1 Introduction to Law

1. Introduction to Law: Q&A

1. What is the difference between law and laws?

Law and laws is not the same thing. Law is power and requires legal proof through reason. Laws are the tools to achieve law. Laws are changeable, law is not.

1. What is the difference between legal power and arbitrary power?

Law is the exercise of power constrained by the exercise of reason. If there is no reason or justification in doing something, then there is no legal power but arbitrary power and no law.

1. Under what circumstances can a nation be “lawless?”

For nations to act within their laws, legal proof must be there. A person accused of murder must be proven to be the murderer. If the nation’s laws can not provide such reasons then the ordered death sentence in such a state is not a “legal” execution but simple murder by the state.

1. What is the basis for legal proof?

The requirement for legal proof is the burden of proof. Meeting the burden of proof in court effects a change in the status quo between the accuser and the accused.

1. What is the flip-side of burden of proof?

While burden of proof is within the realm of the prosecution, benefit of doubt is within the realm of the defendant on each aspect of the charge. The benefit of doubt continues to exist until the burden of proof is met. Only then can the benefit of doubt change, too.

1. Is it possible for the burden of proof to shift away from the prosecution or the plaintiff?

If the burden of proof moves from the prosecution to the defendant, a change of the status quo is signaled.
The party without the burden of proof wins.

1. Is there a common standard that the burden of proof always adheres to?

Burdens of proof determine the slant of the law, the overall trend or pattern of legal decisions.

1. Under what circumstances are facts not facts in the legal sense?

A fact that cannot be legally proven is not a legal fact; if something cannot be proven in court, legally it never happened.

1. What is the purpose of legal proof?

Legal proof is not about knowledge; it is about consequences. To say a burden of proof has been met is equivalent to saying the party who met it is legally entitled to the change it seeks in the legal status quo; the change sought is now legally compelled.

1. What is the difference between proof beyond a reasonable doubt and proof on a balance of probabilities?

Proof beyond a reasonable doubt and proof on a balance of probabilities are not the same. Proof beyond a reasonable doubt is looked at on one case alone and compared to an abstract standard. Proof on a balance of probabilities is looked at as a comparison between two cases.

If the witness described the killer as a giant, then a man taller than the average man would be a good suspect. If two tall men of similar size are caught and accused of the crime, the balance of probability may exclude either one as the murderer since no direct link can be drawn to one person in particular.

Balance of probabilities is not really a standard of proof but a form of comparison. If the case in favour of the allegation is more convincing than the case against it, the law says the plaintiff has won.

1. What is the relationship between presumption of innocence and proof beyond a reasonable doubt?

Presumption of innocence is the ideology which proof beyond a reasonable doubt is based on. Presumption of innocence gives rise to the legal proof of guilt. As presumption of innocence is weaker in civil settings, it gives rise to a third standard of proof, “clear and convincing evidence.”

1. What is the process that allows the burden of proof to move?

The burden of proof always starts with the plaintiff or the prosecution. During a trial, it can move to the defendant. The burden moves to the defendant differently in ordinary legal proof and proof of guilt. In ordinary legal proof, the burden shifts to the defendant. In proof of guilt, the burden splits and part of it moves to the defendant. The other part remains where it was.

Wigmore describes the persuasive burden as the burden of satisfying the jury and the evidentiary burden as the burden of satisfying the judge.

The control this power gives judges over juries can be illustrated by Metropolitan Railway Co. v. Jackson. Jackson was a passenger on the Metropolitan Railway in London. At King’s Cross Station the carriage in which he was riding was full. At Gower Street Station there was a great demand for seats and three people forced themselves into the carriage where Jackson was seated. Since there were no seats vacant, the newcomers were obliged to stand.
At the Portland Road Station there was a rush of fresh passengers. The door of the carriage in which Jackson sat was opened by some persons, who looked into the carriage, saw it full, and shut the door. Then others came, opened the door again, and some persons tried to get into the carriage. Mr. Jackson rose from his seat to prevent them.

While Jackson was standing with his hand and his arms extended, the train began to move. Jackson put his hand on the lintel of the door to save himself from falling. As he did this, a porter came up, sent away the people who were trying to get in, and slammed the door shut. Jackson's thumb was caught in the door and crushed.

Jackson said the railroad was negligent. He said it was negligent of the porter to slam the door the way he did and he said it was negligent of the railroad not to have porters at Gower Street to stop people from getting into the full carriage. He offered as a witness, a passenger who had been on the train with him. The passenger said he saw no porters at Gower Street and Jackson argued that, from the facts taken as a whole, the jury could infer negligence.

The railroad argued that the presence or absence of porters at Gower Street was irrelevant: it had nothing to do with the accident. The railroad also said that the porter at Portland Road had to slam the door quickly because the train was leaving the station and about to enter a tunnel. They said the accident had been caused by Jackson standing up when he should not have and putting his thumb in the door hinges. The railroad argued there was no evidence from which a reasonable jury could find or infer that it or its porter had been negligent. They asked the judge to direct a verdict for them.

The trial judge refused. He allowed the case to go to the jury, which found for Jackson. The railroad appealed. The first appellate court sustained the trial decision, so the railroad appealed again. The second appellate court divided equally on whether to sustain or reverse, so once again the trial decision was sustained. The railroad appealed a third time, to the House of Lords, and the House of Lords reversed the trial decision, holding that there had not been enough evidence to send the case to the jury.

The judge has a certain duty to discharge and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may be reasonably inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever.

Lord Cairns went on to indicate the fears he had of what a jury might do:

To take the instance of actions against railway companies; a company might be unpopular, unpunctual, and irregular in its service; badly equipped as to its staff; unaccommodating to the public; notorious, perhaps, for accidents occurring on the line; and when an action was brought for the consequences of an accident, jurors, if left to themselves, might, upon evidence of a general carelessness, find a verdict against the company in a case where the company was really blameless.

We have juries because we used to believe it was important for certain decisions to be made by juries, rather than judges. We use juries today much less than we used to. This may mean we no longer think they are as important, but even at the height of their use, judges distrusted them. A judge might think the party with the burden of proof had failed entirely to meet it, but a jury might come in with a verdict for that party. The evidentiary burden is a legacy of this distrust.

13. When does burden of proof come into play?

Burdens of proof do not arise until an allegation of fact is put in issue by a denial.
If there is no denial, then the accused is said to have pleaded and has thus taken on all or some of the guilt alleged by the prosecution or plaintiff.


Basically, a criminal defendant must plead either guilty or not guilty. A plea of guilty, as I have indicated, means the prosecution does not have any burden of proof. A plea of not guilty puts into issue all the facts in the indictment and casts the burden of proving the material elements of the offence on the prosecution.

