Legal Method Notes 1-2
Legal Method Notes 1-2
• S = Specific
• M = Measurable
• A = Attainable/Achievable
• R = Realistic
• T = Time Bound
• The methods of learning may include all or any of the following singularly
or in combination:
Case studies;
Lecture methods
Tutorials;
Discussions and presentations,; and,
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Debates
• Specific
• A specific goal has a much greater chance of being accomplished
than a general goal. Provide enough detail so that there is no indecision as
to what exactly the participant should be doing. An example of a general
goal would be, "Increase consumption of fruits and vegetables." But a
specific goal would say, "Increase fruits and vegetables consumption by
including a serving at one meal per day."
• Measurable
• Choose a goal with measurable progress, so the participant can see
the change as it occurs. A measurable goal has an outcome that can be
assessed either on a sliding scale (1-10), or as a hit or miss, success or
failure. Based on our example, “Increase fruits and vegetables
consumption by including a serving at one meal per day” would be a
measurable goal because we are measuring if the participant consumed
fruits and vegetables one meal per day.
• Attainable/Achievable
• An achievable goal has an outcome that is realistic given the
participant’s current social, economic, or cultural resources and time
available. Goal achievement may be more of a “stretch” if the outcome is
difficult to begin with. Our example of a goal was to " Increase fruits and
vegetables consumption by including a serving at one meal per day.”Is
consuming a serving of fruits and vegetables one meal a day possible for
the participant? If not, then this would not be an attainable goal.
• Realistic
• Start small; with what the participant can and will do and let the
participant experience the joys of meeting their goal. Gradually increase
the intensity of the goal after having a discussion with the participant,
parent or caretaker to redefine the goal. Is our example goal " Increase
fruits and vegetables consumption by including a serving at one meal per
day” realistic for a WIC participant’s food budget?If not, then we might want
to redefine the goal.
• Time Bound
Set a timeframe for the goal: for next week, in three months, by six months.
Setting an end point for the goal gives the participant aclear target to
achieve. Nutrition follow-up ideally should occur within the 6-month
certification period (best practice) but shall occur within one year or two
certification periods or prior to the participant's change in categorical status.
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Remember that follow-up is an essential component of WIC value
enhanced nutrition services provided for the benefit of program
participants. Follow Up should be provided to find out how the participant
has addressed a nutrition issue, but should not replace a nutrition
education contact/intervention.
• By the end of the course, students are expected to have acquired ability to
apply the basic skills of legal research and writing, appreciate their over-
arching character in relation to the legal profession; fully comprehend the
main principles of statutory interpretation and its relationship with legal
practice and the administration of justice and to be able to apply the key
principles and skills of legal research and writing in their legal education.
• Case Method
A case citation will usually have the following features;
a) Case Name, where one cites the names of the parties on either side
b) The year in which the case was reported
c) The reporter volume number
d) The reporter abbreviation e.g. K.B, ULR
e) The page number
One can cite a case like; Daver Vs Scorpion (2007) 1 ALLER 56. In this case,
Daver and Scorpion will stand for parties, (2007) stands for the year the case was
decided, 1 stands for the volume number, ALLER is the volume of the reporter, 56
stands for the page number
• A system of instruction or study of law focused upon the analysis of court
opinions rather than lectures and textbooks.
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• Students do not know how to use authorities appropriately and their reading
culture needs to be boosted. This is basic for any trained lawyer.
• This is the purpose of the case method; to strengthen how you discover the
law.
• Students must be assigned cases and statues to read and make presentation in
class.
• This however depends on availability of reading lists, which should be
provided by staff to Mr. Kalaja for filing and distribution to students.
Rationale
• The case method enables a student to master the use and application of the
law.
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• To read the actual judicial decisions which become the law under the
rule of stare decisis.
• The case method is usually coupled with the Socratic method, though there
may be differences.
• On the other hand the case method involves real parties with real problems
and therefore,
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• It stimulates students more than do textbooks.
• Helps students develop the ability to read and analyze cases, which is
a crucial skill for lawyers.
• Reading cases enables students learn how and why judges adhere, or
do not adhere to law developed in previous cases.
• Students also learn how judges have the discretion to create law by
construing statutes or constitutions.
• Students are expected to write case briefs. Students should write case
briefs.
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• It is about the basics of reading, annotating, highlighting, and briefing
a case
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• At a minimum, however, make sure you include the four elements listed
above.
• Elements that you may also want to consider including in addition to the
four basic elements are:
• Dicta (commentary about the decision that was not the basis for the
decision)
• Dissent (if a valuable dissenting opinion exits, the dissent’s opinion)
• Party’s Arguments (each party’s opposing argument concerning the
ultimate issue)
• Comments (personal commentary)
• When describing the Judgment of the case, distinguish it from the Holding.
• The Judgment is the factual determination by the court, in favor of one party,
such as “affirmed,” “reversed,” or “remanded.”
• In contrast, the Holding is the applied rule of law that serves as the basis for
the ultimate judgment.
• Even if this were true, what is relevant for the judge to make his decision is
not always relevant for you to include in your brief..
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• You should include the facts that are necessary to remind you of the story. If
you forget the story, you will not remember how the law in the case was
applied.
• You should also include the facts that are dispositive to the decision in the
case.
• For instance, if the fact that a car is white is a determining factor in the case,
the brief should note that the case involves a white car and not simply a car.
• To the extent that the procedural history either helps you to remember the
case or plays an important role in the ultimate outcome, you should include
these facts as well.
• There is usually one main issue on which the court rests its decision.
• This may seem simple, but the court may talk about multiple issues, and
may discuss multiple arguments from both sides of the case.
• Be sure to distinguish the issues from the arguments made by the parties.
• The relevant issue or issues, and corresponding conclusions, are the ones for
which the court made a final decision and which are binding.
• The court may discuss intermediate conclusions or issues, but stay focused
on the main issue and conclusion which binds future courts.
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• The rationale is the basic reasoning that the court used to come to its
decision and the key factors that made the decision favor one side or the
other.
• While a brief is an extremely helpful and important study aid, annotating and
highlighting are other tools for breaking down the mass of material in your
casebook.
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• Annotating Cases
Many of you probably already read with a pencil or pen, but if you do not, now is
the time to get in the habit. Cases are so dense and full of information that you will
find yourself spending considerable amounts of time rereading cases to find what
you need. An effective way to reduce this time is to annotate the margins of the
casebook. Your pencil (or pen) will be one of your best friends while reading a
case. It will allow you to mark off the different sections (such as facts, procedural
history, or conclusions), thus allowing you to clear your mind of thoughts and
providing an invaluable resource when briefing and reviewing.
Annotations will also remind you of forgotten thoughts and random ideas by
providing a medium for personal comments.
In addition to making it easier to review an original case, annotating cases during
the first review of a case makes the briefing process easier. With adequate
annotations, the important details needed for your brief will be much easier to
retrieve. Without annotations, you will likely have difficulty locating the
information you seek even in the short cases. It might seem strange that it would be
hard to reference a short case, but even a short case will likely take you at least
fifteen to twenty-five minutes to read, while longer cases may take as much as
thirty minutes to an hour to complete. No matter how long it takes, the dense
material of all cases makes it difficult to remember all your thoughts, and trying to
locate specific sections of the analysis may feel like you are trying to locate a
needle in a haystack. An annotation in the margin, however, will not only swiftly
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guide you to a pertinent section, but will also refresh the thoughts that you had
while reading that section.
When you read a case for the first time, read for the story and for a basic
understanding of the dispute, the issues, the rationale, and the decision. As you hit
these elements (or what you think are these elements) make a mark in the margins.
