We’re going back to the basics today: cows, jackets, and how the common law legal system really works.
This is going to be a multi-part series, because it actually takes that long to wade through the system’s various layers. If it weren’t complicated, we wouldn’t have law schools, and lawyers wouldn’t command the prices that we do.
Ultimately, though, I think it’s very important for non-lawyers to have at least a basic level of legal literacy. Law touches so many areas of life that understanding how it works is an essential part of living in a democracy. We should be able to read news articles about Supreme Court decisions (or even read the decisions themselves) and be able to assess them intelligently. And certainly for any person or business who needs to engage a lawyer, it will help you to get what you need out of that relationship, with more control over quality and costs, if you understand the way the law works and the way lawyers have been trained to think.
Even if it’s done through silly examples. I like silly examples.
While this series will have a Canadian focus at times, it really applies to any common-law country: Great Britain, the United States, Australia, New Zealand, and anywhere else that has adopted the British model.
One more initial caveat: I’ve never actually studied legal theory, and some of my friends who have might tell me that this is far too simplistic or just plain wrong. I am, however, a practicing lawyer in a litigation department, which is constantly using legal reasoning to try to persuade judges and arbitrators of things. This perspective is the underlying basis for how I think about legal reasoning and constructing legal arguments. To paraphrase former Prime Minister Jean Chretien, the common law works better in practice than in theory.
All right? Let’s get started.
Precedents and Common Law
I think that most people in common law countries have, at the very least, heard about the idea of precedents: if one judge decides a case one way, future judges must decide similar cases the same way. The first decision creates a precedent which later judges must follow.
In theory, judges don’t make law. They only interpret it. But in practice, that is exactly what they do. Because of the system of precedent, any time a judge decides a case, he or she is, in effect, creating a legal rule: this is how all similar cases must be decided in the future. The sum of all of these rules, this “judge-made” law, is what we call the “common law.”
Following precedents is, in general, a good thing. One of the most important attributes of law is that it should be consistent and predictable, so that (ideally, at least) different people can be treated equally, and so that people and businesses can plan how to behave. The devil, as always, is in the details.
You see, the rule says that once a precedent is established, all similar cases must be decided the same way. If the cases aren’t similar, all bets are off. So if there’s a precedent, and I don’t want it to apply to me, all I need to do is convince the judge that my case is different from the precedent case. Lawyers call this “distinguishing” the earlier case. And that’s where the fun comes in.
A Cow and a Horse . . .
Let’s say you took somebody else’s horse. Assume that no judge has ever decided a case about horse-taking before, but there is a precedent where a person was found guilty of theft for taking somebody else’s cow. Also assume that there’s no Criminal Code actually defining what theft is, so we have to rely on the common law – on the decisions of past judges.
Your lawyer stands up in court and declares, “Your Honour, the Cow Precedent is distinguishable! It involved a cow, but my client took a horse. There is no precedent which says that taking a horse is stealing. Clearly, my client is innocent.”
I think that even non-lawyers have a pretty good idea how the judge would respond to that. “Who cares whether it’s a cow or a horse? Your client took something which was somebody else’s property. The Cow Precedent says that this constitutes stealing. Your client is guilty of theft, and also of hiring incompetent counsel.”
. . . and a Jacket
But now consider this scenario. You’re in a crowded club with a dark cloakroom. As you leave, you go to the cloakroom and grab what you think is your jacket. You get outside the club and start putting it on as you walk, wondering why it doesn’t fit quite right. Just as it dawns on you that you must have taken somebody else’s jacket by mistake, you hear, “Hey! That person’s stealing my jacket!” A police officer happens to be right on the corner and arrests you.
The prosecutor makes the same argument as in the Horse-Stealing Case: “The Cow Precedent clearly establishes that taking something that isn’t yours is stealing, and people who do it are guilty of theft. There’s no doubt the accused took the jacket. There’s no doubt the jacket belonged to somebody else. Clearly, the accused is guilty.”
Your lawyer disagrees. “Your Honour, the Cow Precedent is distinguishable! In that case, the criminal took the cow deliberately, knowing it didn’t belong to him. My client made an honest mistake in a dark cloakroom. He truly believed it was his jacket, and look: the two jackets do look quite similar. The fact that the cow thief was found guilty has nothing to do with the case before you; they’re totally different situations. What my client did is not theft.”
All of a sudden, it sounds like you have a much stronger argument – and one that would probably succeed under Canadian criminal law, where (I’m simplifying here) a “guilty mind” is a requirement of a criminal offence.
What these examples show us is that to distinguish a case, it isn’t enough to prove your case is different from the precedent. You have to prove your case is different in a way that’s legally relevant. That just leads us to the next question, though. How do we know, from reading the Cow Precedent, what’s legally relevant and what isn’t?
That’s where we’re going in Part 2.