In a civil case, the pleading of the defendant is much more complicated. The answer a civil defendant files may take three forms.

1. 1. The defendant may move for a dismissal of the action on the ground that the plaintiff’s statement of claim does not state a cause of action.

In other words, the defendant may say that the action could not succeed even if the facts alleged by the plaintiff were proven. Until quite recently, this was called a “demurrer” and since it raises an issue of law, rather than an issue of fact, on traditional legal theory a demurrer attracts no burden of proof.

1. 2. The defendant may deny one, several or all of the facts alleged in the plaintiff’s pleadings.

The defendant’s denial of a fact casts the burden of proving that fact on the plaintiff. This is Stone’s point: without the defendant’s denial there is no burden of proof. If the defendant does not deny a fact, that fact is taken to be admitted and the plaintiff does not have the burden of proving it.

1. 3. The defendant may allege new facts, which, if proven, defeat the plaintiff’s claim.

To allege new facts that would defeat the plaintiff’s claim is called “raising an affirmative defence.” Affirmative defences are used in ordinary legal proof. They are not used in proof of guilt, or not used the same way. An example of an affirmative defence can be seen in the case mentioned earlier, Ryder v. Wombwell. In this classic case, a jeweler sued a rich young man for two items the young man had purchased on credit: a pair of diamond-and-ruby cufflinks and a silver-and-gold cup. The young man defended the suit on the ground that he was less than 21 years old when he contracted the debts. Ordinarily, since a minor cannot enter into a valid, binding contract, the debts of a minor cannot be enforced and the young man’s assertion that he was a minor when the debt was incurred is a classic affirmative defence. It is also an affirmative defence when the defendant in a libel action, instead of denying the allegation of saying or writing certain things about the plaintiff, claims that what was said or written about the plaintiff was true.
If the defendant raises an affirmative defence, the plaintiff must answer it. If the plaintiff does not deny the facts alleged in the affirmative defence, they are taken to be admitted and there is no burden of proving them. The affirmative defence succeeds and the plaintiff’s action is summarily dismissed. If the plaintiff does deny the facts alleged by the defendant in an affirmative defence, then the plaintiff’s denial casts the burden of proving those facts on the defendant.

A criminal defendant does not have to be particular in his or her plea. A plea of not guilty by a criminal defendant includes all three of the different answers a civil defendant may make to a statement of claim. A civil defendant’s answer, on the other hand, does have to be particular. A civil defendant must indicate which of the three types of answers is being made, but a civil defendant is not confined to making only one type of answer.

14. What is meant by pleading in the affirmative?
It is pleading in the alternative on the facts, denying some and alleging others, that causes the united burden of proof to shift in an ordinary civil trial. When the defendant denies the facts alleged in the plaintiff’s claim, this casts the united burden of proving those facts on the plaintiff. When the defendant alleges facts in an affirmative defence, this (coupled with the plaintiff’s denial of those facts) casts the united burden of proving those facts on the defendant. When the facts in issue change from those alleged in the plaintiff’s claim to those alleged in the defendant’s affirmative defence, the united burden of proof shifts from the plaintiff to the defendant.

The burden of proof can shift back and forth because there is no limit to the number of pleadings the parties can file. A plaintiff can file a rebutter to a defendant’s answer, a defendant can file a sur-rebutter to a plaintiff’s rebutter, a plaintiff can file a rejoinder to a defendant’s sur-rebutter, and a defendant can file a sur-rejoinder to the defendant’s rejoinder. Each of these can be in the alternative, and every time a new pleading is filed that denies facts in the last pleading and asserts new facts, the burden of proof, with both its evidentiary and ultimate components, shifts.

In Ryder v. Wombwell, the jeweler responded to the defendant’s affirmative defence of minority by arguing that while a minor’s debts could not normally be enforced, these debts could be enforced because they were contracted for “necessaries”. The legal rule was (and still is) that while a minor’s contracts cannot be enforced, a minor’s contracts for “necessaries” can be enforced. The actual case of Ryder v. Wombwell dealt solely with whether the cups and the cufflinks were necessaries, but if we imagine what the full pleadings in such a case might have been like, we can see how the burden of proof shifts.

The jeweler, as the plaintiff, had to plead the fact of the sale on credit and the fact that he had not been paid. The defendant, the young man, might have answered in the alternative, saying, I never bought the cufflinks and the cup; and in the alternative, if I did buy the cufflinks and the cup, I paid for them; and in the third alternative, if I bought the cufflinks and the cup and did not pay for them, I was under the legal age to make a valid contract when the transaction took place. Then, the jeweler would have answered the young man. He would have said, you were not a minor when the sale took place; and in the alternative, if you were a minor, the contract was for necessaries.

If there had been the kind of alternative pleading I have indicated, the burden of proof would have shifted twice in the case: once from the jeweler to the young man and once from the young man back to the jeweler. First, the jeweler would have had the burden of proving the sale and non-payment. Then, the burden of proof would have shifted and the young man would have had the burden of proving his minority. Then, the burden of proof would have shifted again and the jeweler would have had the burden of proving the fact that turned out to be the issue in the case, namely, that the cufflinks and the cup were necessaries








P has a music CD and lent it to D who wants to copy it on his computer. P asks for the CD to be returned the next evening at 6.p.m. because he needs to take it to a party where he was hired to be the DJ for the evening.
D agrees to return the CD at the required time.
D copies the CD but, unknowingly to him, erases half the content of the CD, which happens to be an erasable disk. He returns the CD to P at the prescribed time.
When P plays the CD at the party he notices that half the songs have been erased. He is furious and calls up D. He has been docked half his wages and the boss has told him he won’t work again as DJ. P wants to sue D for damages to his CD, damages to his reputation, and damages occurred from loss of future work as DJ.
What does P have to prove in his allegations?
Discuss how the burden of proof might change from P to D and back.

