Wednesday, March 24, 2010

Legal reasoning 1: Precedent

I made a number of promises at the start of the year that this blog would include regular posts that would be helpful to the students we’re all tutoring. So far this has been a lie. I hope to change that today by putting up a post on legal reasoning. I will hopefully do something similar every Wednesday. If you would rather die than think like a lawyer, this post isn’t for you. But if you are interested in how lawyers reason keep reading.

One of the first things that you learn when you get to law school is that courts are bound by precedent. The doctrine of precedent is ‘the general duty of judges to follow the legal rulings in previous judicial decisions’. This is often referred to as stare decisis et non quieta movere (or stare decisis for short). Translated this means ‘to stand by decisions and not disturb settled points.’

In practice this means that the courts are bound absolutely by the decisions of higher courts. So, the High Courts are absolutely bound by the Supreme Court of Appeal and the Constitutional Court. Absolutely bound means that a court lacks the power to refuse to follow an earlier decision or overrule the precedent. Further, a court (including the Con Court or SCA) is also bound by itself presumptively – that is a court must follow its own earlier decisions unless it is persuaded that it is clearly wrong.

Let’s quickly explore the notion of what it means to be bound by a decision. Being bound means that when a court gets a case (called the instant case) that is similar to an earlier case (the precedent case) in the relevant respects then the court must follow the earlier court’s finding of law (called the ratio decidendi).

For example, one of the first Con Court judgments S v Makwanyane found that the death penalty was unconstitutional (this is the precedent case). However, the Con Court declined to decide whether the death penalty is constitutional for the crime of treason. Let’s say you were sitting as a judge in the Western Cape and a case came before you where someone brutally raped and murdered a woman (the instant case). You couldn’t look at the instant case and say “this murder was so horrible that I am going to sentence this criminal to the death penalty.” You are absolutely bound by the precedent case that the death penalty is unconstitutional.

Now consider this second example. Say that you were a judge in a high court case involving someone who had committed an act of treason against the government. It was such a heinous act of treason that the prosecutor was asking for the death penalty. Here you would not be bound by Makwanyane. Why? Makwanyane limited the scope of its finding on the death penalty to all crimes except the crime of treason. Since this was an act of treason you could (and in fact are obliged to) make up your own mind on whether the death penalty was unconstitutional for cases involving treason. Why? The relevant facts of the case before you (someone had committed treason) and the relevant facts of Makwanyane (someone had committed a crime that wasn’t treason) are different so the decision in Makwanyane is not binding for this set of facts.

Notice, in the first example (where you’re absolutely bound by Makwanyane) that you don’t follow Makwanyane because you agree with its reasoning. You follow it because you have to follow it despite whether you think its reasoning was sound or deficient. This is important because it highlights one of the shortcomings of precedents – new cases aren’t decided according to an ‘all things considered’ view of what would be just in the particular circumstances. Instead you have to decide the instant case in a certain way because some earlier case decided it that way. So, the doctrine of precedent can be at odds with what justice requires in the particular circumstances of the case.

Despite this shortcoming South Africa still follows the doctrine because it promotes certainty and stability. People need to know that when a court decides what the law is that they can rely on that remaining the law. This has a number of spill-over benefits including the fact that people are more likely to settle their disputes without going to court because they know what the law is. The doctrine also promotes cognitive and decisional efficiency. Because precedents are binding, a court doesn’t need to reconsider every question of law that arises in the instant case. This means that the judge can focus on the questions of law that haven’t been decided before and on the complicated questions of fact. So, those judges give these new issues their full attention and hopefully come to the best outcome and rely on early courts to have done the same in the precedent.

Consider again the second example (Makwanyane isn’t binding because there’s an act of treason). Here you as a judge must make your own decision because you are not bound by any decision that is on point. Since Makwanyane expressly did not deal with treason you are free to completely disregard that case since it doesn’t bind you (in fairness, certain theorists will deny that you can disregard it completely. See for instance Dworkin). However, it is highly unlikely that any court faced with a treason trial with the death penalty would disregard Makwanyane and not mention it in their decision. This is because decisions that don’t constitute precedent are still persuasive. That is, courts are willing to learn from earlier decisions. A court will look at Makwanyane and examine its reasoning. If the instant court finds the reasoning sound and believes that similar reasoning would hold in the case of treason it may find that the death penalty is unconstitutional even for the crime of treason. Note here, Makwanyane was important not because the court had to follow it but because the court was persuaded by the reasons in Makwanyane. Of course, it may be that the court finds the reasoning in Makwanyane was incorrect or inappropriate for the crime of treason and thus finds the death penalty constitutional.

Anyway, hopefully this gives you a taste of legal reasoning. Next week I will go into more detail around how courts and judges can avoid following a precedent.


  1. This blog certainly shed some light into the importance of legal reasoning.

  2. This was really insightful. I'd definitely come back to read more. Thank you.

  3. thanx!this made it quite simple and easy to grasp

  4. excellent stuff!!!!! Give us more!!

  5. Awesome stuff!!!!! Thank you Dave and to all the contributors, this was enlightening. It highlighted the importance of precedents and legal reasoning in a simplified and easy to understand manner!!!! Dankie

  6. Even after a year, young soon-to-be lawyers are benefiting from this post. Thanks heaps

    1. make that six years

    2. The boni mores have not changed, this precedent post is still beneficial.

  7. What is a teacher? I'll tell you: it isn't someone who teaches something, but someone who inspires the student to give of her best in order to discover what she already knows.
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