Your markings can be as simple as “facts” (with a bracket that indicates the
relevant part of the paragraph). When you spot an issue, you may simply mark
“issue” or instead provide a synopsis in your own words. When a case sparks an
idea — write that idea in the margin as well — you never know when a seemingly
irrelevant idea might turn into something more.
Finally, when you spot a particularly important part of the text, underline it (or
highlight it as described below).
With a basic understanding of the case, and with annotations in the margin, the
second read-through of the case should be much easier. You can direct your
reading to the most important sections and will have an easier time identifying
what is and is not important. Continue rereading the case until you have identified
all the relevant information that you need to make your brief, including the
issue(s), the facts, the holding, and the relevant parts of the analysis.
Highlighting
Why highlight? Like annotating, highlighting may seem unimportant if you create
thorough, well-constructed briefs, but highlighting directly helps you to brief. It
makes cases, especially the more complicated ones, easy to digest, review and use
to extract information.
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Highlighting takes advantage of colors to provide a uniquely effective method for
reviewing and referencing a case. If you prefer a visual approach to learning, you
may find highlighting to be a very effective tool.
If annotating and highlighting are so effective, why brief? Because the process of
summarizing a case and putting it into your own words within a brief provides an
understanding of the law and of the case that you cannot gain through the process
of highlighting or annotating.
The process of putting the case into your own words forces you to digest the
material, while annotating and highlighting can be accomplished in a much more
passive manner.
What should you highlight? Similar to annotating, the best parts of the case to
highlight are those that represent the needed information for your brief such as the
facts, the issue, the holding and the rationale.
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For each different section of the case, choose a color, and use that color only when
highlighting the section of the case designated for that color. Consider using
yellow for the text that you tend to highlight most frequently. Because yellow is
the brightest, you may be inclined to use yellow for the Conclusions in order to
make them stand out the most. If you do this, however, you will exhaust your other
colors much faster than yellow and this will require that you purchase an entire set
of new highlighters when a single color runs out because colors such as green are
not sold separately. If instead you choose to use yellow on a more frequently
highlighted section such as the Analysis, when it comes time to replace your
yellow marker, you will need only to replace your yellow highlighter individually.
In the personal experience on one of the authors, the sections of cases that seemed
to demand the most highlighter attention were the
Facts and the Analysis, while the Issues and Holdings demanded the least. Other
Considerations and
Procedural History required lots of highlighting in particular cases although not in
every case.
Experiment if you must, but try to choose a color scheme early on in the semester
and stick with it. That way, when you come back to the first cases of the semester,
you will not be confused with multiple color schemes. The basic sections of a case
for which you should consider giving a different color are:
Now that we have covered, you are ready to start practicing. Keep the tips and
techniques mentioned in this chapter in mind when you tackle the four topics in the
remainder of this book. If you have difficultly, refer back to this chapter to help
guide you as you master the case method of study and the art of using the common
law.
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• Therefore, under the case method, students learn to reduce cases to four
basic components:
• To facilitate the case method of study, course outlines play an important role
as study aids.
• Outlines help students to focus on the most important material they have
learned in the course of training and they are not only helpful in the
examinations, but help them acquire legal skills.
CITATION
Citation is one of the most important parts of a legal research paper. It refers to
refers to sources used as authority for the conclusion of law cited in the text.
• Cases are important sources of law and either they may be sourced
from law reports, casebooks or periodicals or text books.
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• They enable a researcher and reader to find or know the source of
information.
• Round bracket
Parties
• Law reports as a rule always start with the name of the accuser. For instance
in criminal law, Uganda v Kanyama is how a criminal case citation is
made.
• In civil litigation, it is usually the plaintiff or the petitioner who appears first:
Kifalu v Musege.
• This however changes in appeals: the appellant appears first and then
respondent regardless of who was the petitioner.
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• However, in England, the modern view is to leave the appellants appear in
the format as in court of first instance.
• There are special cases which have a different citation not necessarily
starting with the name of the petitioner.
• In Uganda are cited as any other civil suit with the names of the
parties petitioning and children are cited as follows:
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THE REPUBLIC O F UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL DIVISION
MISC. CAUSE NO. 254 OF 2013
IN THE MATTER OF APPLICATION FOR PREROGATIVE
ORDERS BY WAY OF JUDICIAL REVIEW
BETWEEN
SIMON TENDO KABENGE ::::::::::::::::::::::::::::: APPLICANT
VERSUS
1. UGANDA LAW SOCIETY
2. RUTH SEBATINDIRA :::::::::::::::::::::::::::::::::: RESPONDENT
2 Use of authorities
• Reading lists do not have only cases and statutes, but have text books,
journals and reports which can sources of authority.
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• Each country has its own law reports, but since we are bound by common
law principles, English precedents may also be sources of authority.
• However, except for cases decided in England before the 1902 Order In
Council are binding and those after are merely of persuasion.
• This may explain why we have the East African Law Reports, EACA,
local reports like KALR or KLR
• The following law reports are common in law practice and may be
available in high court and university libraries.
• In England there are official and non official law reports. Officials ones
include: Appeal Cases (AC), Chancery Division,(Ch) Family Division,
(Fam) Queen’s and King’s Bench (QB/KB), Business Law Reports (Bus
LR), Industrial Cases Reports (ICR), Public & Third Sector Law Reports
(PTSR), Weekly Law Reports (WLR).
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• These are reports sanctioned by the Incorporation Council and referred to
as official law reports.
• There are however commercial law reports such as All England Reports
(All ER), and in addition are All England Law Reports Reprints (ALL
ER Rep) and All ER on EU decisions cited as All ER (EC).
• There are also reports under the neutral system, (What is neutral
system?) which are officials and are cited differently:
• In East Africa most law reports are commercial either published by law
firms like the Kampala Law Report (KALR) or by public institutions like
the High Court Bulletin of LDC.
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• Characteristics of law reports
• Summary of facts
• Holding
• This was a case of purchase of goods which had been stolen and sold to a
vendor who put them in a market for sale. The claimant while in the market
before sunrise spottedthe goods and paid for them. He showed them to
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another person who wanted to buy them for a price the claimant did not
accept. This person gave them to another dealer who put them on sale. The
claimant Reid was alerted about the sale of these artefacts which he
identified as his and reported to the police.They were confiscated by the
police but the buyer explained how he had bought them for 200 pounds
claiming he had a god title as he had bought them in an open market. It was
held in the trial court that the buyer had a good title as he had bought the
goods in a market overt during the permitted time.Reid appealed.
The goods should openly be on sale at a time when those who stand or pass
by can see them...it must be in day time when all can see what is for sale:and
not in the night time; when no one can be sure what is going on. And if n
day time what better test can you have than between sunrise and sunset. No
half- light then, but full daylight. Just as a distress, to be valid, must made
between sunrise and sunset…so a sale in a market overt are to be valid, must
be between sunrise and sunset. This sale was made before sunrise, Mr Coke
did not get a good title to have the pair of Adam candelabra to him. The
appeal was allowed.
The source of authority for this decision was based on case law which was
based on Coke’s Institute (1642) vol. 2 pp713-714.
• Greenland (Ltd) v Wilmshurst and Ors (1913) 29 TLR 685: Authors who
are still alive should not be used as sources of authority.
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• R v Shvpuri [1986] 2 All ER 334: Why judges may be skeptical of some
authors.
However what is important with this case is was reference to the Practice
Statement Note of [1966] 3 ALL ER 77 which was applied for the first
time applied in a court decision of Anderton v Ryan [191985] 2 All ER
355which according to the trial judge was open to questions.
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of years and has never been dissented from a judicial
decision, it would be most unfortunate to throw doubt
on it after it had been acted on by justices and their
clerks for so long.