Source: http://www.ourcivilisation.com/cooray/btof/chap180.htm

2. The Rule Of Law
The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352
"The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King".
The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance.
The essential characteristic of the rule of law are:

supremacy of law


concept of justice


discretionary power


judicial precedent


common law


retrospective


independent judiciary


restrictions


moral basis


18.1 Supremacy Of Law
All persons (individuals, institutions and government) subject to law
Supremacy of the law is a fundamental concept in the western democratic order. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.
The idea of the supremacy of law requires a definition of law (to which the above principles may go some way). This must include a distinction between law and executive administration and prerogative decree. A failure to maintain the formal differences between these things must lead to a conception of law as nothing more than authorisation for power, rather than the guarantee of liberty, equally to all.
The rule of law ensures that individuals have a secure area of autonomy and have settled expectations by having their rights and duties pre-established and enforced by law.
18.2 The Concept Of Justice
The concept of justice has three facets - interpersonal adjudication, law based on fault and an emphasis on procedures.
Interpersonal adjudicationThis aspect of the concept of justice is based upon the rights and duties of the individual person. The liberal concept of justice is an interpersonal one - resolution of conflicts between individuals. Individuals can suffer or perpetrate wrong. Individuals can be punished, protected and granted restitution. Justice is an interpersonal thing. It consists in upholding that which is right and due as between persons. Social justice which involves society and groups is a concept which is directly antagonistic to the liberal idea. It is a concept which is nebulous and non achievable. Its proponents increase state power to effect it, with counterproductive results.
Even between persons, absolute justice is frequently unattainable. The best result which is practically and logically possible is not necessarily the perfect result. For example, in motor accident cases where one person suffers brain damage due to the negligence of a drunken driver, it is practically impossible to grant full restitution to the injured person. He can be compensated for medical expenses. He can be awarded a sum sufficient to improve his situation. He cannot be restored to his pre-accident condition. His brain damage cannot be repaired. It can only be ameliorated. It is not easy to determine a just punishment for the drunken drivers.
In other cases, perfect justice is logically (rather than physically) impossible. Such cases arise in situations where there are legitimate interests on both sides but the interests are in conflict. Only one can prevail. Someone has to lose. Justice requires that the better interest should prevail but that does not mean that there is no merit in the inferior interest. The law of adverse possession provides an illustration where the conflict is between an owner who has abandoned his land and another, professing to be the owner, sells it to a person who takes possession of it and improves it. There is merit (and possibly demerit) on both sides. The best that can be done is to develop rules to help ascertain which side has the better right.
Between persons, justice consists in upholding right behaviour and the courts can adjudicate between persons. Resort to the courts is only considered when a problem (a conflict) exists. The role of the judicial process is, therefore, the resolution of conflicts. Perfect justice cannot be dispensed by the state. The role of the courts is to deal with injustice once it has already occurred.
The traditional emphasis upon adjudication and non-recognition of so-called social welfare rights is evident in the protection which the law traditionally afforded to private property. The idea of redistribution of wealth is completely alien to the common law. A rich man cannot be sued by a poor man merely for being rich. Taxation was prohibited to the executive government, being confined rather to the representatives of the nation in Parliament, who were expected to be jealous defenders of their individual liberty and property.
Inter-personal adjudication is practical and realistic. By its very nature it deals with the real problems which arise between individuals, instead of those problems which arise solely in the minds of ideologues.
Law based on standards and faultThe second facet of the liberal concept of justice is that a person should not be disadvantaged or punished except for fault (intentional, reckless or negligent wrong doing, strict liability applying in exceptional circumstances). The idea of fault is the golden thread that runs through the fabric of the legal order. The Magna Carta contains one of its early manifestations. But the whole of the common law relating to crimes, civil obligations and property rights is characterised by the notion that fault underlies punishment or deprivation. A system of sanctions based on fault presupposes known and pre-existing standards of conduct which bind the community.
The Australian industrial relations system is fundamentally structured on notions of distributive justice and undefined policy. It enables tribunals to vitiate contracts, to penalise certain classes and to reward others on the basis of unpredictable considerations, although in recent times employers have become their predictable victims. Consumer protection laws similarly disregard contractual rights and obligations in compensating losses incurred by consumers. In the field of family law, fault has been all but rendered irrelevant in the annulment of marriages, grant of custody, award of maintenance and the settlement of property. The examples can be multiplied.
The idea of commutative justice which has characterised the laws and customs of most civilised societies is now being progressively replaced by distributive justice. Commutative justice aims at correcting the violation of pre-existing rights. It seeks to give back to one what has been taken away from him or to give him adequate compensation in lieu of it. Distributive justice on the other hand aims at distributing wealth according to egalitarian schemes. In practice, distributive justice results in the creation of new rights and liabilities in substitution for those traditionally enjoyed or suffered under the law. These rights are created in accordance with the ideologies, prejudices, or subjective opinions of individual bureaucrats or members of tribunals who make decisions. Powerful pressure and interest groups influence those making the decisions. The law is particularised and rendered uncertain, thus undermining the foundations of justice and liberty.
Due processThe third feature of the liberal concept of justice is the emphasis on procedures. The liberal does not believe in the possibility of achieving equality, democracy, justice, the public good and other ideals through legislative and prescriptive action. Such a task is too complex for the human imagination, conception and execution. An emphasis on procedure is one of the foundations of the rule of law. Procedures provide for limitations on power. Procedures provide that before judicial, legislative or executive decisions are taken, a series of checks and balances are in place to mitigate against the possibility that the decisions will not be hasty, ill-conceived or based on corruption, passion, ideology or eccentricity.
The key institutional and procedural characteristics of a liberal legal order include rights which ensure that a person is not disadvantaged except according to rules of procedure and evidence established by law, which ensure a fair trial. These institutional safeguards give protection to the cluster of personal liberties associated with the criminal process, such as the right not to be imprisoned or held without trial, the right to be informed of charges and the right to be presumed innocent until proven guilty. The rules of procedure, evidence and natural justice also protect individuals from arbitrary governmental action and illegal deprivation of private rights. They are essential to the protection of individual rights of personal freedom and private property
18.3 Discretion
The keystone of the rule of law is the idea of the government of laws rather than the government of men. The keystone of the government of laws is legal control over human discretion. The existence of widespread discretion is therefore directly inimical to the existence of a liberal order. Discretions need to be exercised on the basis of justice or some real justification or even of mere reason. An unfettered discretion is an opportunity for temptation and for arbitrary, insolent, discriminatory, intrusive, socially engineering and corrupt, government. Where there are fixed laws there is (more or less) certainty, there is certainly impartiality (equality before the law) and consistency. A person may stand upon his legal rights without fear or favour. Discretion, on the other hand, undermines justice.
Discretion may exist in the context of executive, judicial and legislative branches of the modern state.
