“Your Honour, the Cow Precedent is Distinguishable!”: The Common Law, Part 2


(Stock photo from http://www.sxc.hu/photo/1427863)

Happy Thanksgiving, everybody!

In Part 1 we talked about the basic principles of the common law legal system. We talked about the rule of precedent, that similar cases must be decided the same way. We also talked about how, if we don’t want a certain precedent to apply, we can try to “distinguish” it to show that it’s not actually similar to the current case. Then we ran through a couple of examples where it was pretty intuitive whether the current case was similar to, or distinguishable from, a case that we called the Cow Precedent.

But what if it’s not obvious? No two cases are ever going to be identical, so how do we know whether our case is different enough that the precedent will not apply to it? And if all cases are different from one another, how can we rely on precedents to build legal arguments?


The first place to look is the reasons for the precedent decision. Judges normally provide reasons which set out the facts of the case, the law, and how the law applies to the facts to reach a conclusion. That usually gives lawyers most of the fodder they need.

For example, I recently argued a case where my opponent cited a well-known Supreme Court of Canada decision, which says that employers have a duty to treat employees fairly and in good faith in how they go about terminating (firing) them. Our case didn’t involve a termination, though. It involved a retirement. My opponent argued that shouldn’t matter. The Supreme Court was concerned with treating people fairly when their employment ends, and that’s the same regardless of whether it’s a termination or a retirement – in the lingo of Part 1, regardless of whether you’ve stolen a cow or a horse.

In order to distinguish it, I went to the Supreme Court’s reasons, and tried to show that the Court’s real concern was that having your employment terminated is a traumatic experience and leaves you vulnerable. Employees need extra protection in those circumstances. These concerns don’t arise, I argued, when you’re voluntarily choosing to retire. So the reasons for imposing a duty of good faith on the employer didn’t exist in our case. The Cow Precedent was distinguishable.

(Of course, I still spent most of my time arguing that my client, the employer, had acted fairly and in good faith. Arguing that you didn’t need to be fair is never going to play well, even if it’s legally accurate.)

That’s just a single example, but it shows how legal arguments work in practice. Both sides are trying to draw out a principle from the precedent case. For my opponent, the principle was, employers must treat employees fairly when their employment ends. For me, the principle was, employers must treat employees fairly when terminating them. Both of us pointed to quotes from the Supreme Court’s reasons to support our views of what the Court was really trying to say. And depending on what the Court was trying to say, the precedent either applies to our case, or it does not.

Compare and Contrast

Most of the time, though, you’re not just going to have the Cow Precedent. There are going to be multiple precedents, some which support one side, and others which support the other. What do you do then?

Believe it or not, this is actually the easier scenario, for the simple reason that you have more data points. If there is only one precedent, you have to really analyse its reasons to figure out what legal rule it is trying to create. Having multiple precedents makes this easier by allowing you to compare and contrast. I literally do that high-school-type analysis on a weekly basis. Applied to my field, it looks like: What do all the cases where the union wins have in common? What do all the cases where the employer wins have in common? What does that tell us about what the law is? And based on that analysis, what’s likely to happen in the current case?

Let’s go back the Cow Precedent, and remember how it was distinguished in the Jacket Case: in the Cow Precedent, the theft was deliberate, while in the Jacket Case, there was an honest mistake. It might be difficult to come up with any general principles based on either of these cases individually, but when you read both of them together, it’s obvious that there’s an important distinction between taking something that doesn’t belong to you deliberately and doing so accidentally. That principle, based on comparing and contrasting the precedents, is what you can apply in a future case.

Other Techniques

There are, of course, a number of other techniques in legal reasoning. Sometimes, when there is no precedent which applies (or when the only precedent is distinguishable, which, legally speaking, is the same thing), lawyers go back to first principles, the basic foundations of the legal system and our society. That’s what we all did in Part 1 when we instinctively knew that there should be no legal difference between stealing a cow and stealing a horse. Theft is inherently a violation of private property rights, and it really doesn’t matter what private property is being stolen.

But there have been cultures throughout history with little conception of private property, and there are also cultures who revere cows as sacred. It would be easy enough to imagine a society that combined these traits, where taking a cow without permission would be a serious crime, but taking a horse would not raise eyebrows.

Another technique, if you don’t have a precedent that’s directly applicable, is to reason by analogy to other circumstances. The rule of precedent may not strictly apply, because the cases you’re relying on aren’t “similar” to yours, but the reasoning might still be persuasive.

Wait, wait, wait. For all this talk about cases, don’t we have actual laws?

A lot more could be said about the common law legal system, but that is it in a nutshell –using precedents and the process of legal reasoning to create and identify legal rules. But when I try to explain this, people usually say, “That can’t be our whole legal system! Don’t we have a government and a legislature that actually pass laws?” Of course we do, but in our system, those laws weave together with the common law (the body of judge-made law), and more importantly, with the type of common law reasoning that we’ve been talking about. In Part 3, we’ll see how that works.


One thought on ““Your Honour, the Cow Precedent is Distinguishable!”: The Common Law, Part 2

  1. Pingback: “Your Honour, the Cow Precedent Has Been Reversed by the Cow Precedent Reversal Act!”: The Common Law, Part 3 | Legal Gateways

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