• Table of contents;
• Index/glossary
• References.
• This is to help you look out for what to read and ensuring citations are
proper.
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• There is the Law Reform Commission in Uganda.
• Authors who are still alive should not be quoted as authorities because of
the possibilities of changing their views.
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• Publication is sometimes for publicity of the author without the
author having the rudiments of expertise in the field of writing.
• According to Lord Denning, text books are not digests of cases but state
principles of the law. (See 1947) 63QLR 516
• They are written by people who have studied the law as a science with
more detachment than men engaged in busy practice.
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• In other words, some of these publications may have gaps or
inaccuracies on positions of law.
• In this case the HL was of the view that internet sources may be
cited only if:
• Citation of statutes:
• Statutes have long and short titles. A short may like this (The
Evidence Act (year) Cap
• Keeping updated
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• In Uganda, there may not be a system of updating in law save for
legislation in the government gazette. In England are weekly law
journals or law society’s gazette. (Find out the system in
Uganda…)
• Conclusion
• Always be careful when citing text books and journals. They are
not authorities like statutes or case law.
• Keep updated with legal developments and therefore, you must use
the library, read gazettes and do not forget to use electronic
sources.
• Exercises
Exercise: Read
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Legal Research and how to find the law
• Training students on the tools for conducting legal research and how to find
the law
Introduction
• Research is an integral part of the study of law and legal practice, and other
disciplines, and therefore unavoidable.
• There is a saying in law that nobody knows the law, it is in the books and
lawyers only know where to find it.
• What are the implications of this saying?
• A lawyer or a law student must always be engaged in legal research.
• Legal research is of the tenets of legal training and practice. It is the
books where the law can be found.
• Therefore, a lawyer has to be updated about the current state of the
law, so is a writer.
• When writing a book, you need to conduct literature review to
acquaint yourself with the current state of knowledge.
• In conducting research, you have to be guided by the following:
• Primary and secondary source.
• Basic legal research and tools for Legal Writing: citation, reference,
plagiarism
Convene library consultations in assorted groups of students across
sections
Recommended readings
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(i) ‘Research: Sources of Law’ from material available online on
http://www.aallnet.org/sis/lisp/research.htm,
http://www.library.uq.edu.au/law/research/strategy.html#3 and
http://www.vtstutorials.ac.uk/tutorial/law/?sid=2485947&itemid=12969.
ii)James Holland and Julian S Webb, Learning Legal Rules, pp 24-31
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• Legal research is the process of identifying and retrieving information
necessary to support legal decision-making. It may involve:
• Complex legal issues applied to specific facts requiring complete
answers for clients that pay for your expertise.
• He who wants to be a lawyer must not just prepare passing the examination.
• Must have the skill of using legal materials.
• Knowledge about the current state of the law either in statutes,
reported or unreported cases.
• Unreported cases are important sources of law but must be brought to
the attention of the judge.
• Must have knowledge about the law library and how to use it.
• Must always have organized legal materials and properly stored.
• Must always have first hand sources. The implications of this are:
• When reading, you do not have to write volumes of notes or
depend on lecture notes.
• You have to make your own notes, and have always to verify
them with actual authorities as soon as you can.
• Do not depend on another man’s notes. They may be better in
themselves but they may be worse for the learner.
• You have to be careful when reading commentaries,
summaries, which should be avoided as much as possible.
• You cannot become a lawyer by trusting such sources and if
you make use of them to pass an examination, you cannot be a
lawyer worthy the name.
• Do not confine yourself to text books. They are not sources of
law, it is found in statutes and cases.
• A text writer may cite the law, but he or she expresses an
opinion which has no legal force.
• This is because such an author may have wrongly cited the law.
• Therefore you must be familiar with law reports and statutes.
• As a student you must be familiar with catalogues.
• They constitute the tools of a lawyers’ trade.
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• Their masterly s will make life of a law student, teacher, researcher or
judge much better.
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• Entries may either be class marks or decimal. (May be invite a
librarian to explain these classifications)
Class marks
• They are number and letter codes on the spine labels of print library
materials such as books and journals.
• They are used to organize books according to subject area.
• Class marks group items of a similar subject together, which
makes browsing the shelves easier.
• They are numbered according to the subject, e.g. 340is the
number for law.
Functions of classmarks
• Enable a student to quickly find both particular items and whole
subject areas.
• Classmarks may be used to browse materials on the shelf, or browse
virtually using the classmark options on the online library catalogue.
• If a catalogue record for a book has no classmark, it usually means
that it’s an electronic book; click on the link within the catalogue
record and login with your University credentials for access.
Sources of law
• Statutes,
• Case Law,
• Customs
• Case books
• journals
Searching Law Reports: How to find a law report
• According to Glanville William, finding a law report starts with the index,
which indicates the reference to the case at all stages.
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• You will find an index outlining the report(s) in which a judicial decision is
indicated.
• In England as we have already seen are a number of reports. One of them,
the Weekly Digest, which publishes digests of new cases on a weekly basis.
• Such a digest will lead you to identify new authorities.
• There is also the All England Consolidated Tables and Index, the Current
Law Citators covering all cases for a specific period. The English and
Empire Digest covers old cases.
• There are many indexes and please refer to Glanville William at p41-44 for
further reading.
• Two pages references and their importance
• For instance you might find in a law report cases cited twice in the
same report. E.g. [2017] 1 QB 1, 8 or [2017] 1 QB 1 at p8.
• The first page contains the beginning of the case and the second stage
has the dictum from which the real reference is being made.
• This is important for citations. The second indicates the exact page
from where to find the issue under discussion.
• Therefore you always have to bear this mind when writing whether a
legal brief or a research paper.
• Square and round brackets.
• As we have seen, brackets indicate the usefulness of time. A square
bracket is an indicator that the year is very important for searchng the
source while under a round bracket, the year is not important. For
instance you might find a law report cites as follows: Stanley v Powell
(1890) 60 LJQB 52 and Stanley v Powell [1890] 1 QB 86.
• For the former, the year is not important, it is the volume and journal
from where to find it. While the latter, the year is very crucial.
• Therefore when citing cases, you have to be careful. Why? The way a
source is cited determines its weight as an authority.
• There is an index of the EA Law Reports, HCB and other law reports
which you can always make use when searching for legal authorities.
• Statutes
• There is an index of the Laws of Uganda. It is arranged alphabetically.
This index helps you to find out the law in force.
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• The one in the library is 2006 and requires updating. In reputable
libraries, you will find all repealed statutes deleted and if just the
amended, the parts affected are deleted.
• This is to help a researcher to omit such statutes lest he or she might
think they are still authority.
• Another source of sources on legislation are gazettes. All principle
and subsidiary legislation is published in the government gazette at
Entebbe.
• Subsidiary legislation appears as legal notices.
• Customs
• The repugnancy clause: R v Amukeyo (supra)
• In Tanzania, customary law has been codified.
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• Defining a research problem.
• Whether legal or non legal research, a researcher is prompted to
conduct a research because there is a problem which needs solutions.
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SOME CONCLUSIONS CONCERNING THE EFFECTIVE USE OF
EXTRINSIC AIDS
• As interpreting a statute is a question of law and as all extrinsic
aids such as the internal history of its enactment and
contemporaneous facts and conditions) ought to be judicially
noticed, courts should be permitted to consult and evaluate any
such aids in determining the statutory meaning in any case.
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rather the application of the meaning of ordinary words or
phrases in a statute to the particular facts of the case, every
reason for following rules of evidence in determining what
extrinsic aids should go to the jury is again cogent, since a jury
may be misled as much by this kind of evidence as any other.