Executive discretion is the most dangerous of all forms of discretion. This is because its impact upon the citizen is immediate and uncertain. Legislative discretion is uncertain but not immediate. Judicial discretion is immediate but not uncertain. Executive discretion, in suffering from the effect of immediacy additional to uncertainty, is open to the greatest possible abuse. The administrator has immediate unfettered power over the individual who stands at his mercy. The opportunities for arbitrary, insolent, discriminatory, intrusive and corrupt activity as well as totalitarian social engineering, are maximised at this point.
18.4 The Doctrine Of Precedent
The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound (within prescribed limits) by prior decisions of superior courts. Adherence to precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. This stability gives predicability to the law and affords a degree of security for individual rights. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community.
A system based on precedent will be rational (without making reason its god), will be adaptable to varied and changing circumstances, will take into account all the varieties of human experience, will be highly practical and will be composed by the finest minds of many generations, tuned to a fine balance and learned in the art of detecting legal issues and resolving legal problems. The gradual development of the system will avoid the pitfalls of hasty and counterproductive reformism.
18.5 Common Law And Statute
The common law method of adjudication, in the context of the doctrine of judicial precedent is fundamental to the protection of rights and the prevention of arbitrary determinations.
What Is "The Common Law"?What is the common law? The word common law is used in many different contexts. The word common law is used in the present context to describe the body of legal principles and concepts which were evolved over many centuries by judges in the English courts of law. Common law became part of the law of Australia as a consequence of the settlement of Australia as a British colony.
The common law was influential in moulding both the area of and restrictions on freedom in England and those parts of the world which have the common law tradition as their legal foundation. A study of the history, development and modern undermining of the common law is crucial to an analysis of the democratic order, which it has helped to shape and underpin.
The common law is the product of long evolved social values which are judicially articulated and interpreted. "Its roots strike deep into the soil of national ideas and institutions" (C K Allen, Law in the Making Oxford (1964) p 71). These rights (it used to be argued) are ingrained in the national psyche and conduct and command respect.
The crucial importance of the common law has tended to be forgotten in recent times in the course of searching for ad hoc solutions to social problems. This tendency has been the result of the pursuit of particular goals by special interest groups in disregard of long term damage to the foundations of liberty. Even persons who recognise the importance of these rights in their general application sometimes urge departures in relation to matters of particular concern to them.
One of the greatest virtues of the common law system is to be found in its capacity to balance the individual interests in liberty with the common concerns and interests of the community.
In the modern era, there is a growing belief that the solutions to these problems can be sought by deliberate and calculated reform of the law through legislation. Reforms are formulated by law reform agencies and by political and bureaucratic authorities through processes of abstract rationalisation or imperfect empirical investigation, sometimes based on Marxist and neo-socialist ideological assumptions. The evolved law is thereby fractured and reshaped with unpredictable consequences. Another consequence of this method is that it tends to remove questions of public morality from the community itself. It results in the imposition of restrictions on liberty which are inadequately founded on public perceptions. Imperfect rationalism and empiricism are poor substitutes for the accumulated experience of the community, enshrined in the common law. The common law experience reflects the wisdom and even the follies of our civilization. However, it represents an evolved public morality which is the soundest basis for the formulation of legal precepts (subject to comments below relating to modernisation and legislation).
The Virtues Of The Common LawThe common law method, as compared to reformist legislative change, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just conduct. In deciding these disputes the courts draw upon precedents embodying the public morality which have been developed over the ages. These principles, in the words of Charles Francis, QC, in an unpublished speech "... represent the collective legal wisdom distilled over many centuries from the finest legal minds in the English speaking world for the express purpose of defining, protecting and enforcing human rights and obligations". Through the process of disputation, debate and impartial adjudication, the common law reconciles conflicting interests and develops the necessary constraints on the liberty of the subject.
The question may be asked; what makes the courts superior to politicians, bureaucrats and academics as custodians of individual freedom and public interest? Three reasons may be given. One is the impartiality and competence which is associated with courts functioning in the common law tradition. Despite frequent attacks and attempts to denigrate these qualities they remain real in the public eye. Public confidence in the judicial system, as demonstrated by surveys, (notwithstanding academic and political attacks) surpasses its confidence in political institutions, the bureaucracy, the media and academia. This confidence itself encourages and promotes the impartiality and dedication of the judiciary. A second factor is that unlike political institutions, the common law courts have no licence to commit arbitrary acts. Judicial discretions, unlike political discretions, are strictly limited to the application or adjustment of already established norms and standards. Thus there are inbuilt restraints in the judicial method which ensure a greater degree of certainty and fairness. A third factor is that the common law itself is a product of reasoned disputation where individual rights and duties are claimed and evaluated. No comparable process obtains in the political system in which ideological considerations often prevail and aggressive pressure groups exercise influence without regard to reason, justice or community values.
Common Law Needs To Be Supplemented By LegislationLegislation in a modern technological age is necessary and useful. The common law method, like all human creations, is imperfect. It can usefully be supplemented by legislative action. But modernisation is not the same as social engineering. Under the guise of modernism, social activists are implementing their policies. The complaint regarding the modern method is that the common law is being smothered out of existence and legislation has become the primary source of social regulation. Legislators and bureaucrats claiming a superior wisdom indulge in structuring and ordering society in disregard of the community consciousness and values. It is this kind of legislative activism that leads to progressive erosion of human rights under the colour of safeguarding public interests. In contrast, the common law method assimilates the public morality into legal principles through the direct participation of citizens in the assertion of their individual rights on the basis of the customary ways of the community. The restrictions on individual liberty that evolve from this process have a greater relationship to the needs of the people as perceived by the people themselves.
The common law restrictions on freedom are expressed in the form of criminal offences, civil wrongs and liabilities arising out of the sanctity of contract. When these restrictions are examined it is not difficult to see their relationship to the public morality and in particular to the religious beliefs and values of the community. For example, criminal offences such as murder, rape, theft and fraud are acts universally condemned by the ethical systems of all major religions. Such offences constitute the core of the restrictions on human conduct recognised by civilised societies. Even in the absence of major religious influence, civilised communities consider such acts reprehensible and impermissible as they jeopardise human survival and well-being.
Each common law crime thus protected an institution or value which was considered to be of fundamental importance. Offences such as murder, rape and assault protected personal physical integrity. Crimes such as larceny, fraud and cheating protected private property.
Apart from crimes which were considered as prejudicial to the community as a whole, the common law developed other restraints against causing harm to person, property and reputation by recognising numerous torts or civil wrongs. These as well as actions based on contract enabled individuals to sue for damages. Together they formed a corpus of rules determining the boundaries of permissible and impermissible conduct. The development of the common law of torts in more recent times demonstrates the dynamism of the system to accommodate the needs of changing social and economic conditions. Employers' liability to provide working conditions and training adequate for the safety of workers is one example. The application of the law of nuisance to owners of property which through neglect causes harm to others is another example.
