APPLICABILITY AND THE ROLE OF THESE SOURCES IN CONTEMPORARY AND EARLY SOCIETY CONTENTS
1.0 Introduction
2.0 Objectives
Main Body
The use of legal concepts in legal reasoning
Logic: deductive and inductive reasoning
Public policy, common sense, morality and ordinary sense of justice
4.0 Conclusion
5.0 Summary
6.0 References/Further Readings
INTRODUCTION
Lawyers/judges rely on the applicability of a combination of these sources in the preparation of their cases or in the determination of legal issues arising before them. They often take an entirely different approach from what a layman would have expected to be their decision on certain factual situations. This is because they are guided by law and legal principles which they must apply appropriately. This unit will take us through how this can be effectively done.
OBJECTIVES
This unit is to help students understand how judges arrive at decisions. The unit also discusses the interplay between the paths to the decisions of judges in their use of deductive and inductive analogy, logic, basic principles of justice, public policy, morals, common sense, etc. The hierarchy of the several tools at judges’ behest is examined thoroughly.
MAIN BODY
- The use of legal concepts in legal reasoning
In coming down to their decisions, judges and lawyers alike often rely on legal concepts which have acquired some legalised meanings. This is one of the peculiarities of legal reasoning. A layman is often bothered by the fact that lawyers/judges do not decide cases by considering directly the merits of the possible alternative solutions to them. They are further bewildered by the fact that judges/lawyers are primarily preoccupied with categorising the cases coming before them into some already pre-determined categories or ‘legal concepts’ and then decide such cases according to the categories or concepts under which they fall.
Thus a judge would have to resort to whether someone has already assumed ‘possession’ to determine the question of ownership; whether ‘property’ has passed on to another person; or whether a particular union is a ‘legal person’.
In as much as resort to these legal concepts may appear to portend grave danger, the fact cannot be gainsaid that all developed legal systems make extensive use of them and they cannot therefore be foregone.
You are expected to learn about these legal concepts and be conversant with the various instances where judges and lawyers alike often resort to them for the proper determination of cases before them.
Self-Assessment Exercise (SAE) 1
Salmond observes that ‘sometimes this will all point to the same conclusion. At others each will pull in a different direction; and here the judge can only weigh one factor against another and decide between them. The rationality of the judicial process in such cases consists in fact of explicitly and consciously weighing the pros and cons in order to arrive at a conclusion’. Discuss.
Logic: deductive and inductive reasoning
Some writers have denied that there are cases in which judges can reach a decision by the straightforward application of a rule. It is useful, therefore, to start by reasserting that there are cases, especially many of the routine cases handled at the lower levels of the judicial hierarchy, which can be decided by a purely deductive application of known, clear and uncontroversial rules of law. A typical example of deductive reasoning is as follows:
Men are mortal.
Socrates is a man.
Therefore Socrates is mortal.
The above is an example of a valid deduction. ‘Valid’ means that if the two premises are true, then the conclusion must necessarily be true also.
A typical example of deductive reasoning in a legal context is provided below:
‘Any undischarged bankrupt shall... be guilty of an offence... if he obtains credit to the extent of N100 or upwards from any person without first informing the person that he is an undischarged bankrupt’. X, being an undischarged bankrupt, has obtained credit to the extent of N100 from Y, without first informing him that he was an undischarged bankrupt. Therefore, X is guilty of an offence.
The above is also a valid deduction; if the truth of the premises is accepted, it would be self-contradictory to deny the truth of the conclusion. But, of course, logic itself cannot guarantee the truth of the premises. If the major premise were not an accurate expression of the law or the minor premises were a wrong description of what in fact happened, then the conclusion would be wrong even though the argument itself is valid.
On the other hand, while deductive reasoning proceeds from a general/major premise to a minor/particular conclusion as we have shown above, an inductive reasoning is just the opposite. An inductive reasoning proceeds from a particular premise to a general conclusion. An example goes thus:
Yemisi is lazy;
Yemisi is a woman;
Therefore all women are lazy.
This also may be applied to legal propositions. Self-Assessment Exercise (SAE) 2
Logic and common sense lead to judges making law. Discuss.
- Public policy, common sense, morality and ordinary sense of justice
While judges are expected to always align their decisions with laid down legal rules andconcepts, they are equally guided by public policy, common sense, morality and ordinary sense of justice. Public policy has been employed by the court to deny some rights, even though Lord Denning has warned that judges should be careful when resorting to public policy as a ground for denying a right because, according to him, public policy may turn out to be an unruly horse if manned by a careless rider. Thus, while the law allows the members of the populace to have audience to court proceedings, public attendance at some proceedings is proscribed on the ground of public policy.
Morality is another key factor that may condition judges’ decisions. Even though it is clear that the law will not necessarily legislate morals, we have shown in unit 1 of the 2nd Module that law may legislate morals at times. In the same manner, judges are swayed by moral dictates when writing their judgment but they have the herculean task of aligning or subsuming their desire for morals under available legal concepts.
Common sense and ordinary sense of justice are also a veritable tool used by judges when determining their decisions in every given case.
Thus, the first point of call for judges is to place reliance on legal concepts/rules, after which they can rely on public policy, morality, ordinary sense of justice and/or common sense in that order.
Self-Assessment Exercise (SAE) 3
What are the several tools a judge may refer to in reaching a decision?
Conclusion
This unit has taught us the various determining factors that shape the decisions of judges. It has opened our eyes to the fact that judges are primarily expected to base their decisions on legal rules and concepts, and secondarily on other tools at their behest such as public policy, morality, common sense and ordinary sense of justice.
SUMMARY
In this unit, the following have been explored:
- The use of legal concepts in legal reasoning
- Logic: inductive and deductive logic
- Public policy, common sense, morality and ordinary sense of justice
REFERENCES
Funso Adaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communications, Lagos, pp. 254 – 288
Glanville Williams, Learning the Law, 11 th ed., Stevens and Sons, London, 1992, p. 112 – 138
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 313 – 328 Keith Evans, Advocacy at the Bar: A Beginner’s Guide, Blackstone Press Limited, London, 1983 (Read generally).