Although it is seldom that this question of the use of extrinsic
aids by a jury arises, the problem does present itself whenever a
judge believes that the jury can satisfactorily determine the
meaning of popular terms.
LEGAL REASONING
Introduction
• To enable students understand what legal reasoning is about.
• To enable students grasp the techniques of legal arguments
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• What happens in court is what really matters.
• The concept of legal reasoning is based on the American school of realism,
articulated by Holmes:
• Life of the law is not just logic but it is more of experience than theory.
• It is about rationality and consistency.
• Rationality and consistency depend on the socio-economic and political
environment or personal interests of the judge, public policy
• In other words what is socially expedient is the experience not legal rules.
(syllogism)
• Though Holmes talks about training of a lawyer is on logic and the language
of courts is logic, his emphasis is on practice.
• Holmes argues that even though judicial reasoning is based on explicit
formulation, there is also an implicit attitude on the part of the judge.
• Holmes and Dworkin share the belief that rules are inadequate in providing
a model of legal practice.
• Facts are the basis for defining the legal rules which are constantly being
made and remade.
• But what lies behind practice is the attitude of the judge based on social,
economic and political features, and what may be fair and just.
• Judges make decisions based on standards or ideas which exist outside the
texts containing rules which go into the melting pot, which helps in defining
the law to be applied to a given situation. These standards are policies and
principles, according to Dworkin.
• What this means is that judges are aware of the fact that their individual
values and preferences may impact on their judgment.”
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• In a lecture on Leadership in the Law: What is a Supreme Court For, the
author argues that the panels of judges selected may affect the outcomes.
• This is why all judges of the Supreme Court seat together to hear an appeal.
• The principle Dworkin is emphasizing is one which judges must take into
account, if it is relevant.
• What this implies is that legal rules though viewed as major sources of
authority are always subject to qualifications in light of particular
circumstances.
• Read Rv R (Rape: Marital Exemptions [1991]4 All ER 481.
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• For example, the law of common employment in England was a hindrance
to the development of the law of negligence. Courts were unwilling to open
the gates wide to hold an employer liable when an employee suffered injury
in the course of employment, much as courts recognized that an employer
was duty bound to ensure safety of his employees.
• It was not until 1948 when law of common employment was repealed and
the law of negligence got defined in Donogue v Stevenson.
• However, much as syllogistic logic may be useful in testing validity of
conclusions drawn from given premises, it may be inadequate as a method
of reasoning, in a practical science such as law, where rules are not given
but must be created.
• Thus politics, religion and prevailing economic environment play an
important role in defining what is logical.
• Thus legal texts have to be interpreted and not just read.
What is syllogism?
• Syllogism ("conclusion, inference") means what can be inferred from
social environment than from legal rules.
• It is a flow of an argument starting from the general to specific—i.e.
something general from which a conclusion about something more specific
may be drawn.
• Legally, it is derived from logic based on deductive reasoning to arrive at a
conclusion based on assumptions which are asserted as true
• Syllogism starts with the law as the major premise, then facts as the minor
premise and conclusion which is a result of application of the law to the
facts.
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• It involves:
• Statement of the law (major premise: statutes and case law, human
rights standards, international law).
• Statement of fact (the minor premise, which forms the judge’s
starting point when writing a judgment).
• Conclusion (which results from application of the law to the facts)
• Though facts constitute the minor premise, they have to be proved in court.
They are the backbone of the case. They are the raw data consisting those
that have been selected and classified in terms of legal categories.
• Always remember that true premises (facts) must be the basis of valid
arguments and conclusions.
• Conclusions have no rules and there is now way one can tell what a judge
will decide.
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• Inductive reasoning is the opposite of deductive reasoning.
•
•
• Inductive
reasoning is moving from specific observations to broader
generalizations and theories.
• It is a "bottom up" approach (please note that it's "bottom up" and not
"bottoms up" which is the kind of thing the bartender says to customers
when he's trying to close for the night!).
• This then enables the formulation of some tentative hypotheses that can
be explored, which may end up in some general conclusions or theories.
Deductive reasoning:
• Deductive reasoning
is moving from
the more general to the more specific.
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• It is a "top-down" approach starting with a general statement, or
hypothesis, and examining the possibilities of reaching a specific, logical
conclusion--from the general — the theory — to the specific.
• This is best explained by mathematical formula: P=Q and R=S, then P=S
• This is then narrowed down into more specific hypotheses that have to be
tested.
• This ultimately enables the testing of the hypotheses with specific data --
a confirmation (or not) of the original theories.
• Another example: All men are mortal is the major premise. Socrates is a
man is a minor premise, Socrates is mortal is the conclusion.
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• Or the earth is the source of life is the major premise. Humans are born is
the minor premise. Humans die is the conclusion.
• All birds lay eggs (major premise) a chicken lays eggs (minor premise).
A chicken is a bird (conclusion).
• For example using proverbs or a man falling with head first and survives, he
can be described as a rock.
• It represents a situation, which is “similar to” but not “the same as” as a
simple proverb goes: “For example is not proof”.
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• In comparison with syllogistic reasoning analogy is about testing
consistency, continuity, and the weighing of opposing claims and
defenses.
• Comparing fact situation before the court with the fact situations of
previously decided cases (precedent);
• This means that the legal rules applied to a prior case with facts
similar to those of the case now before a court should be applied to
resolve the legal dispute.
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• It is generally recognized that each of these three steps is dependent upon
the other two.
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followed the decision of the majority judges in a case he had
dissented.
• Thus in Re Schweppes Ltd's Agreement [1965] 1 All ER
195, the Court of Appeal, with Willmer LJ dissenting,
ordered discovery of documents in a case involving
restrictive trade practices.
• Original precedent
• This is a new precedent meaning that there is no previous
decision on a point of law to be decided by court.
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• An original precedent is based on analogy, which implies
that court will use cases nearest to the case at hand but they
are not binding.
• If there are similarities, court may decide that principle to apply. See
the case of Hunter v Canary Wharf and London Dockland
Development Corporation.
• The theory behind original precedent is that such a precedent
was considered declaratory.
• Persuasive precedent
• There are precedents that do not bind court, but out of
persuasion, court may follow such a decision.
• Persuasive precedents may come from different sources
• Obiter dicta
• Dissenting judgments
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• Decisions of lower courts: for instance the supreme
court may use a decision of the high/court of appeal.
• Courts from other jurisdictions.
• The doctrine of precedent depends on law report.
• In EA, it may be hard to point out which law reports are official.
• Unreported cases are also sources of authority but with permission
of court in England as it was held in Roberts Petroleum v Bernard
Kenny Ltd [1983]
• Precedents though binding but may be departed from if it appears
right to do so.
• The rationale is that adherence to precedent may lead to injustice
in a particular decision and may also restrict the proper
development of the law.
• In spite of all this precedent stresses certainty in the law especially
in criminal trials, contractual obligations and settlements of
property and fiscal arrangements.
•
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• Only the essential principle of the law to the decision is what is
called ratio decidendi.
• Statements of the law that are not relevant to the decision are obiter
dicta.
Techniques used in handling ratios (see pages 161-167)
• Distinguishing
• Where the material facts of a case are different from an earlier
case, a judge may refuse to follow that decision.
• Distinguishing is a major factor in allowing the doctrine of
precedent to remain flexible.
• Cases which may be questionable or unpopular may be restricted
to narrow parameters by distinguishing them.
• Distinguishing an earlier decision is simply a way of saying that it
is irrelevant to the present facts.
• It is therefore not a critique of the earlier decision and does not
disqualify such a decision from being binding.
• But there may be situations where court restricts a decision to its
own facts, which may be distinguishing it from the present facts.