One of the problems of applying the common law method in the modern era is that circumstances posing dangers to society can arise suddenly and the common law response (relying as it does on appropriate litigation coming before courts) may not be sufficiently rapid to avert harm. In these circumstances it becomes necessary to create safeguards by legislative action. In such situations, although the common law may not provide an immediate remedy, its basic approach will provide valuable guidance for determining the justifiability and extent of proposed restrictions. The common law approach gives predominance to community perceptions and values (including moral and religious sensibilities) rather than to the views of lobbyists and political activists. What is important in such an approach is objectivity and impartiality. In other words, the modern legislator who contemplates placing a restriction on liberty, should approximate his role closer to that of the judge than to that of an ideologue or a person with received wisdom to effect far reaching changes in the public interest. It is only by such means that we can determine the perceptions and priorities of the community.
The common law approach is also characterised by the importance attached to personal freedom, the freedom of speech and expression and the freedom to hold and enjoy property. The precedence given to these rights flows from their indispensability for the enjoyment of all other rights and liberties.
In the common law system, fairness and objectivity in the resolution of disputes is sought to be ensured by time tested procedural and evidentiary rules. Thus a person is presumed innocent until proven guilty. There are rules for the exclusion of doubtful evidence and rules that guarantee a fair hearing. There are no comparable safeguards in the legislative method of determining rights and duties. As such, the onus on legislators embarking on restrictive schemes is even greater.
The Critics Of The Common LawThe critics of the common law are never tired of pointing out the problems that have arisen as a consequence of common law decisions. In a world of imperfect human beings reacting with each other in an uncertain and accident prone environment, problems are inevitable. Yet the strength of the common law is appreciated if it is compared to other legal systems of the past and the present. If comparative studies are conducted, the record of the common law will appear infinitely superior to that of every other legal system the world has known except the civil law tradition.
The judiciary is not totally impartial and value-neutral. But impartiality is an ideal which the common law judiciary strive towards, even if imperfectly. In this context, is the solution for a lack of impartiality and the human failings, to abandon any pretence of objectivity and move to a position where rights are adjudicated upon by people who may be biased and who are freed from all the common law restrictions which aim to control and limit bias and arbitrary action? Is the establishment of tribunals with social activist and biased judges or administrators an improvement? The present trends do not inspire. Can it be said that modern activist dominated tribunals (eg the Human Rights Commission) will be an improvement on the traditional court in which the presumption of innocence and rules of evidence and procedure are important?
Although common law courts have not been value neutral, they have tended to express the prevalent values of the community. This is consistent with the idea that the law should be the emanation of the popular consciousness and not the arbitrary will of an individual or group.
The common law is subservient to laws passed by Parliament. In Australia as in England, the common law has been overlaid by statute and exists today in an emasculated form. The common law therefore, does not, as it once did, offer protection for individuals, against the over reaching and ever-expanding power of government.
In England, the common law safeguards have had no discernible effect on the rise of Parliamentary supremacy, the growth of the welfare state and the expansion of government. In fact, just as much as eighteenth and nineteenth century English government inspired constitutionalism, twentieth century English government has set precedents for expanding the powers of government at the expense of constitutional limitations. This has happened in Australia too.
18.6 Retrospective Legislation
Laws should apply prospectively and not retrospectively. A person should never be made to suffer in law (criminal or civil) for an act which was not unlawful when he committed it. Retrospective legislation destroys the certainty of law, is arbitrary and is vindictive, (being invariably directed against identifiable persons or groups). Such laws undermine many characteristics of the rule of law.
18.7 An Independent Judiciary
The most elaborate system of rights, remedies and procedures would be of little use when there is no independent, impartial and competent judiciary. The independence of the judiciary has been ensured by the judges' security of tenure as well as the judiciary's own distinguished traditions of learning, integrity and technique and the law of contempt. Independence of the judiciary was inextricably linked to the system of formal courts.
The most elaborate system of substantive, procedural and remedial provisions is meaningless without an independent, impartial and competent judiciary for one reason: administration. Without jurisdiction to administer, the law is purely academic and without a proper judiciary, the jurisdiction to administer is purely oppressive, as may be seen in numerous uncivilised countries of the world.
In order to have a proper judiciary, properly exercising its jurisdiction, several things are necessary. They fall into three broad groups: technical competence, commitment to sound ideals and finally, institutional (and therefore, personal) independence. Naturally, these groups overlap to a certain extent.
Although formal courts in Australia are yet largely independent, there has been a proliferation of a vast array of tribunals which are neither independent nor competent. These are the administrative tribunals which determine countless privileges and deprivations which are incidents of the modern welfare state. These tribunals are structurally prone to ideological manipulation and many of them are in fact directed by law to make decisions based on ideologically determined criteria. These control and/or reward systems are progressively replacing the system of independent adjudication based on formal rights. It is time for a new Coke to wage war upon those usurpers of judicial jurisdiction.
The ethos of the judiciary and the formal courts is being challenged by intellectual influences, particularly by a novel ethos of a "democratic" judiciary and by suspicions that Labor governments' policy of judicial appointment is sometimes based upon the criteria of philosophy and party loyalty before merit and judicial excellence
18.8 Limits On The Power Of The Legislature To Delegate
The purpose of legislation according to Madison was to deal with general principles. Legislation should be about general principles not about details of policies. The function of the legislature in Madison's view is not to espouse or promote "various and interfering interests". Thus, Madison (the most influential of the draftsmen of the US Constitution) thought that legislation is primarily concerned with the determination of what Hayek was to later call "the rules of just conduct". Madison refers to "the good of the whole", "the common good", "the public good" and "the interest of the people" in relation to the proper aim of government. However, Madison's idea of the public good is very different from that of the modern interventionist.
Delegation of the law making function is inevitable in the modern state. The objectionable aspects of delegation which have undermined the rule of law are: the sheer magnitude and volume of delegated legislation, the abdication by Parliament of its duty to lay down "general principles" and the inordinate extent of uncontrolled discretions that have been conferred on the executive.
The control by Parliament over "general principles" is important for the functioning of the democratic order. Parliament is elected by and responsible to the electorate. A governing political party in Parliament is elected on the basis of its manifesto which then constitutes its mandate. If Parliament is restricted to legislation on "general principles", electoral control over Parliament and also over the executive is a possibility. The executive must act within the confines of laws passed by Parliament - otherwise it will be subject to the doctrine of "ultra vires" (acting beyond authority) and its actions will be invalid. The people may compare legislation with the Party manifesto and pass judgment. Thus the control over Parliament and the executive by the electorate breaks down due to:

