Dear Kirtirani,

An integral part of legal reasoning using precedents is the practice of distinguishing. Distinguishing involves a precedent not being followed even though the facts of the later case fall within the scope of the ratio of the earlier case. As the later case falls within the scope of the earlier ratio (i.e., within the scope of the rule), one might expect that the decision in the later case must be the same (unless the court has the power to overrule the earlier case and decides to do so). In legal reasoning using precedents, however, the later court is free not to follow the earlier case by pointing to some difference in the facts between the two cases, even though those facts do not feature in the ratio of the earlier case.

Take the trust example: in a later case the recipient of trust property may not have paid for the property, but may have relied on the receipt in entering into another arrangement (e.g. in using the property as security for a loan). The later court may hold that the recipient is entitled to retain the property and justify its decision by ruling that where (i) the defendant has received trust property (ii) in breach of trust and (iii) has not paid for the property, but has (vii) relied upon the receipt to disadvantageously alter her position, then the defendant is entitled to retain the property. (This result would still leave the beneficiary with a claim against the trustee for the value of the property.)

The effect of distinguishing, then, is that the later court is free not to follow a precedent that, prima facie, applies to it, by making a ruling which is narrower than that made in the precedent case. The only formal constraints on the later court are that: (1) in formulating the ratio of the later case, the factors in the ratio of the earlier case (i.e., (i)–(iii)) must be retained, and (2) the ruling in the later case must be such that it would still support the result reached in the precedent case. In short, the ruling in the second case must not be inconsistent with the result in the precedent case, but the court is otherwise free to make a ruling narrower than that in the precedent. Hence the more accurate statements of the doctrine of precedent are to the effect that a later court must either follow or distinguish a binding precedent—a disjunctive obligation.

At a formal level the practice of distinguishing can be reconciled with the view that rationes are rules by arguing that later courts have the power to modify the rule in the earlier case. An analogy can be drawn to the power to overrule earlier decisions: just as judges can overrule earlier cases, they can also modify earlier law, thereby paralleling the power of legislators to either repeal or amend the law. The analogy, however, is very imperfect. There are two difficulties: (a) Common Lawyers do not conceptualise overruling and distinguishing in this parallel way, and (b) the rationale for a power with this particular scope is unclear.

On the first point, Common Lawyers ordinarily think of precedents as constituting the law up and until they are overruled. Once overruled the later decision is (normally) given retroactive effect, so the law is changed for the past as well as the future. But when a case is distinguished it is not often thought that the law was one thing until the later decision of a court, and now another thing. The law will be regarded prior to the later decision as already subject to various distinctions not mentioned by the earlier court. Indeed part of the skill of a good common lawyer is grasping the law as not stated by the earlier court: learning that cases are ‘distinguishable’ is a staple part of common law education, and no common lawyer would be competent who did not appreciate that the law was not to be identified simply with the ratio of an earlier decision. Common lawyers do not, then, conceptualise distinguishing along lines analogous to overruling.

On the second point, one of the peculiarities of distinguishing is that it cuts across the normal justifications for having rules, namely to have a class of cases treated in a certain way despite individual variation between them, with attendant gains in predictability and transparency in the decision-making process. Instead, the later court is free to avoid the result indicated by the earlier ratio so long as it can find some difference in facts between the two cases that narrows the earlier ratio while still supporting the result in the earlier case. What is more, this power is not merely given to courts of the same level of authority as the one laying down the precedent (as is the case with overruling), but is given to every court lower in the judicial hierarchy. So the Court of Appeal in England cannot overrule a decision of the House of Lords (nor even its own decisions ordinarily), but it is free to distinguish a decision of the House of Lords even when the case before it falls within the ratio of the House of Lords decision. So on the rule-making view of precedent lower courts have the power to narrow the rules laid down by higher courts, just so long as the narrower rule would still support the result reached in the earlier case. It is unclear why lower courts should be given a power to narrow rulings of higher courts in this particularly circumscribed manner.