• This was the case in Jobling v Associated Dairies Ltd [1981] 2 All
ER 752, where the HS Lords did not follow its decision in an
earlier case Baker v Willoughby [1970] AC 467, over which it
was not satisfied on the state of earlier authorities.
• This was based on the Practice Statement (Judicial Precedent)
[1966] 3 All ER 77
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• Following, approving and applying
An earlier decision is said to be followed in a latter case where the facts
of the two cases are sufficiently similar for the judge in the latter case to
be persuaded for the same principle of law to be applied.
Any court may follow a decision of any other court, but where the latter
court is higher than the earlier one, the principle may said not simly to
have been followed but to have been approved.
If later in a subsequent trial court findsan earlier decision attractive and
the facts of the case fall short of being susbstantially the same but can be
said to be not dissimilar, the later court may apply the earlier decision.
• Not following, doubting and overruling
• Though facts of an earlier decision may be substantially the same, court
may decide not to follow such a decision.
• If depending on the hierarchical relations, court finds a decision is not
attractive, the latter court may not follw such a decision.
• This may result in the earlier decision being doubted or disapproved.
• If a higher court finds a decision unsatisfactory either it was wrongly
decided or should no longer be followed, is what is called overruling the
earlier decision and therefore can no longer be used as an authority.
• Per incuriam
• ….the doctrine of per incuiriam only applies where [a court] has reached
a decision in the absence of knowledge of a decision binding on it or a
statute , and that in either case it has to be shown that had the court had
this material, it must have reached a contrary decision…I do not
understand the doctrine to extend to a case where, if different arguments
had been placed before it, it might not have reached a different
conclusion…’
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• In another decision of R v Simpson [2003] 3 All ER 531, Lord Woolf CJ
pointed out the following:
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discussing liability in negligence, it did not have
effect over the decision court had to make.
• However, such obiter dicta may have binding effect
on lower courts or
• If it is frequently cited with approval.
History of precedent
• The writ system
• Writs were specific legal proceedings which were recognized under
common law.
• You could seek a remedy from court if that cause was recognized and
that is when a writ was issued.
• Writs and precedent: a decision from a writ was only applicable to
the specific writ.
• Writs were narrow and compantmentalized and only applicable to
comparatively specific factual situation.
• There was no generalization. There was nothing common.
• If one decision is to serve as a precedent for another, they must have
something in common even if they share it with no other cases.
• Under the writ system, there was no commonality.
Verticle and horizontal dimensions of precedents
• The common law principle that all courts bind all lower courts is what is
called vertical dimension of precedent. I.e. When a higher court makes a
decision, all lower courts must follow it.
• In we have the magistrate court, high court, court of appeal and supreme
court.
• Magistrate courts have no binding force but are bound to follow decisions of
the high court and those higher up.
• Horizontal dimension of precedent means some courts bind themselves. For
instance the high court decisions are binding on it, so are the CA and
Supreme court decisions have binding force on themselves.
Are courts bound by their decisions? Read Ian Mcleod on Legal Method:
Chapters 10,11, 12 and 13.
• Generally yes, but not the high court when instance jurisdiction but
may follow such decisions out of judicial of comity (courtsy).
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• However, when exercising appallate jurisdiction, it may be bound.
• This was an issue of discussion in Young v Bristol Aeroplane co Ltd
[1944] 2 All ER 293 where it was held as follows:
• Court is generally bound by its own in civil cases but this is subject to
the following exceptions:
• Where court encounters two conflicting decisions of its own. In
such cases, court cannot follow both decisions and must decide
of which of the two it has to follow.
• Where the supreme court makes a subsequent decision which
deo not expressly overrule a decision of the CA but which the
CA feels is such of a nature that the two cases cannot stand
alongside each other.
• In such cases, the CA may decline to follow its own decision.
• If the decision was given per incuriam, court will not be bound
by it.
• All courts with authority to bind others can overrule or depart from
their own decisions where it is right to do so on the following
grounds:
• If it is wrongly decided and is overruled like in the case of R v
Howe [1987] 1 All ER 771.
• It is likely to lead to unfairness.
• It is has been subject of criticism by jurists, academics, judges
and practitioners.
Students should read R v Howe (supra) and find out why it was
overruled and Khoroshondjan v Bush which was overruled by Hunter
v Canary Wharf.
In summary the following can be noted
• Precedents are useful in the following manner:
• If there is commonality between two cases, then previous
decision can be used to decide current decision
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• It provides notice of what a person's rights and obligations
are in particular circumstances.
• Disadvantages
• It is too rigid for two reasons:
• The dilemmas of flexibility makes application of precedent
problematic.
• Inferior courts are made to follow decisions of higher courts.
• The law develops at a slow pace. (the law of negligence: Read the
following cases: Langridge v Levy[1837] 2 M&W
519Winterbottom v Wright, 1842 10 M& R 109 Heaven v Pender,
[1882-83] 11 QBD 503Home Office v Dorset Yacht Co Ltd [1970]
AC 1004, Donoghue v Stevenson [1932] AC 562 and in the
judgment of Caparo v Dickman [1990] 2 AC 605)
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• The large number of reported cases makes it hard to find the
relevant law.
•
STATUTORY INTEPRETATION
Interpretation may vary and difficulty and the following factors are responsible:
• The draftsman may refrain from using certain words that he or she regards as
necessarily implied. The problem here is that the users may not realise that
this is the case.
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• The draftsman may use a broad term ("a word or phrase of wide meaning")
and leave it to the user to judge what situations fall within it.
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• In the construction (interpretation) of statutes, the principle aim of the court
must be to carry out the "Intention of Parliament".
• Context
• To find the meanings of statutes, judges use various tools and methods of
statutory interpretation, including
• purpose.
• Common law developed three main rules (plus some minor ones) to assist
them in the task. These are the Mischief Rule, Literal Rule, and the Golden
rule.
• Presumptions
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• Statutes may have presumptions which help in interpretation and
construction of statutes; for example
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(A) THE RULES OF STATUTORY INTERPRETATION
• The literal rule is the first rule which is the least problematic method in
interpretation.
• It was popular in the eighteenth and nineteenth centuries.
• The literal rule followed an increasingly strict view of the words of a statute:
if the case before them was not precisely covered they were not prepared to
countenance any alteration of the statutory language.
• One of the leading statements of the literal rule was made by Tindal CJ in
the Sussex Peerage Case (1844) 11 Cln & Fin 85:
• "... the only rule for the construction of Acts of Parliament is, that they
should be construed according to the intent of the Parliament which
passed the Act. If the words of the statute are in themselves precise
and unambiguous, then no more can be necessary than to expound
those words in their natural and ordinary sense. The words themselves
alone do, in such case, best declare the intention of the lawgiver."
• Under this rule a judge just considers what the legislation actually says by
looking at the plain, ordinary, everyday meaning.
• In Brutus v Cozens [1972] 2 All ER 1297
This was a case of whistle blowing on a sports ground, which whistling was
so irritating to the spectators and the whistler was arrested and charged with
insulting behavior in breach of the peace. The trial court dismissed the
charges of appellant’s behavior being insulting, hence this appeal to the
Divisional Court which convicted the respondent. The case proceeded to the
HL and one of the issues was the meaning of the word “insulting”.
Court used the ordinary meaning of the word as the issue of fact, was
whether the words, behaviours of the appellant were insulting.
•
• The literal rule is further discussed in two other cases:
• Whiteley v Chappell (1868) LR 4 QB 147.
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• What did Lord Esher MR state in R v Judge of the City of London
Court [1892] 1 QB 273?
