“Your Honour, the Cow Precedent Has Been Reversed by the Cow Precedent Reversal Act!”: The Common Law, Part 3

In the first two installments of this series, we talked about the common law, the way judges create law by requiring future judges to decide similar cases the same way. Judges are far from the only people who make law, though. We also have legislatures, which are full of folks whom we have, for better or for worse, actually elected. Surely they have some role to play in our legal system.

Actually, they have quite an important role, but it’s not the exclusive role that many think. Legislatures can overrule judges, but judges can interpret legislation, leading to a back-and-forth – a conversation – that explains how our laws really evolve and develop.

Open Season on Bovine Thievery

“Parliamentary supremacy” has been a fundamental feature of British-inspired legal systems for centuries. Now that those Parliaments are actually elected (well, the House of Commons is – Parliament also includes the unelected Senate and the Queen, but it’s the elected House where most of the power lies), the rationale is even more compelling. In a democracy, elected officials should generally be able to overrule unelected judges.

Remember the Cow Precedent, the fictional case which says that stealing someone else’s cow is a criminal offence? Let’s say that our elected representatives were not happy with that. Perhaps they are appalled at the concept of private cattle ownership. Perhaps they believe that the criminal system is too harsh to enforce laws about livestock. Or perhaps the Cattle Rustlers’ Association have a strong lobby and it’s an election year.

Whatever the reason, there is nothing stopping Parliament from passing a law which declares that cow-taking is no longer a criminal offence. They are absolutely free to reverse the Cow Precedent and declare open season on bovine thievery. They may even call the new law the Cow Precedent Reversal Act! (If that sounds far-fetched, consider that the Ontario legislature once passed a law called the Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act. Any guesses which Premier oversaw that wording? That’s right, it was Mike Harris, the same one whose government passed the Fairness is a Two-Way Street Act).

But that’s not the end of the story, because guess what will happen the first time someone is charged with theft, and claims innocence because the stolen property was a cow? The case is going to end up in a court, and the Cow Precedent Reversal Act is going to need to be interpreted . . . by a judge.

Taking the Bull by the Horns

Let’s say you stole a bull.

At your trial, your lawyer holds up the Cow Precedent Reversal Act. Is that enough to get you off? It’s not necessarily an easy question.

On the one hand, everybody knows that a bull is different from a cow. The starting point, whenever you’re interpreting a statute, is the plain meaning of the words.

On the other hand, the starting point is not always the ending point. You could certainly argue that when Parliament allowed cows to be stolen, it must have intended to include the male of the same species. After all, the Interpretation Act – yes, there actually is a law which is all about how to interpret other laws – says that words which refer to female persons include male persons, and vice versa. Why couldn’t the same be true of female and male bovines?

For this example, it doesn’t really matter which way the judge decides. Let’s say the judge declares that stealing bulls is still illegal. Guess what that decision is? A precedent! That interpretation of the Cow Precedent Reversal Act must be followed by future judges. And as more and more judges weigh in about what the word “cow” includes (A calf? A side of beef?), an entire series of precedents might start to develop – a common law of how to interpret the legislation.

To make this point in a less silly way, let’s look at one of the statutes that I deal with all the time, the Labour Relations Act, 1995. It’s 168 sections long, and in some places very detailed, but there’s still a lot of room to develop a robust set of precedents, an entire body of labour law.

For example, section 69 of the Act says that if there’s a sale of a business, any union bargaining rights and collective agreements binding on the seller become binding on the purchaser. The purpose is to ensure that unions don’t lose all their rights just because of a technical change in ownership. But what is a sale? The Act helpfully tells us that it “includes leases, transfers and any other manner of disposition,” but that still leaves a lot of room for manoeuvring. And what is a business? The only definition in the Act says that a business includes part of a business, which really doesn’t get us anywhere. What does get us somewhere is the extensive series of Ontario Labour Relations Board decisions that do define these terms, and that show us how they apply (or don’t apply) in different situations.

The fact is, most legislation is extremely general. It has to be, because it has to apply widely. Governments do their best to anticipate different circumstances and address them, but it’s impossible to anticipate every situation where a law might apply. In the common law system, it’s judges who interpret laws in individual cases, and by doing so, build up a system of rules that can be applied to other cases. It’s the judges who – pun intended – put the meat on the bones.

And if Parliament doesn’t like what the judges are doing? They are still elected; they still have Parliamentary supremacy. It’s open to them to say to the judges, “That’s bull!”, and amend the Cow Precedent Reversal Act to say that bulls can be stolen after all. It’s a back-and-forth. As naive as it may sound, it is a conversation.

But Wait, There’s More

Parliamentary supremacy does, of course, have a limit. That limit is the Constitution. As the basic law of the country, the Constitution can never be violated, even by someone who we’ve voted for. How do the common law and legislation fit in here? I’m not committed to writing a Part 4, but if there is interest, that is a place I can explore next.

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

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(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?

Reasons

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.