Two ways in which distinguishing can be made less idiosyncratic are these: (a) to argue that the later court is restricted to making a modification which the earlier court would have made if confronted with the current facts (cf. Raz 1979, 187–8), i.e., that distinguishing is a form of reinterpretation of the original ratio; or (b) to argue that there is a presumption against distinguishing (Schauer 1989, 469–71; 1991, 174–87). Each of these approaches echo forms of legal reasoning found in statutory construction. The first, in asking what the earlier court would have done, assimilates the task of distinguishing to that of determining the law-maker's intent behind their ruling. This is parallel to the practice of interpreting statutes in terms of legislative intent. The alternative approach of there being a presumption against distinguishing parallels the creation of exceptions to statutory rules

The problem with these two suggestions is that the practice of distinguishing does not conform to either of these constraints: while courts do consider the earlier decision in order to see if the ratio can be reinterpreted, they also introduce distinctions without recourse to the earlier court's views; and they do not typically approach the task of distinguishing as if there is a presumption against it. As a matter of legal practice, then, there are no legal restrictions of this kind on the later court. Distinguishing, then, does not seem to fit easily with the understanding of rationes as creating binding legal rules. (See also Perry 1987, 237–9 on distinguishing.)

A third way which purports to deal with the problem of distinguishing on the rule model is to argue that the ‘rule’ for which the decision is binding is not the precedent court's ruling, but something narrower—the ‘material facts’ that were ‘necessary’ for the result of the case. (See Goodhart 1930, 1959; and see also Burton 1995, 25–58, 60–5 on ‘case-specific facts’ and Eisenberg 1988, 51–4 on ‘minimalist’ and ‘result-centred’ techniques.) This approach makes use of the fact that decisions do not provide canonical formulations of the ratio to argue that the ratio is not to be identified with the court's stated ruling on the issue. The effect of such an approach is to narrow what is regarded as binding in the case to those facts which were crucial to the actual outcome, rather than the stated ruling applied to those facts. The difficulties with this approach are three-fold:

(1) it goes against general legal practice, which usually does identify the ratio with the ruling made by the precedent court (see Simpson 1961, 168–9; MacCormick 1978, 82–3, 1987, 157–8; Raz 1979, 184; Eisenberg 1988, 51–61)

(2) if the precedent court's own characterisation of its ruling is abandoned, there is no coherent way to settle on the ‘material facts’ (Stone 1964, 267–80, 1985, 123–9). Take the case of the recipient of trust property transferred in breach of trust. A key aspect of the facts is that the recipient did not pay for the property. But why is this ‘material’? If the court's own reasoning is put to one side, is it because no consideration was given (so had a token been provided that would have been sufficient); or that inadequate consideration was provided (so more than a token would be necessary); or that a reasonable price was not paid; or that the price was not what the beneficiary would have been willing to accept for the transfer; or that the price is not the best which the trustee could have obtained on the open market? All of the preceding descripttions of the facts are true, but which is ‘material’? The requirement for any of them would invalidate the transfer.

(3) Even if there is some way to characterise the ‘material’ facts, it does not eliminate distinguishing. Take later trust case, for example, in which the recipient has paid nothing for the trust property but has acted detrimentally in reliance on the receipt. The recipient is still a ‘volunteer’ who has not transferred anything to the trustee for the property, but there has been reliance upon the receipt. This may well lead a later court to distinguish the earlier case, although the facts are otherwise identical to those in the original case. On the other hand, if the claim is that the precedent case is only binding when both (a) the ‘material facts’ are present, and (b) no other relevant facts are present, then it is no longer a ‘rule-based’ account of precedent—it is simply reasserting the minimal requirement that the decision in the later case must not be inconsistent with the result reached in the precedent case.

To know more about the Precedent and Analogy in Legal Reasoning click the below link....

Link: https://plato.stanford.edu/entries/legal-reas-prec/

Thanx a lot sir...