• The literal rule was favoured by the Law Commission for a variety of
grounds:
• It encouraged precision in drafting:
• The main advantage of the literal rule is that it fits easily in the constitutional
principle without causing any problems.
• The judge gives effect to the grammar or the technical meaning of the
words; he must also determine the extent of the general words mean.
Short comings
• The defendant had pretended to be a person whose name was in the list but
was already dead.
• The statute only required a person with voting rights to be a living person to
be entitled to vote.
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Court used the literal rule and the defendant was acquitted, since a dead
person is not, in the literal meaning of words, ‘entitled to vote'.
• The decision discredited the literal rule actually for absurdity in such
cases.
• Therefore, the literal rule was not a good rule to follow as it provide
only one interpretation.
• Besides that, the intention of the legislature would not be shown if the
judges would follow this rule. On the other hand the literal rule was
criticized by the Law Commission (1969) on the ground that:
• Judges have tended to excessively emphasize the literal meaning of statutory
provisions without giving due weight to their meaning in wider contexts.
THE GOLDEN RULE (law of reciprocity (do ut des= I give so that you will give
in return)
• A court may depart from the ordinary meaning where that would lead to
absurdity. In Grey v Pearson (1857) 6 HL Cas 61, Lord Wensleydale said:
"...the grammatical and ordinary sense of the words is to
be adhered to, unless that would lead to some absurdity,
or some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary
sense of the words may be modified, so as to avoid that
absurdity and inconsistency, but no further."
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• This became known as "Lord Wensleydale's golden rule".
• It only applies where the words are ambiguous. An interpretation that is not
absurd is to be preferred to one that is. An example is R v Allen (1872) LR 1
CCR 367. (Look it out on the internet)
Its background
• One should treat others, as one would like others to treat oneself.
• One should not treat others in ways that one would not like to be
treated.
• The moral value has religious background is derived from the saying that
Do unto others as you would have them do unto you.
• The rule call for critical and creative thinking and this enable
judges to add or change the meaning of the statutes anytime.
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• This rule would indirectly make the judge to have the role to make the
law.
• Lastly, the judges would also able to bring in the subjective case such
as the morality and prejudice.
• Before resorting to the golden rule court must be satisfied about the
difficulties arising out of the literal rule.
• This rule is only used where the literal rule leads to absurdity, as was the
case of Whitely v Chappell (supra).
• The golden rule is used to probe what the statute should have said or
meant rather than what it is actually already stated there.
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1. THE MISCHIEF RULE
• The mischief rule is contained in Heydon's Case (1584) 3 Co Rep 7, a land
mark decision, in which the rule was first used for interpretation of statutes.
• Consider what the law was before the Act was passed;
• Identify what was wrong with the law;
• Decide how Parliament intended to improve the law through the
statute in question;
• Apply that finding to the case before the court. This was a sincere
16th century attempt to discover the intention of Parliament and to
apply it to cases before the courts.
• What was the mischief and defect for which the common law did not
provide.
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• The mischief rule as laid down Heydon's case is known as the most flexible
rule and it is established in the as a "rather more satisfactory approach" than
the other two established rules.
• It is used where there is still ambiguity even though the literal rule and
golden rule may be used.
• However, this rule goes much further than the golden rule in the sense of the
rule goes further in investigating the position of the statute holistically and
allows courts the freedom in the construction of statutes.
• When using the mischief rule court looks into the court's objective and
purpose of the statute, the intention of the legislature rather than depending
on the words before them.
• The rule allows judges to choose between the different meanings of the
statutory language or infer into the statute a small number of words.
• Like the plain meaning rule, the golden rule gives the words of a statute their
plain, ordinary meaning.
However, when this may lead to an irrational result that is unlikely to be the
legislatures intention, the golden rule dictates that a judge can depart from
this meaning.
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• Where a word has more than one meaning, the judge can choose the
preferred meaning; but if the word has only one meaning, but applying such
meaning would lead to a bad decision, the judge can apply a completely
different meaning.
• The mischief rule aims to interpret statute to what it meant regardless of the
wording, by referring to any previous statutes for the same purpose and by
looking at the intention of parliament for improvements in the law.
In Magor and St Mellons RDC v Newport Corporation [1950] AC 189, Lord
Denning had this to say about the mischief rule:
‘We sit here to find out the intention of Parliament and of
ministers and carry it out, and we do this better by filling
in the gaps and making sense of the enactment than by
opening it up to destructive analysis.’ What do you think
he meant by this? It was better to interpret statutes in a
way, which carries out Parliament’s intention than to be
so restricted by the exact wording that this is not
achieved. In contrast to Fisher v Bell, where the purpose
of the legislation was to prevent the sale of offensive
weapons was defeated, the courts have been seen on
occasions to go out of their way to enable a statute to
work.
• However, this rule of construction is of narrower application than the golden
rule or the plain meaning rule, as it can only be used to interpret a statute
and, strictly speaking, only when the statute was passed to remedy a defect
in the common law.
• The mischief rule was regarded by the Law Commission, which reported on
statutory interpretation in 1969, as a "rather more satisfactory approach"
than the other two established rules.
Purposive Approach
• In statutory interpretation, there is purposive approach, which is widely used
in interpreting statutes rather than the literal approach.
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• The purposive approach rejects strongly on judges limitations on searching
the meaning of the literal meaning of the word in the legislation itself.
• The approach enables the judges to look beyond the words of statute in
search of the reason of enactment and from there the meaning of the word
would be construed on the purpose of such enactment and as to give it effect.
• Legislation may set out the general principle and the fine details would left
to future to fill in the gap by the judges later on in later cases.
• Hence, the purposive approach makes sure that it does not only cover the
future but also the present.
• In order for the judges to interpret the statutes accurately, they must
understand why the Parliament passed the statute then from there the judges
would be able to determine the purpose of the enactment of the statute.
Hence, the statute would be correctly applied to achieve what Parliament
hoped for.
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alongside bills in 1999.
and later...
Preambles ceased to be
used in the nineteenth
century, except in private
Acts.
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DPP v Schildkamp (1971) Punctuation could be used
as aids in cases of
ambiguity as could the
long title of the Act,
headings and side note.
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authorities are not law and, as
such, their opinions are merely
persuasive.
Treaties
Reports of law Which lead to the passing of the
reform bodies, such Act can be used to discover the
as the Law reform, which the statute
Commission, and intended to make. These have
advisory committees become acceptable since the
Black Clawson Case (1975).
White Papers Occasionally reference will be
made to discussion documents
produced by the government
even before a Bill has been
drafted.
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Such reference is found in
112121W v MPC [2006] on
whether the word 'remove' meant
a police officer or CSO could use
force to take an under 16 year-
old home from a 'dispersal area',
they a said that it did.
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to grope around in the dark for
the meaning of an Act without
switching the light on’.
Pickstone v Freemans Hansard used to establish why
(1988) HL the Equal Pay Act had been
passed.
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Environment ex parte a limited exception to the general
SpathHolme (2000) HL rule that resort to Hansard is
inadmissible]
The Rent Acts (Maximum Fair
Rent) Order 1999 was made
under section 31 of the
Landlord and Tenant Act 1985.
Other aids
TravauxPreparatoires Original International Conventions
and preparatory material can be
used, following the case of
2Fothergill v Monarch Airlines
(1980)
RULES OF LANGUAGE
There are a number of so-called "rules of language" which "simply refer to the way
in which people speak in certain contexts" (Rupert Cross, Statutory Interpretation).
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1. EJUSDEM GENERIS
General words following particular ones normally apply only to such persons or
things as are ejusdem generis (of the same genus or class) as the particular ones.
For example:
Powell v Kempton Park Racecourse [1899] AC 143.
