The Distinction between Binding and Persuasive Precedent - Essay Example

PART LAW a. Distinction between binding and persuasive precedent The doctrine of precedent or of stare decisis is an important concept in common law. “Stare decisis” is the abbreviation of the Latin phrase “stare decisis et non quieta movere” which loosely means “to stand by what has been decided and not to unsettle what is established.” Under this doctrine, the decision of a higher court on a previous case involving essentially similar circumstances as one currently being decided should be controlling in the subsequent case. There are two kinds of judicial precedents – that which is binding, and that which is merely persuasive. A binding precedent adheres closely to the precept of stare decisis. It is “based on the premise that the function of judges is not to create law, but to find law in conformity with existing legal rules.” Under this doctrine, the judge is legally obliged to base his own rulings on previously decided cases, applying the principles of law determined therein. “This coercive character of the doctrine of precedent is a feature peculiar to the English legal tradition.” (Antoine 2008) Binding precedents are only supposed to hold for cases directly in point, which means that: “(1) the question resolved in the precedent case is the same as the question to be resolved in the pending case; (2) resolution of that question was necessary to disposition of the precedent case; (3) the significant facts of the precedent case are also present in the pending case; (4) no additional facts appear in the pending case that might be treated as significant.” (Rombauer 1978) On the other hand, persuasive precedents are those legal principles which, while controlling in previous cases, are merely referred to for guidance in the pending case. The judge may refer to these earlier decisions, but will not consider himself bound to abide strictly by them. Examples of such persuasive precedents are decisions of a court of another jurisdiction, and decisions of a lower-level court. Another consideration would be the date the precedent case was decided, since generally, cases which are more recent would be more authoritative as a basis for new decisions. Also, if the case were promulgated by a judge with more prominent reputation, the greater the degree of persuasiveness of that decision. (Gall, 1983) An important basis as to whether a precedent is binding or persuasive is that portion of the judgment from which the legal principle is drawn. Judgments are comprised of the ratio decidendi and the obiter dicta. The ratio decidendi is that part of the judgment where the judge states the material facts of the case and sets down his legal reasons for arriving at his or her decision. If the court which ruled on the precedent case is higher than the court hearing the pending case, then such precedent is binding upon the lower court. On the other hand, the principle may be embodied in the obiter dictum, which comprises the opinions and observations of the judge. The obiter dicta are persuasive in nature; the judge in the pending case may take them under consideration, but need not strictly abide by them. b. The judicial technique of distinguishing cases. It is possible that a case up for decision appears to have a precedent, but the judge determines that the premises governing such precedent are not entirely relevant in the pending case, necessitating a change in the precedent. In such instances, the judge may resort to four possible methods to alter the precedent. These are by: (1) overruling, (2) reversing, (3) distinguishing, and (d) disapproving. In overruling, the higher court decides that a precedent established by a lower court – assuming that such court is in the same hierarchy and the facts for both cases are similar – is no longer appropriate and therefore overturns it. Reversing refers to the appeals procedure, where an appellate judge reviews the previous decision of the lower court and decides to change such decision. In disapproving, the judge may express an unfavourable opinion of the earlier judgment; however, if such earlier judgment were penned by a higher court, the lower court would have to abide by it since it would be a binding precedent. In distinguishing, the judge has determined that the relevant facts of a pending case are not sufficiently similar to that of the precedent as to warrant an identical judgment. The judge thus points out the differences in facts between the two cases, and applies the proper leagel principle for the succeeding case. Williams (1973) defines two kinds of “distinguishing” – restrictive and non-restrictive. In non-restrictive distinguishing, the court accepts the ratio decidendi of the precedent case, but is of the opinion that the case before it is factually distinguishable from the precedent. No conflict exists in deciding the pending case otherwise, as essentially they have been distinguished from each other. Non-restrictive distinguishing is exemplified in the case of the Supreme Court of Canada’s decision in Town of the Pas v. Porky Packers Ltd. (1976), 65 D.L.R. 1 (S.C.C.). The Court noted that the precedent set in Hedley Byrne Co. Ltd. v. Heller [1963] 2 All E.R. 575, required the plaintiff in a misrepresentation claim to show that he relied on the skill and judgment of the party from whom he had received incorrect information. The Porky Packers case was different, however, since the plaintiff’s representative had greater expertise and thus was more knowledgeable on zoning matters (on which the issue was based) than the officials themselves. The circumstances showed that no such reliance (on the skill and judgment of the defendant) was present, and the plaintiff’s claim was dismissed. The material