1. the sheer volume of delegated legislation, and


2. delegation to the executive of legislative power on matters of "general principle".

18.9 The Moral Dimension


values neutrality



section 8.1

section 18.2section 8




























3. Reasoning by Analogy

Scenario:

Mother has two sons. John is 16 years old, and Bill is 10 years old. John is allowed to stay up till 10 p.m., but Bill has to go to bed at 8 p.m. Bill argues that he should be able to stay up till 10, just like his brother, because he and John are both children of the same mother.

How can Bill’s argument be structured?




What is the common category in Bill’s argument? ________________________________________________________________________________________________________________________________________________

Bill’s mother argues that John is older and needs less sleep than Bill. For her, there is no analogy.

What is her argument based on? ________________________________________________________________________________________________________________________________________________

An argument is valid if there is no significant difference between two cases; it is not valid if there are significant differences in the classes.

Practice:
Decide if there is a significant difference in the cases below:

1. Michael has been charged with breaking and entering a home in a quiet neighborhood on the Westwood Plateau in Coquitlam. Police found computer equipment, jewellery, and a few hundred dollars in cash in the trunk of his car, all of which could directly be traced back to the home he had broken into.

2. John was charged with ripping off a grow-op after police had discovered 100 plants of marijuana in the trunk of his car. All plants had been traced to the same address.

3. Peter had entered the local 7-11 at about 10 p.m. The store was empty. Peter got himself a cup of hot coffee and proceeded to the counter. He put a five dollar bill on the counter. When the clerk opened the till to give Peter his change, Peter threw the hot coffee into the clerk’s face, punched him in the face, and grabbed a handful of bills from the till. He then took off. He ran across the street to a nearby park, but the police search which followed only minutes later did not yield any results.

4. Vincent went to the local corner store to buy some pop, chips, and a couple of candy bars. When the clerk rang up the total, Vincent produced a small hand gun which he had concealed in his pocket. He demanded all the cash in the till, knocked the clerk unconscious, and then took off.

What are the relevant facts?
What action should be taken?
What are the similarities and differences in each case?
Are the similarities more important than the differences or vice versa?
What is the context of the stories?
What is the effect of context on deciding similarities or difference in outcome?

5. Paul, Martin, and Billy went to the club for a good time. They got there at 11 p.m., and the band had already made the dance floor sizzle. Martin spotted a hot blonde at a table near the dance floor and decided to walk up to her and ask her for a dance.
Just as he got there, Raul, a large muscular man came up to Martin and told him to leave his girl alone. Martin wouldn’t take no for an answer and began to argue with Raul. Raul pushed him aside, took his girl to the dance floor, and left Martin standing on the sidelines. Martin felt humiliated in front of his buddies and plotted revenge.
Half an hour later, Martin, who had been watching Raul on and off, noticed that Raul headed off to the men’s room. He followed quickly. There was no one in the men’s room except Raul and Martin. Martin took a swing at Raul, grabbed him by his head and pushed him towards the floor. He pounded his head into the floor several times until Raul was unconscious. Then, Martin quickly went back outside.

Analyze the actions of Raul and Martin.

For legal analytical reasoning, the base point is the binding precedent and can be found in the source of law: Constitution, Statute, or Administrative Regulation? The goal is to determine whether one's facts fall within the meaning of the constititutional, statutory or regulatory provision.
If there are no constitutional provisions, statutes, or administrative rulings that control, the binding precedent will be case law.
The precedent will be followed (binding)(controlling):∙ if the facts are substantially similar, and ∙ for a similar contextual purpose;
The precedent will be distinguished (not binding; not controlling): ∙ if the facts are substantially dissimilar, or ∙ if the context is dissimilar.
EXAMPLES
(The following examples are loosely based on examples used by Prof. Steven Burton, in his book on Legal Reasoning)
Case 1. Abbott stole Costello’s bike and sold it to Hale, who knew that it had been stolen. Costello sued Hale to recover the bike.
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Outcome: Costello wins.
Case 2. Abbott bought Costello’s bike, giving as payment counterfeit money. Abbott knew it was phony money.
Costello discovered the fraud and sued Abbott for the return of the bike.
 
 
Outcome: Costello wins.
Case 3. Similar to Case 2, Abbott obtains bike by fraud, misrepresenting some important fact that induces Costello to part with title to the bike -- except before Costello can sue to recover the bike, Abbott sells it to Hale, who does not know of Abbott’s fraud, and Hale pays Abbott the market value of the bike.
Costello sues Hale for the return of the bike. Who wins?
Why isn’t Case 3 controlled by the first two cases?
Don’t the first two cases stand for the proposition that a person who dishonestly acquires possession of another’s property does not acquire ownership rights in the property?
What is different?
One possibility is that the Court may say that the base point fact of the defendant’s innocence is important and is different in case 3 from cases 1 and 2.
That is, one could claim the two cases are distinguishable because in the first two cases, the fight was between the innocent owner and the wrongdoer, the thief or the defrauder, and in the third it is between two innocent persons.
In the present case, the fight is between the innocent owner and the innocent buyer. So, one could allege, that's what make cases 1 and 2 distinguishable and not controlling on case 3.
Then comes Case 4. Similar to Case 1,
Abbott steals Costello’s bike, except that, like Case 3, before Costello can sue for its return, Abbott sells it to Hale. Hale is unaware that it was stolen, and pays Abbott its full market value. Who wins?
(????) Seems wrong, doesn’t it?
 
What is different?
Didn’t Case 3 say that where property is dishonestly acquired, title may nevertheless be transferred to a good faith purchaser for value....one who was unaware of the dishonest acquisition?
So what other distinction can we draw that would explain the outcome in Case 4, as well as the outcome in Case 3?
Well, in Case 1, there was theft (the bike was stolen); in case 2, the property was obtained by fraud (it was obtained through misrepresentation).Those are differences in facts. But are they important differences? And if so, why?
What difference? Both dishonest; both probably criminal.
 
But in the case of theft, Costello never intended to transfer title to Costello; the property was taken without Costello’s knowledge and without Costello’s intent to pass title. That means that no title ever passed, and Abbott acquired No Title.
Or stated differently, he acquired a VOID TITLE.
And he couldn’t pass on to someone else a better title than he himself had.
In the case of fraudulent inducement (cases 2 and 3), Costello did intend and act to transfer title, although the owner was misled by Abbott’s fraudulent inducement.
So, Abbott did acquire title, though it was a VOIDABLE (as opposed to VOID) title;
What does that mean?
That is, Costello could have sued for the return of the bike (or decided not to), but in the meantime Costello transferred some actual legal title to Abbott, even though it was, at Costello's option and action, voidable.
If Costello acted fairly quickly, while Abbott still had the bike, then Costello could “avoid the title” and get back the bike, as in Case 2.
But if, before Costello acted to avoid the title, Abbott sold it to an innocent buyer, who paid full value (a Bona Fide Purchaser), the title that he had transferred to the BFP, and became good title. It no longer could be “avoided.”
 
