The Tools And Techniques Of Judicial Creativity And Precedent
• • / • / Stare decisis and techniques of legal reasoning and legal argument Copyright ©1987 Paul M. Perell Originally published in (1987) 2:2,3 Legal Research Update 11 and republished with permission. Introduction It gives away no secret to observe that lawyers have their own unique discipline and approach to the resolution of legal problems.
Not surprisingly, there are laws about determining the law. One of the most important of these laws is the law of precedent or stare decisis. That doctrine and its significance in practical terms are the subject matters of this paper. This paper is also about how a lawyer in everyday practice answers a legal question and how that lawyer evaluates and formulates legal arguments. The paper is only to a very limited extent concerned about the practical problems of how to find or look up the law; rather, the concern is how a lawyer should deal with the authorities that he or she finds. Because different legal systems have different approaches to the proper way of deciding a legal point, the perspective will be Canadian and primarily that of Ontario. The doctrine of stare decisis What is the doctrine of precedent or of stare decisis?
The Tools And Techniques Of Judicial Creativity And Precedent
Professor Gall described it in the following terms: The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. “Stare decisis” literally translates as “to stand by decided matters”. The phrase “stare decisis” is itself an abbreviation of the Latin phrase “stare decisis et non quieta movere” which translates as “to stand by decisions and not to disturb settled matters”.