- The Tools And Techniques Of Judicial Creativity And Precedent In India
- The Tools And Techniques Of Judicial Creativity And Precedent Decision
A 374 H Tools and techniques of Judicial creativity and precedent Dr. Mona purohit For Student of Madhya Pradesh Bhoj Open University,Bhopal LLM, 2nd year.
Legal reasoning is a method of thought and argument used by lawyers and judges when applying legal rules to specific interactions among legal persons. Legal reasoning in the case of a court’s ruling is found in the ‘Discussion or Analysis’ section of the judicial ruling.
- Legal reasoning are the tools of the lawyer’s trade. In this section, we learn about these tools and practice using them creatively. The first step in effective legal reasoning is the ability to read a legal rule – such as an article in a code – and figure out how it works. Laws are often written in a way that makes them difficult to.
- The Tools And Techniques Of Judicial Creativity And Precedent. 9/26/2019 Extracts from this document. Introduction To what extent do the doctrines of precedent Curb.
It is here that the court gives reason for its legal ruling, and it helps other courts, lawyers and judges to use and follow the ruling in subsequent proceedings. Therefore, the ‘discussion or analysis’ section must be well reasoned and written.
Precedent and Analogy
The two central forms of legal reasoning are arguments from precedent and analogy. These are found in many legal systems such as the common law which is found in both England and the United States.
- Precedent is where an earlier decision is applied in a later case because the two cases are same.
- Analogy involves an earlier decision being used in a later case because the later case is similar to the earlier one.
Precedent and analogy do however present philosophical problems. For instance, when are two cases deemed ‘same’ so as to apply precedent? When two cases are considered ‘similar’ to justify analogy? In both situations, why should the decision in the earlier case affect the decision in the latter case?
Inherent within legal reasoning is the acceptance of the law and a leaning towards working within the existing legal framework. It is true to say that there is a bias towards maintaining the existing rules. Nevertheless, the bias does not presume the law as it is to be just, fair or practical and thus immune from change.
Judges have often in the past made use of provisions in the law to avoid applying precedent or analogy in instances where such an application would result in unfair or undesirable outcomes.
Elements of Legal Reasoning
Legal reasoning reveals why and how the court, lawyer or judge came to their decision or argument on the case.
There are core elements that must appear and be addressed in the reasoning:
- The question or the legal issue before the court
- The relevant facts of the case
- The legal rule
- Other considerations that may be brought before the court
As such, there is the burden to address the stated elements clearly and concisely. This may be done using a deductive or analytical reasoning.
Deductive Reasoning
This is a means of drawing out ruling from another judicial opinion, or existing constitution, legislative provision and applying it in another case. The rule statement is mostly broad rather than narrow when using deductive reasoning. This approach is mechanical and is therefore effective only in ideal situations and often unsatisfactory.
The approach faces many challenges among them being:
- Semantic difficulty – due to the various meanings that words hold, it is often impossible to attribute one particular meaning to a specific word and so to be understood by all parties
- There may arise unremunerated circumstances that would demand a different legal treatment
- The occurrence of obstacles preventing the upholding of previous rule statements
- Rules based on ontological principles being insufficient to determine between conflicting interests
Analogical Reasoning
This involves the identification of the similarities and differences of the facts in the precedential and the case to be determined. After the identification, then deciding whether the case to be determined is similar or different from the precedent in the important aspects with regards to the matter being decided. Following the findings, the case precedent may then be followed or distinguished.
It is important to note that there are peculiar situations where both of the above methods will not suffice in determining a case, and the judge may then rule according to personal preference.
The Tools And Techniques Of Judicial Creativity And Precedent In India
Circumstances that may prompt such a treatment include but are not limited to:
The Tools And Techniques Of Judicial Creativity And Precedent Decision
- Where the law is obscure: the rules are too fragmentary, imprecise or partial to describe the present case facts
- Where there are no rules provided