 
 
Case 5: Same as Cases 3 and 4 -- (Abbott obtained it by fraud), -- except Hale was aware of the circumstances by which Abbott had acquired the property -- that is, Hale was aware that Abbott had committed fraud to acquire the bike. Costello sues Hale for the return of the bike. Who wins?
Why is this different?
Here, the buyer is not a Bona Fide Purchaser for value. He knows that the property was obtained by fraud. So he steps into the shoes of the seller. The seller, Abbott, had only a voidable title, and it does not become a vested title in Hale because he's in the same shoes as Abbott. So, Costello avoided Abbott's, and therefore Hale's, title by the suit for the bike’s return.
The same would be true if Hale had not paid Abbott a reasonable price.... close to market value....for that would put him on notice that something wasn’t Kosher.... there too, he would not be a BFP, and would not acquire good title from Abbott.
SO, TO SUM UP THESE EXAMPLES, WE HAVE TWO ORIGINAL CASES THAT APPEAR TO ESTABLISH A RULE, BUT IN SUBSEQUENT CASES WE ARE ABLE TO DISTINGUISH THOSE CASES BECAUSE OF DIFFERENCES IN FACTS, OR WE ARE ABLE TO FOLLOW AND APPLY THOSE CASES BECAUSE THE FACTS ARE SUBSTANTIALLY SIMILAR.
ANOTHER EXAMPLE
In Torts, we will be analyzing the Tort of Battery. As we will then see, it is committed if one intentionally causes harmful or offensive touching to a person, or some extension of that person’s person.
Assume, in some of the precedential cases, the defendant knocked a plate or some other object out of someone’s hands or grabbed the collar of his jacket or some other article of clothing plaintiff was wearing, and in each case the court ruled that there was a battery.
On the other hand, in other cases, the defendant smashed the headlight of the car or otherwise struck the outside of the vehicle in which the plaintiff was sitting, and each court ruled that there was no battery to plaintiff.
In our problem case, the defendant slapped the rump of a horse on which the plaintiff was sitting, causing the horse to run, but not throw the rider.
To which case or cases is this situation analogous?
 
Is the horse’s rump more like the plate in one’s hand or the collar of one’s coat?
Can the plaintiff reasonably feel that her/his personal dignity has been invaded by defendant violently striking the horse’s rump? Or is the situation more like the car in which one is sitting, where plaintiff is not close enough to the contact to reasonably feel like his/her dignity has been invaded?
SummarySo, reasoning by analogy is very important in the law....but it also is very uncertain. You must first determine the base point....the allegedly binding rule from the precedent(s). Then you identify the factual similarities and the factual differences between the precedent(s) and the present case. Then you judge whether the similarities are more important, or whether the differences are more important, and thus either follow or distinguish the precedent. However, judging which facts are more important is not easy, and subject to much disagreement.
INDUCTIVE LEGAL REASONING
This is reasoning from the specific to the general
– i.e., using information about a series of individual cases to reach a conclusion about the likelihood of the truth of a general proposition
In Case no. 1, the defendant knocked a plate out of the hands of plaintiff, and the court found there was a battery, an offensive touching of something logically an extension of plaintiff’s person.
In Case no.2, the defendant grabbed the collar of plaintiff’s suit, and the court found there was a battery of the plaintiff.
In these cases, the courts emphasized that battery is a dignitary tort, and the plaintiff could validly feel that his/her dignity was being invaded.
In Case no. 3, the defendant violently smashed the headlight of a car in which plaintiff was sitting, but the court said there was no battery of plaintiff, because the plaintiff’s person or a logical extension of his person was not offensively touched.
In Case no. 4, the court found that throwing a rock at a bus in which plaintiff was sitting might have been some other tort, but it was not a battery to plaintiff, who was not touched or harmed in any way.
In deciding whether there is a battery when defendant angrily slaps the rump of a horse on which plaintiff is sitting, one would synthesize the four cases above, by inductive reasoning.
How? Generalizing a proposition that would fit all the cases.
One could conclude that the general proposition is that “a battery occurs if the defendant intentionally causes offensive or harmful contact with plaintiff’s person, or some logical extension of that person, and that a logical extension of a person would be something in close contact with the person. or something so closely associated with the person, that he/she could reasonably feel that, by striking that object, the defendant was invading the plaintiff’s personal dignity. “
(As an aside, that language probably will not be found anywhere, in any of the cases. This is another example of the importance of analyzing and articulating the results and holdings of cases in your own words)
Having established a general proposition of law from the synthesis of a series of individual cases, no one of which probably states the proposition as such, we then can apply the proposition to our facts by deductive reasoning.
DEDUCTIVE LEGAL REASONING
All of us use this form. Its essence is the syllogism. The classic example is:
All men are mortal.Socrates is a man.
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Socrates is mortal.
 
There is a Major Premise, a rule....here “all men are mortal.”
There is a Minor Premise, a fact...here, “Soc is a man.”
And if applied validly, there is a valid Conclusion, “Soc is mortal.”
If the major premise is true, and if the minor premise is true, the conclusion must be true,
so long as the syllogism is applied validly.
Here, there would be an invalid application if one concluded “Therefore, Socrates is all men.”
A syllogism can also produce an invalid conclusion when the meaning of words is changed from the major premise to the minor premise, as:
Major Premise: A foot has five toes.Minor Premise: The distance is one foot.
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Conclusion: The distance is five toes.
 
It also can produce an invalid conclusion if either the major premise or the minor premise is wrong.
Major Premise: A foot has 39 inches.Minor Premise: The measurement of the door is one foot
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Conclusion: The measurement of the door is 39 inches.--
For Legal Reasoning, one must first establish the Rule. This may be from the constitution, a statute, an administrative regulation, treaty, executive order, or from the common law.
1. Carrying a Concealed Pistol is a FelonyJohn was carrying a concealed pistol
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John committed a felony
 
2. Torturing a prisoner on the rack would be Cruel and Unusual Punishment
The Guards tortured the prisoner on the rack
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The Guards inflicted Cruel and Unusual punishment on the prisoner.
3. A law enforcement agent’s use of an electronic listening device to overhear a suspect’s private conversations constitutes an unreasonable search and seizure
The law enforcement agent used an electronic listening device to hear X’s private conversations
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The law enforcement agent committed an unreasonable search and seizure.
The syllogism can also be used to prove that something is not true.
If the major premise (the rule) requires something to be true or something to occur, and the minor premise (the facts) shows that the required conduct is not true or did not occur, the conclusion must be that the major premise was not fulfilled.
1. To be enforceable, a contract for the sale of goods for a price of $500 or more must be in writing.
The oral contract for the sale of these goods was not for $500 or more.
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The contract in this case was not enforceable.
Of course, the facts may be subject to dispute. But if the rule is established, such as in a statute, then the parties know what facts have to be established in order to make the rule applicable. In the above example, the fight would be on whether the contract was for $500 or more, or not. Often, one develops the rule...the major premise...by inductive reasoning, and then applies it to the facts by deductive reasoning.
In our battery example, by analyzing and synthesizing a number of cases, one concluded that the basic rule is
Major: The defendant commits a battery by intentionally causing harmful or offensive contact to something in close physical contact to the plaintiff or closely enough associated with plaintiff that plaintiff could validly feel that her dignity was being invaded.
Minor:The horse on which plaintiff was sitting was in close physical contact to plaintiff’s person, so that the plaintiff could validly feel that defendant striking the horse’s rump was an invasion of plaintiff’s personal dignity
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CONCLUSION:The defendant committed a battery by causing offensive contact to the horse on which plaintiff was sitting.
 