2. NOSCITUR A SOCIIS
This tag refers to the fact that words "derive colour from those which surround
them" (per Stamp J. in Bourne v Norwich Crematorium [1967]). For example:
Inland Revenue Commissioners v Frere [1965]AC 402.
2. LONG TITLE
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It became established in the nineteenth century that the long title could be
considered as an aid to interpretation. The long title should be read as part of the
context, "as the plainest of all the guides to the general objectives of a statute" (per
Lord Simon in The Black-Clawson Case [1975]).
3. PREAMBLE
When there is a preamble it is generally in its recitals that the mischief to be
remedied and the scope of the Act are described. It is therefore clearly permissible
to have recourse to it as an aid to construing the enacting provisions.
4. SHORT TITLE
There is some question whether the short title should be used to resolve doubt.
1. HISTORICAL SETTING
A judge may consider the historical setting of the provision that is being
interpreted.
3. PRACTICE
The practice followed in the past may be a guide to interpretation. For example, the
practice of eminent conveyancers where the technical meaning of a word or phrase
used in conveyancing is in issue.
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may indeed provide expressly that it should be read as one with an earlier statute or
series of statutes.
5. OFFICIAL REPORTS
Legislation may be preceded by a report of a Royal Commission, the Law
Commissions or some other official advisory committee. This kind of material may
be considered as evidence of the pre-existing state of the law and the "mischief"
with which the legislation was intended to deal. However, it has been held that the
recommendations contained therein may not be regarded as evidence of
Parliamentary intention as Parliament may not have accepted the recommendations
and acted upon them (The Black-Clawson Case [1975] AC 591).
7. PARLIAMENTARY MATERIALS
It was held by the House of Lords in Davis v Johnson (1979) that a court may not
refer to Parliamentary materials for any purpose whatsoever connected with the
interpretation of statutes. The prohibition covered such materials as reports of
debates in the House and in committee, and the explanatory memoranda attached
to Bills. Then in Pepper (Inspector of Taxes) v Hart [1993] AC 593, the House of
Lords significantly relaxed the general prohibition.
See Martin, The English Legal System, chapter 3, for the criteria for the rule and
criticism.
(E) PRESUMPTIONS
There are various presumptions that may be applied:
(i) Presumption against changes in the common law
(ii) Presumption against ousting the jurisdiction of the courts
(iii) Presumption against interference with vested rights
(iv) Strict construction of penal laws in favour of the citizen
(v) Presumption against retrospective operation
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(vi) Presumption that statutes do no affect the Crown
(vii) Others
See Martin, The English Legal System, chapter 3, for examples of the most
important presumptions.
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to construction now adopted by the courts in order to give effect to the true
intentions of the legislature". Lord Griffiths stated:
"The days have long passed when the courts adopted a strict constructionist view
of interpretation which required them to adopt the literal meaning of the language.
The courts now adopt a purposive approach which seeks to give effect to the true
purpose of legislation and are prepared to look at much extraneous material that
bears upon the background against which the legislation was enacted."
However, a purposive interpretation may only be adopted if judges "can find in the
statute read as a whole or in material to which they are permitted by law to refer as
aids to interpretation an expression of Parliament's purpose or policy" (per Lord
Scarman in R v Barnet LBC [1983] 2 AC 309).
The Law Commission (1969) emphasised the importance in interpretation of a
provision of the general legislative purpose underlying it. The Renton Committee
on the Preparation of Legislation (1975) approved this.
Legal Professionalism
References:
• The Disciplinary Rules: state the minimum level of conduct below which no
lawyer can fall without being subject to disciplinary action.
• Tom Ojienda (2011): Professional Ethics; A Kenyan Perspective.
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• The general duties of the advocate (chapter two)
• Postscript.
• They must have character and integrity and must “walk the talk”. Ogoola.
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• They must have the full understanding and complete commitment to observe
and uphold the profession’s creed and doctrine of ethics.
• The lawyer’s self-esteem, as well as the reputation and stature of the entire
profession, flow from each individual’s strict adherence to that creed and
doctrine.
Professional ethics
• These are the moral values, standards governing use of one’s specialized
knowledge in the provision of services.
• Ethics has been called “the science of the ideal human character”; in terms
of: “moral action, conduct, motive or character; … containing right or
befitting; conforming to professional standards of conduct.
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• A cardinal principle of lawyering requires complete loyalty and
service in good faith to the best of the lawyer’s ability.
• A lawyer must devote his full and faithful effort to the defence of his
client: see Johns v Symth, 176 F. Supp. 949,952 (E.D. Va, 1959);
• Since lawyers are the guardian angels of the administration of justice, they
should not only avoid impropriety, but should avoid even the appearance of
impropriety.
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• In Uganda, there is the ethical Code of Conduct, which as Justice Ogoola
says
• “is the oil that lubricates the rigid and mean machine joints of the
lawyer’s practice, to ensure smooth, cordial, coherent and harmonious
transaction of the tumultuous business of lawyering where tensions
are stretched taut; and where civility is in short supply.
• These professional ethics are for every lawyer, young old, senior or junior,
academia
• Who am I?
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• What will I do to make this world and your country a better
place to live in?
• Ethics deal with matters of conduct, its active and practical role and
what professionals ought to do.
• Services offered are for benefitting the public and not individuals and
where there is conflict between the public and individual, the public
interest will prevail.
• This requires them to act in utmost good faith and due diligence when
dealing with clientele.
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• Therefore, lawyers are prohibited in using client’s money, property or
information for their personal benefits or charging unreasonable fees
for services.
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• It is for this reason why code have evolved world over to guide the legal and
other professions, i.e. engineers, doctors, architects etc.
• When these standards are breached, there are sanctions, which are imposed,
and they are enforced by the respective disciplinary body.
• There are also restrictions imposed on the lawyers which include the
following:
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• Anti competition rules
• Regulation of performance
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• Good voice
• Command of language
• Confidence
• Independence
• Courtesy
• Practical judgment
• Experience
Challenges to professionalism
• The challenge of a culture of self-interest and favouritism:
• In Uganda we see many instances where people choose self-interest
over ethical and legal obligations.
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• This culture results in widely held perception that who you know has
more to do with the result you will get in court than what is right and
just.
• The adversarial nature of our legal system causes some to believe that
the duty of the advocate is to do whatever is in the best interest of the
client.
• Such advocates are also unlikely to consider the harm that unethical
practices can cause to opposing parties, the justice system or society
in general.
• Advocates must rise above the tactics of bribery and the exploitation
of relationships. Results within the justice system should be the
product of the facts and the law.
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• If people believe that without corruption you cannot access justice is
destructive to the justice system. This is one explanation of the
prevalence of mob justice.
• Public perception is that lawyers are liers and judicial officers are also
corrupt. This perception is not conducive to the a respected
profession.
• Honesty must be core value in the practice of law.
• Advocates must know they are “moral actors not tools of their
clients.”
• There must be trust of the legal profession and judicial system, and
the public should for instance stop thinking that without bribing a
judge you cannot get justice.
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• There is a regrettable tendency that lawyers on the whole cannot be trusted.
• This is what one author termed as “mis-coupling of these two key ethical
duties.”
• The lawyer's skill is to weave stories that are in most cases false out of
statements that are true. They deliberately undermine the credibility of
truthful information and evidence that may be damaging to their clients.
• They make great efforts to encourage court and others to form misleading
impressions of their clients and of past events.
• On the contrary, most lawyers will probably agree that, in their pursuit of
values other than truth, they have not merely the right but even the duty to
mislead. If a business client does.
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Advocates and Judicial Officers
• Objectives of the lecture
• Define the functions and duties of advocates and judicial officers as
officers of court.
