It is often said that the common law is a flexible system of law that adjusts to the requirements of justice over time. This is confusing. If we follow a system of precedent, cases may arise where courts must follow an earlier precedent despite that it creates an injustice when applied to the new case. This seems neither flexible nor just. So, why do judges still believe the common law is flexible and leads to justice?
The truth is that judges find ways to ensure justice between parties. There are a few mechanisms a court can use to achieve this. The most common practice judges use to ensure justice in a particular case is through the use of distinguishing. So, when a court is confronted with a precedent that creates injustice in the case before it, the court may be able to distinguish it so the court needn’t apply the precedent. In what follows I want to give an account of distinguishing that draws very heavily on a legal philosopher called Joseph Raz.
It is important at the outset to highlight the difference between distinguishing in the strong sense and distinguishing in the weak sense. Distinguishing in the weak sense is when a court determines that the ratio of the prior case does not apply to the instant case. Let us look at this on an abstract level. Assume that the ratio of a case says that the rule applies if the operative facts a, b & c are present. So, if the instant case has facts a, b, c then the rule will apply. However, if the instant case has facts a, b, NOT-c then the rule does not apply. This is the weak form of distinguishing because all that the judges are determining is that, on the facts, the rule does not apply in the instant case. Last week’s post highlighted this with the example around the death penalty and treason. There is nothing special about this type of distinguishing but it is still quite a complicated process.
Distinguishing in the strong sense is different. This strong sense of distinguishing (which I will just call distinguishing from here) means changing a rule that does apply to the instant case so that the newly formulated rule no longer applies to the instant case. Going back to the example above, imagine the instant case had facts a, b, c. So, the precedent rule would clearly apply. But, the court can say, we’re changing the rule so that it requires a, b, c, and e. The instant case has facts a, b, c, NOT-e and so the newly formulate rule does not apply to the instant case. Clearly, what we have here is not distinguishing on the facts but instead changing what the rule actually is. Courts often do this but they aren’t very honest about the fact that they are creating a new rule.
This is all very abstract. Some examples should make this clearer. Imagine a case like this. Person P1 builds a house on a farm that he did not own but believed he owned. The true owner O1 then claims possession of his property. The court looks at the situation and makes the rule that says “an owner can reclaim his land provided that he compensates the possessor for improvements made by the possessor”. On the facts, P1 improved the property of O1 therefore (applying the rule) O1 may get the farm back only if he pays P1 for the improvements. This case is the precedent case.
Imagine a new case (the instant case). P2 knows that he is not the owner of a farm but he builds a house on it. O2 then wants to reclaim the property. So, he sues P2 for return of possession. P2 responds by saying, “I will only give you possession if you pay me compensation for the house I built.” A court looks at this situation. The rule from the precedent case states that “an owner can reclaim his land provided that he compensates the possessor for improvements made by the possessor.” But the instant court realizes that this would be an inequitable outcome – why should P2 get any compensation when he knew that he was not the owner of the farm? To overcome this injustice, the instant court reformulates the precedent rule as follows “an owner can reclaim his land provided that he compensates the good faith possessor for improvements.” So, the new rule now requires that the possessor made the improvements believing that they were entitled to so do. The instant court now applies the newly formulated rule to the facts of the case. Clearly P2 knew he wasn’t owner. So, O2 could reclaim possession of the farm without compensating P2 for possession.
The important things to extract from this example are as follows. A precedent creates a rule. The instant court is then faced with a rule that creates an unfavourable outcome. So the instant court reformulates the rule by adding a new condition that changes the old rule by limiting its application. In the above example this was done by adding the condition that the possessor had to be in good faith (genuinely but mistakenly believe they were entitled to possession).
The second important thing to extract from the above example is that when the instant court reformulates the precedent into a new rule, the modified rule must still justify the outcome in the precedent case. In other words, if the court were to apply the new rule to the facts of the old precedent case it must reach the same outcome that the precedent case reached. This is the case in the above example. If you apply the newly formulated rule to the facts of the old precedent case O1 would still have had to compensate P2.