Or RULE:The owner of property which has been stolen from him is entitled to recover the property from a bona fide purchaser from the thief, but may not recover the property from a bona fide purchaser from a person who obtained property from the owner by fraudulent inducement
FACTS:Defendant Hale was a bona fide purchaser from Abbott, who obtained the property from the owner, Costello, by means of fraudulent inducement
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LEGAL CONCLUSION
Costello, the owner, cannot recover the property from Hale.
IRAC is nothing more than a synonym for the syllogism. The following example is a bit over-simplified, and you would be expected to expand on your discussion of each of these parts a bit on a real exam or in a real memo, but it illustrates the idea.
The I stands for “Issue”. In a memo, it may be the Question(s) Presented; On an exam, you would begin by saying “the first issue is whether, by striking the horse on which plaintiff was sitting, the defendant committed a battery to the plaintiff.”
Next, R stands for Rule(s). (Or, in the syllogism, the Major Premise).Here, it would be something like:“A defendant commits a battery by intentionally causing a harmful or offensive contact to the plaintiff’s person, or to some object or thing in close contact with plaintiff’s person or closely enough associated with plaintiff’s person that plaintiff can reasonably feel that his/her dignity is invaded by the contact.” {This could be done on an exam or in a memo in several words or after several paragraphs of analysis and discussion}
A then stands for Application...i.e., application to the Facts. “Here, the plaintiff was sitting on the horse, and it was (or was not) so closely in contact with plaintiff’s person that plaintiff could reasonably feel that his/her dignity was being invaded.” {and some elaboration on why you think it was or was not closely enough associated}.
C then is the Conclusion. “Therefore, the defendant did (or did not) commit a battery when he offensively struck the rump of the horse on which the plaintiff was sitting.”
So, let’s go through another example:
Case 1: D calls his daughter to him, gives her a key to a safety deposit box, and orally says “I give you all the contents of the box. I want you to have all of my money.” The court discusses the law of gifts, defines the three requirements
(1) donative intent, which it defines as the intent to give the property away, as opposed to an intent to loan it to another, or to give it as security for a debt, or some other kind of transaction. Here, the donative intent was established by the donor’s unambiguous words, “I give you.... I want you to have.”
(2) delivery of the subject of the gift. The court explains that the normal rules requires that the subject of the gift be physically handed over, a so-called “manual tradition” of the property, to the donee. However, it goes on, in some cases, where the subject of the gift is too large or bulky, or is located far away, the delivery may be constructive, by the donor releasing to the donee the sole means of obtaining the gift, such as by a deed, or by a key to the safety deposit box. The donor, however, must not retain any control over the subject, such as by retaining a second key. Here, the court found that the delivery requirement was met by giving the only key to the safety deposit box to the donee.
(3) Acceptance of the gift by the donee. Normally, this would be implied if the gift is beneficial, and there are no words by the donee rejecting the gift. Here, the court found no words rejecting the gift, and found that acceptance therefore was to be presumed.
In case 1, the court found the gift effective.
Case 2, the donor said to a friend, “I’m not feeling well. In case something bad happens to me, I want you to go down and clean out my safety deposit box, so the government doesn’t tax it til there’s nothing left. Then make sure the right people get it.” He gave the friend the lock box key. When he recovered, and asked for it back, the friend refused to give it to him, claiming he was a donee of a gift of the contents. The court found there was no gift, because there was no donative intent.
Case 3. The alleged donor gave the alleged donee a key to a safe, located in his office. However, he retained a copy of the key himself. Moreover, he could have opened the safe and given the contents directly to the alleged donee. The court found that there was not a valid gift, because of insufficient delivery.
Cases 4, 5 and 6. Etc. Etc.
 
Problem Case: Sick man calls his nephew in. Says he doesn’t think he’s going to live. “You were always my favorite. I want you to have some money. I have it buried in back of my farmhouse down near Carbondale. Here’s a map on how to find it. It’s in a sack buried next to an old Oak tree.” The nephew thanks him, although he tells the man that he’s acting prematurely, since the nephew is certain the illness is not life threatening, and that the uncle will soon recover.
Focusing on one of the issues, delivery: What would be the rule to be applied?
By inductive reasoning from the cases, one could generalize that 1. Delivery is required to effectuate a gift. 2. Ordinarily, delivery requires the actual handing over of the subject of the gift. 3. But an exception exists, when the subject of the gift is too large or bulky, in which case giving the recipient the means of obtaining the gift is sufficient, so long as the donor gives up the means him/herself. 4. The exception also exists where the subject of the gift is located far away, and the donor gives the donee the exclusive means of taking possession of the subject of the gift.
 
 
So, what are the issues?
Did one of the exceptions apply? Did the donor give the donee the means to obtain possession of the subject of the gift?Did he surrender possession or the means of taking possession himself?
Each of these would lead to a syllogistic analysis.
To be valid, the subject of the gift must be physically delivered by the alleged donor to the donee.
Uncle did not physically deliver the subject of the gift to Nephew
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Unless one of the exceptions applies, the gift was not valid
One exception is that delivery is valid if the subject of the gift is too bulky or heavy to be physically delivered.
There is no showing that the subject of this alleged gift was too bulky or heavy for actual delivery
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This exception does not apply
MAJOR:Another exception is that delivery is valid if the subject of the gift is located at a great distance so that it cannot be physically handed over, and the alleged donor gives to the alleged donee the exclusive means of obtaining control over the subject, such as by the only key to a safety box
MINOR:The donor gave a map showing the location of the subject of the gift, but did not relinquish complete control since he retained the knowledge of the location
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CONCLUSION:
The delivery was not valid.
or
 
 
MAJOR:Another exception is that delivery is valid if the subject of the gift is located at a great distance so that it cannot be physically handed over, and the alleged donor gives to the alleged donee the exclusive means of obtaining control over the subject, such as by the only key to a safety box
MINOR:The donor gave the donee the means by which he could take possession of the subject matter of the gift, a map showing where it was buried, and did not retain a copy of the map, thus relinquishing any control over the subject of the gift.
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CONCLUSION:
The delivery was effective.
Adapted from: http://www.kentlaw.edu/classes/rbrill/TortsF2004/CoursePages/courseinfo/reason.htm