“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


(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.

“Your Honour, the Cow Precedent is Distinguishable!”: The Common Law, Part 1

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.