The Judiciary
• The Judiciary is an independent legal organ comprised of Courts of
Judicature as provided for by the Constitution.
• The highest court in Uganda is the Supreme Court followed by the Court of
Appeal, which also sits as the Constitutional Court in determining matters
that require Constitutional interpretation, the High Court of Uganda has
unlimited original jurisdiction.
• The Supreme Court bench is constituted by the Chief Justice and not less
than six Justices. Five Justices are sufficient to hear most cases, but when
hearing appeals from decisions of the Court of Appeal, a full bench of seven
justices has to be present.
• The decisions of the Supreme Court form precedents that all lower courts are
required to follow.
• These are various courts of judicature, which are independent of the other
arms of government. They include the magisterial courts, High Court, Court
of Appeal and the Supreme Court.
• The High Court is headed by the Principal Judge who is responsible for the
administration of courts and has supervisory powers over Magistrate's
courts.
• The High Court has five Divisions: the Civil Division, the Commercial
Division, the Family Division, the Land Division and the Criminal Division.
• Subordinate Courtsinclude theChief Magistrates Court, Industrial Court
Magistrates Grade I and II Local Council Courts levels 3-1 (sub county,
parish, and village).
Tribunals
• Specialized courts or tribunals form part of the judicial structure e.g.
Land Tribunals
• The rational of establishing Land Tribunals was an outcry that the courts
were corrupt in adjudicating over land disputes. As noted in Chapter 2, these
were recently dismantled.
The role of the JSC
• Handle complaints against the Judicial officers’ mala practices and case
backlog.
• For instance against High Court judge AnupChoudry Singh when Uganda
Law Society petitioned the JSC to retract his appointment over ethical issues
during his previous legal practice in the UK.
• There have been complaints against High Court judges, one against a Court
of Appeal justice and none against Justices of the Supreme Court.”
• The Kenya model requires the Chief Justice to be part of the JSC, the body
charged with recruiting judicial officers and watching over their conduct.
• The JSC should have full time members picked from the Ministry of Justice
and Constitutional Affairs under which it currently falls.
Principles governing judicial independence
• Judges…. persons of integrity and ability with appropriate training
and qualifications in law.
• Impartiality in accordance with the law and authority without fear,
favour or ill-will is the essence of the independence of Judges shall
exercise judicial power impartially.
Challenges
• Various factors hinder access to justice and they include physical,
economic, social and cultural norms and practices.
• The exception is for persons that have been charged with serious crime,
i.e. crimes for which the sentence is life imprisonment or death under
mandatory legal aid by virtue of Article 28(1)(e) of the Constitution.
• Poverty still makes it extremely difficult for most Ugandans to access the
High Court though there are 10 circuits across the country again because
of the need for representation and long distances to travel to circuit
courts.
• Until 2007, there was no Circuit in Northern Uganda due to the armed
conflict with the LRA).
• The Court of Appeal and Supreme Court in Kampala are the most
inaccessible both physically and for economic reasons.
• Both the law and courts are shrouded in myths and mystery to the
ordinary Ugandan, causing fear and a lot of uncertainty, because most
people associate courts with criminal trials and imprisonment.
• “Those aspects of any set of good practices that their legal systems
allow for” and encourages States to implement the good practices
that are “appropriate to their circumstances and consistent with
their domestic law, regulations, and national policy, while
respecting applicable international law.”
• The LCCs and clans seem to be bearing the greatest responsibility for
disputes, which they are ill-equipped to do, prompting a key finding of
the Integrated Study on Land and Family Justice that the jurisdiction of
family justice institutions needs to be redefined.
• This has its challenges in light of the gendered biases discussed above in
these fora, especially against women and children.
• FCCs have not been successful in improving access to justice for women
and children in maintenance and custody cases because the courts are not
geographically accessible. They have also been affected by the program
for the professionalization of the bench.
• Whereas in the Charter of the United Nations the peoples of the world
affirm, inter alia, their determination to establish conditions under which
justice can be maintained, and proclaim as one of their purposes the
achievement of international cooperation in promoting and encouraging
respect for human rights and fundamental freedoms without distinction as
to race, sex, language or religion,
• Whereas the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment provides that a detained person
shall be entitled to have the assistance of, and to communicate and
consult with, legal counsel,
6. Any such persons who do not have a lawyer shall, in all cases in which
the interests of justice so require, be entitled to have a lawyer of
experience and competence commensurate with the nature of the offence
assigned to them in order to provide effective legal assistance, without
payment by them if they lack sufficient means to pay for such services.
11. In countries where there exist groups, communities or regions whose needs
for legal services are not met, particularly where such groups have distinct
cultures, traditions or languages or have been the victims of past
discrimination, Governments, professional associations of lawyers and
educational institutions should take special measures to provide
opportunities for candidates from these groups to enter the legal profession
and should ensure that they receive training appropriate to the needs of their
groups.
12. Lawyers shall at all times maintain the honour and dignity of their
profession as essential agents of the administration of justice.
14. Lawyers, in protecting the rights of their clients and in promoting the cause
of justice, shall seek to uphold human rights and fundamental freedoms
recognized by national and international law and shall at all times act freely
and diligently in accordance with the law and recognized standards and
ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
16. Governments shall ensure that lawyers (a) are able to perform all of their
professional functions without intimidation, hindrance, harassment or
improper interference; (b) are able to travel and to consult with their clients
freely both within their own country and abroad; and (c) shall not suffer, or
be threatened with, prosecution or administrative, economic or other
sanctions for any action taken in accordance with recognized professional
duties, standards and ethics.
18. Lawyers shall not be identified with their clients or their clients' causes as a
result of discharging their functions.
20. Lawyers shall enjoy civil and penal immunity for relevant statements made
in good faith in written or oral pleadings or in their professional appearances
before a court, tribunal or other legal or administrative authority.
23. Lawyers like other citizens are entitled to freedom of expression, belief,
association and assembly. In particular, they shall have the right to take part
in public discussion of matters concerning the law, the administration of
justice and the promotion and protection of human rights and to join or form
local, national or international organizations and attend their meetings,
without suffering professional restrictions by reason of their lawful action or
their membership in a lawful organization. In exercising these rights,
lawyers shall always conduct themselves in accordance with the law and the
recognized standards and ethics of the legal profession.
Disciplinary proceedings.
26. Codes of professional conduct for lawyers shall be established by the legal
profession through its appropriate organs, or by legislation, in accordance
with national law and custom and recognized international standards and
norms.
29. All disciplinary proceedings shall be determined in accordance with the code
of professional conduct and other recognized standards and ethics of the
legal profession and in the light of these principles.
The role of a lawyer
A lawyer's job is to listen to your problem, give you legal advice, discuss your
options, take instructions about what you want to do and help you understand how
the law applies to your case. Your lawyer may even represent you if you go to
court.
When a lawyer is working for you, they have a number of duties. They must:
• Follow instructions
• Maintain confidentiality
• Avoid conflicts of interest
• Communicate efficiently and in a timely manner
• Act honestly and in your best interests
• Act with skill and diligence
Follow instructions
Your lawyer should listen to you, give you advice, take instructions about what
you want to do about your legal problem and then carry out those instructions.
It is important that you are honest with your lawyer as their advice will depend on
the information you give them.
After listening to you, your lawyer will give you some advice. Sometimes it may
be difficult for your lawyer to give you legal advice straight away. They may need
to do some research and give you advice later.
Your lawyer has a duty to advise you of all your options. You should consider the
advice your lawyer gives you, however, the final decision about what you want to
do, will be yours.
If you don't understand what they have told you, you should tell them.