fact that there was absence of reliance on the part of the plaintiff became the distinguishing element for Hedley Byrne (Perell 1987). Restrictive distinguishing, on the other hand, essentially disregards the earlier case by regarding a fact, which existed in the precedent case and which was considered immaterial in the earlier decision, as in truth material and taken into account in deciding the later case. As an example of restrictive distinguishing, note that in Peabody Fund v. Sir Lindsay Parkinson Ltd [1984] 2 W.L.R. 953 (H.L.), the court restricted the application of Anns v. Merton London Borough [1978] A.C. 728 (H.L.) for the proposition that a municipality may be liable for negligence in failing to properly inspect building plans. In the Peabody fund case, the Court made more specific the scope of the municipality’s responsibility by defining the duty of the municipality as pertaining to the owners and occupiers threatened with injury to health or safety. As a result, the Court disallowed a claim by the developer of a housing project for damages he had suffered due to the fact that the drainage system installed by the municipality failed to comply with the approved design. The element of restrictive distinguishing is the introduction of the requirement of the possibility of injury to safety or health (Perell 1987). The implementation of the doctrine of stare decisis has spawned several issues which have found advocates on either side. The strict observance of the doctrine is generally regarded as the traditional view, and is anchored on the proposition that the law requires stability and certainty, that for fairness to exist, two different persons similarly situated should be regarded the same way under the law. However, the modern view is that while stare decisis is the general rule, there must be sufficient leeway for judges to exercise a modicum of discretion where the facts of the case so call for it, in order that justice may be served more equitably. The law does not operate in a vacuum, and the application of the law must be dynamic to develop in step with the changing social milieu from which it draws relevance. The Right Hon. Lord Denning, the former Master of the Rolls has argued: “If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice. (Denning 1979)” In conclusion, the law requires stability, and thus as a general rule and wherever good sense and conscience permit it, the judge should not make new law but state the law that has held true over time. However, where clearly the existing law has become stale and inapplicable, the judge should not be fearful of making new law, one that after due contemplation presents a better proposition given the facts under consideration, and by which justice may be better served. PART 2: MANAGEMENT 1. How modern theories of leadership challenge the traditional theories of leadership. Leadership defined. Leadership has been defined as “a process by which a person influences others to accomplish an objective and directs the organization in a way that makes it more cohesive and coherent.” Leadership is a phenomenon that is as old as human existence. Van Vugt (2006) propounded a theory that leadership is intricately related with human evolutionary history. For millions of years, people lived and worked together in small groups to ensure their survival, not unlike the modern-day primates. Where groups form, leaders naturally emerge in order to deal with the pressures of group life. Leadership has thus been “embedded” in our genes such that the human brain has been hardwired to possess a leadership “prototype” or a fixed notion of the characteristics a leader should exhibit. (Hughes, 2006) Professor van Vugt observed that since ancient man lived together in small groups with close personal contacts, today we look for compassion and an intimate personal touch in a leader, who knows us personally and takes an active interest in our lives. This accounts for the fact that charismatic leaders like Gandhi or Jesus have been successful leaders as well. Conversely, leaders who try to dominate followers are especially disliked. Historically, selfish and overbearing leaders were ridiculed, ignored, or sometimes assassinated, in the same was as we ridicule or hate similar political leaders today (Hughs 2006). Traditional versus modern leadership theories (Don Clark) There are generally three traditional theories by which leadership can be understood. These are the trait approach, the behavioral approach and the situational approach. On the other hand, contemporary theories on leadership include the charismatic, transformational, and post-heroic leadership. The trait approach is the oldest theory through which to understand leadership. Through this method, focus is brought upon the great leaders in order to determine the personal characteristic traits that they share. Roughly between 1904 to 1948, a slew of trait studies were conducted towards this end. Interest waned in the second half of the century, however, when it became apparent that no personal traits could ensure success. It was noted, though, that several traits were considered useful – such as drive, leadership motivation, integrity, self-confidence, and skill and competence. The behavioral approach took the view that commonalities in what good leaders do ensures success. Out of these three general leadership behaviors received much attention: task performance, group maintenance, and employee participation in decision-making, which distinguished between autocratic and democratic leadership. Since a leader’s behavior influences people’s attitudes, it is a natural assumption that it would have a direct bearing on their performance. The situational approach plays down the concept of universally important traits and