with: (a) what is binding merely BETWEEN THE PARTIES, and (b) what is merely OBITER DICTUM. It is a RULE, so it can be expressed as a conditional: If fact1, fact2, fact3… then consequence1, consequence2… In finding what is binding, we look for the conditional statement that expresses the rule the previous court ADOPTED.

Where do we find the ratio? Why judicial opinions are NOT canonical texts

It is tempting to treat judicial opinions like legislation: read what the judges wrote as statements of what they meant to change in the law and unlock their 'legislative intention'. BUT the ratio is not found by interpreting the judge's own canonical formulation of it (Morgan Guaranty). Even when a judge formulates a rule carefully, courts 'do not usually treat such a formulation in the same way as a section in a statute'. Courts sometimes apply a precedent but reject the previous court's own formulation of the rule (e.g. Rex v Fenton, English case).

Who formulates the ratio? The key question to ask

RESULT: the formulation of the ratio is the business of the court that APPLIES it. What rule the previous court acted upon is a matter of INTERPRETATION of the materials about the precedent (legal opinions, court reports, sometimes pleadings). Judicial opinions give important CLUES, but the question is: 'WHAT FACTS that were present in the previous case were taken by the previous court to be SUFFICIENT to justify the decision they took?'

Following vs distinguishing a precedent

• FOLLOW: apply the ratio decidendi to the instant case. • DISTINGUISH: explain why the previous ratio was OVERINCLUSIVE. That requires: (i) pointing to a FEATURE of the case at hand that is NOT present in the precedent; AND (ii) giving an ARGUMENT for why that feature justifies a DIFFERENT conclusion. Exam use: for a problem question, state the ratio as a conditional, then say whether the new facts fit it or can be distinguished.

Uses of precedent beyond the doctrine of precedent

Authoritative legal precedent matters beyond the formal doctrine. It can be used: (i) to find solutions to 'CASES OF FIRST IMPRESSION' not directly covered by settled law (by ANALOGY, arguments A FORTIORI, etc); (ii) to argue that a legal PRINCIPLE not hitherto recognised in the system should be recognised.

Problem-question template: binding precedent

1. Which COURT decided the earlier case, and does it BIND this court? 2. Identify the RATIO (what facts were sufficient for the decision?) and state it as 'If F1, F2… then C'. 3. Separate it from OBITER and from what binds only the PARTIES. 4. Do the facts of the new case fall under the ratio? If yes: FOLLOW. 5. If not, can you DISTINGUISH: a feature absent from the precedent, plus an argument why it justifies a different result? 6. Remember the ratio is formulated by the APPLYING court, not simply read off the judgment. 7. If no precedent covers it: analogy / first impression.

Morgan Guaranty Trust Co of New York v Lothian Regional Council 1995 SC 151

Issue: Can the ratio decidendi of a case be found without the judges' own formulation, and can money paid under a mistake of LAW be recovered? Facts: A bank paid money to a local authority under a swap agreement. The contract turned out to be null and void. The money was paid under a mistake about the law. Money paid by mistake of FACT could be recovered, but could it for a mistake of LAW? The Court had to decide whether Stirling v Earl of Lauderdale (1733) bound it. Held: Nothing from the Stirling judges was preserved, and all that was known until the 1980s was that the pursuer won (Morison's Dictionary). In the 1980s the lawyers' pleadings were uncovered. From the pleadings and the result the court identified the ratio: if someone pays money to someone else because of an error about the law, they can claim it back. The ratio was found and applied without knowing a single word the Stirling judges said. So the ratio cannot come from treating judicial opinions as canonical texts.

Stirling v Earl of Lauderdale (1733) and Glasgow Corporation v Lord Advocate 1959 SC 203

Issue: What authority does a case have where no reasoning survives? Facts: All that was known of Stirling (1733) until the 1980s was that it was decided for the pursuer, from Morison's Dictionary (1733 Mor 2930). Held: In Glasgow Corporation v Lord Advocate, the court said the authority of Stirling 'must surely be qualified by the fact that it is a mere statement unsupported and unvouched for by any argument', and refused to apply it to a similar situation. Later, in Morgan Guaranty, the pleadings were used to find its ratio. Note: your notes say 'Lord Weathley'. The judge is probably Lord Wheatley (check).

Rex v Fenton (English case): applying a precedent but rejecting its formulation

Issue: Can a court apply a precedent while denying the previous court's own formulation of its rule? Facts: Not in your notes. Your notes cite it only as an example of courts doing this. Held: Cited to show courts sometimes apply a precedent but deny that the rule the previous judges formulated was a good account of that case's ratio decidendi. Note: check the facts and the report in the lecture slides.