behavior, and instead focuses on a leader’s approach to a particular situation in determining what to do. This approach espouses the theory that effective leader behavior intuitively responds to the demands of the specific situation, and general rules do not apply. One of the earliest studies to deal on situational leadership was that conducted by Tannenbaum and Schmidt in 1958. The study centered on three major factors in situational leadership: forces in the manager (his personal values, inclinations and feelings), forces in the subordinate, and forces in the situation (organization values, effectivity of the unit, the problem itself). Other popular situational leadership models are the Vroom model for leadership and the path-goal theory developed by Robert House. The latter defines four important leadership behaviors: directive leadership (task-oriented), supportive leadership(group-oriented), participative leadership (decision-oriented) and achievement-oriented (motivational) leadership. Of these theories, the path-goal leadership approach is generally accepted as the most useful theory. Other than the traditional or classic approaches, there are emerging contemporary perspectives on leadership. Charismatic leaders are described as those who are dominant and exceptionally self-confident, and possessed of a strong conviction in the moral righteousness of their beliefs (Potts and Behr 1987). Such leaders possess the illusive characteristic called charisma which evades definition, and yet is capable of inspire in their followers trust, confidence, acceptance, obedience, involvement, affection, admiration, and higher performance (Waldman and Yammarino. 1999). Noted charismatic leaders are John F. Kennedy, Martin Luther King, and Walt Disney. Transformational leaders are those who inspire people and motivate them to go beyond their personal interests for the sake of the larger community, in effect generating excitement and injecting life back into faltering organizations. One noted transformational leader in the United Kingdom is Richard Branson of Virgin Group, who built a global business empire and is emulated by young people as one who has built a successful business career without compromising personal ethics and a balanced life (Yammarino et al, 2001). Transformational leaders are viewed in contrast with transactional leaders, who see management in terms of a series of transactions wherein they employ their legitimate, reward, and coercive powers to command and reward their subordinates in return for their services. Transactional leaders, in direct contrast to transformational leaders, are dispassionate, do not excite, transform or empower, and do not inspire their people to focus on the group or organization (Bateman and Snell, 2005). Finally, post-heroic leaders inspire the common view that they are heroes. “Phenomenally talented, they step forward in difficult times and save the day. But in these complex times, it is foolhardy to assume that a great tope executive can solve all problems by himself or herself.” (Bateman et al.) Movie superstar now California governor Arnold Schwarzenegger is one such leader. The key roles that characterize post-heroic leaders in this century may be summarized as follows: 1. Using vision to motivate and inspire. 2. Empowering employees at all levels. 3. Accumulating and sharing internal knowledge. 4. Challenging the status quo and enabling creativity. (Bateman et al.) Synthesis: The traditional approach to management tends to view the manager’s role and a task-oriented, transaction-based, undertaking where the efficient management of resources – manpower, money, machinery – is prioritized in order to maximize output. The traditional approach tends towards centralized decision-making and control, and only recently has moved into participation and decentralization. The stress, however, remained on the output. The modern leadership approach is to focus on people. This tends to jeopardize the time-honored concepts of power and control; in truth, it is a substitution of inspiration instead of coercion, and motivation instead of control. The development of social norms in the area of human rights and empowerment, as well as the shrinking of the globe in terms of technological advances in communication and transportation, have liberalized human thought democratized our social institutions. Modern management styles must likewise evolve, consistent with Van Vugt’s observation. “Thus, what is now required of leaders is less the efficient management of resources, and more the effective unleashing of intellectual capital and human resources. In other words, you should capitalize on all the brains and talent in your organization.” (Bateman and Snell, 2005). b. How managers with different leadership styles motivate their teams In seeking to understand the different leadership styles and the way leaders who employ them motivate their teams, it is most helpful to consult what is widely accepted as the “Managerial Grid” as developed by Blake and Mouton (1985). The grid resolved the major elements of leadership styles into two axes: 1. "Concern for people" is plotted using the vertical axis; and 2. "Concern for task" is along the horizontal axis. While there are many theories on leadership styles, the Blake and Mouton concept, being reduceable to two dimensions, provides a simplified approach that many find attractive in its usefulness. The dimensions may be graphically presented as a grid, as follows: Majority of us fall somewhere near the center of the two axes. In examining the extreme regions, that is, people who score on the far end of the scales, four notable types of leaders emerge. They are Authoritarian (High on task, low on people) Team Leader (High on task, high on people) Country Club (Low on task, high on people) Impoverished (Low on task, low on people). Authoritarian Leaders are high on task-centeredness and rate low on human relationship. These are people who are highly task-oriented and usually are demanding of their workers (autocratic). Cooperation or collaboration are seldom given importance. These types of leaders hew closely to schedules and strict procedure; they do not tolerate any perceived resistance or dissent from their followers even if such dissent shows an interest to clarify or debate an issue; they concentrate on finding the blame when things go wrong rather than in looking for the cause and initiating preventive measures; and they are intolerant of creativity if such creativity causes a deviation from the set plans, thus the followers are discouraged from growing and developing. These types of leaders motivate their people with the traditional “stick” approach – that is, punishing perceived diversion from the set plans. Team Leaders are highly task-oriented but likewise give high importance to relationship. They lead by positive example and seek to develop “esprit-de-corps” or team spirit. They aim to foster an environment wherein each member of the team can develop to their maximum potential, both in their organizational functions and their personal lives. They tend to find harmony between team objectives and their members’ personal goals, so that the team and the individuals find fulfillment in their tasks. The individuals are thus motivated to act for the team because they see it as acting in their best interests as well. Such team leaders usually form and lead some of the most productive organizations. Country Club Leaders are low in task-orientation and place high importance on relationships. Such persons make usually exploit the reward power (the “carrot” approach” in order to command discipline and motivate the team to accomplish set goals. Such leaders are almost unable to impose punishment and thus are unable to employ their coercive and legitimate powers. They are afraid that using such powers will endanger their relationship with the team and how the team members regard them. Impoverished Leaders rate low both in task-orientation and in group relationship. Such people are known as those who employ the “delegate and disappear” management style. They are neither committed to the accomplishment of the task or the maintenance of group morale and behavior. They essentially neglect their team members, leaving them to do as they want and detach themselves from team activity. Essentially, due to the power vacuum – since the leader chooses not to perform the essentials of the leadership function – the team tends to degenerate due to internal power struggles. This type of leader does not even make an effort at motivating their team members, because they feel no compulsion to attain the goals of the team. It is a given that the most effective leader usually is the one that rates high in both task performance and relationship maintenance – the Team Leader. However, Blake and Mouton caution against lightly dismissing the other three leadership styles. There are certain situations which might call for the use of one of them, given the type of group members and nature and circumstances of the task to be performed. For example, the use of the Impoverished Leader allows a team to gain self-reliance, the Authoritarian Leader instills a sense of discipline among unmotivated workers, and Country Club Leaders work best for highly self-motivated intellectuals and experts who would resent the slightest coercion. A careful study of the various styles and the implications of each, an astute leader would know how and when he may employ each (or combinations thereof) to attain the desired response from his team. References Part 1 Antoine R., (2008) Commonwealth Caribbean Law and Legal Systems, Google Books Gall G. (1993), The Canadian Legal System, 2nd ed., Carswell Legal Publications, Toronto Perell P. 1987, Stare Decisis and Techniques of Legal Reasoning and Legal Argument, Weir & Foulds, as found in http://legalresearch.org/docs/perell.html Rombauer M. (1978), Legal Problem Solving: Analysis, Research and Writing, 3rd ed,, West Publishing Co. The Rt. Hon. Lord Denning, 1979, The Discipline of the Law Butterworths, London. Williams G. (1973), Learning the Law, 9th ed. Carswell,Toronto. Part 2 Bass, Bernard (1989). Stogdills Handbook of Leadership: A Survey of Theory and Research. New York: Free Press. Bass, Bernard (1990). From transactional to transformational leadership: learning to share the vision. Organizational Dynamics, Vol. 18, Issue 3, Winter, 1990, 19-31. Bateman, T. and Snell, S. (2005) Management: The New Competitive Landscape, McGraw-Hill, Boston. Blake, Robert R. and Mouton, Janse S. (1985). The Managerial Grid III: The Key to Leadership Excellence. Houston: Gulf Publishing Co. House, R. (1971) “A Path Goal Theory of Leader Effectiveness.” Administrative Science Quarterly. Hughes G. (2006), “New theory about leadership has important lessons for the modern world” as seen in http://www.innovations-report.com/html/reports/social_sciences/report-66273.html Potts M. and Behr P. (1987), The Leading Edge, MacGraw Hill, New York. Tannenbaum A. and Schmidt W. (1958), “How to Choose a Leadership Pattern,” Harvard Business Review (March –April) Vroom V. (2000), “Leadership and the Decision-Making Process,” Organizational Dynamics. Waldman D.A. and Yammarino F.J. (1999), ”CEO Charismatic Leadership: Levels-of-Management and Levels-of-Analysis Effects,” Academy of Management Review. Yammarino F.J., Dansereau F. and Kennedy C.J. (2001), “A multiple-level multidimensional approach to leadership: Viewing leadership through an elephant’s eye,” Organizational Dynamics, Winter. Read More