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Bartosz Broek1

Two Faces of Legal Reasoning:


Rule-Based and Case-Based

1. Introduction

In this chapter I would like to substantiate the thesis that legal reasoning is
never purely rule-based nor case-based, as it always requires a kind of interplay
between abstract rules and concrete legal decisions. In order to do so, I begin by
formulating two thought experiments: one, in which a highly abstract normative
order is imagined and its limitations analysed; and the other, which considers a
normative order consisting of particular cases only and pinpoints its failure to
deliver a solid foundation for legal decisions. I further argue that the problematic
features of purely abstract and purely concrete normative systems detected in both
experiments are also present in, respectively, the civil law and the common law
traditions. I conclude by indicating that there is no functioning legal system without
a constant dialogue between the abstract and the concrete.

2. Two Thought Experiments

Let us begin by carrying out two thought experiments. The goal of the first is
to understand what are the limitations of legal systems which consist solely of
abstract rules. In order to determine those limitations it is reasonable to analyse an
extreme form of such a system. Therefore, we will investigate some logical aspects
of an imaginary legal system which has only one universal rule of conduct. This will
enable us to clearly identify the problems that accompany the utilisation of any

1Department for the Philosophy of Law and Legal Ethics, Jagiellonian University, Krakw; and
Copernicus Center for Interdisciplinary Studies, Krakw.
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normative system which consists of abstract rules only. The second thought
experiment, in turn, will concern a different approach to constructing legal orders.
We will imagine a normative world in which there are no abstract rules, only
particular obligations. In this way, the limitations of the concrete legal thinking will
be exposed.
Let us consider first the following situation. A legal system - LS1 - consists of
only one, highly universal norm, say:

(N1) Good should be done.2

This norm can be formalised in the first-order extension of the standard deontic
logic as:
(1) xO(GOOD(x))

where O is the deontic operator it ought to be the case that, and GOOD is a
predicate which stands for does good. Let us further assume that LS1 is complete,
i.e. it can serve as the basis for answering any legal question. Moreover, let us
agree - for the sake of simplicity - that legal questions concern whether there exists
an obligation of a concrete person to perform some particular action. Thus, a legal
question may be presented as a set {O(ACTION(name)), ~O(ACTION(name))},
where ACTION is a predicate describing some particular action and name is a
proper name of a concrete individual. The problem we face, therefore, is to
determine, on the basis of
(1) xO(GOOD(x))

whether
(2) O(ACTION(name))
or
(2) ~O(ACTION(name))
The only way to do this is to assume that the legal system LS1 establishes an
obligation of an individual in the form O(ACTION(name)) if this obligation is

2This example is taken from Thomas Aquinas view of the natural law. He believes that the highest
norm of this normative order is bonum est faciendum, malum vitandum. Some of the commentators
of Aquinas thought claim that from this general norm all our rights and duties follow deductively. Cf.
G. Kalinowski, Le Problme de la vrit en morale et en droit, E. Vitte 1967.
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derivable from (1), and otherwise establishes no such obligation (i.e.,
~O(ACTION(name)) is true). The problem is that O(ACTION(name)) does not follow
logically from xO(GOOD(x)) alone, unless ACTION(x) is equivalent to GOOD(x).
What we additionally need is what may be called concretisation rules. In the
standard deontic logic the following rule of inference is valid:3
If AB then OA OB
where A and B stand for certain courses of action. Therefore, in order to get (2)
from (1) it is necessary to establish that
(3) x(GOOD(x) ACTION(x))
If doing good involves performing ACTION, then if one ought to do good, one ought
to perform ACTION:
(4) x(O(GOOD(x)) O(ACTION(x)))
from which by universal instantiation it follows that:
(5) x(GOOD(name) ACTION(name))

Since from (1), again by universal instantiation, it follows that


(6) O(GOOD(name))
we may conclude from (5) and (6) by modus ponens that
(7) ACTTION(name)
Moreover, if there was no such deductive passage from (1) to (7), i.e. if there was
no concretisation rule in the form of (3), we would be forced to conclude that
~ACTION(name). This shows that in the case of highly abstract normative system
the key role is played by concretisation rules. The problem is, where do they come
from? What are the bases for formulating them? Let us observe that concretisation
rules such as (3) are non-normative, in the sense that they involve no deontic
operators (although they are formulated with the use of normatively-loaded
concepts such as good). For example, a particular concretisation rule may look as
follows:
(8) x(GOOD(x) PAY_TAX(x))

3Cf. McNamara, Paul, "Deontic Logic", The Stanford Encyclopedia of Philosophy (Winter 2014
Edition), Edward N. Zalta(ed.), URL = <http://plato.stanford.edu/archives/win2014/entries/logic-
deontic/>.
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which says that if someone does good, then she pays taxes. As soon as we
consider this example, it becomes clear that the formulation of the concretisation
rules is not an easy task. It amounts to imagining a deontically perfect world, i.e. a
world in which everyone behaves in the desired way. It is a world in which everyone
pays taxes, does not steal or kill anyone, etc. The problem is that one should rather
speak of a set of deontically perfect worlds, not a unique such world. For example,
in a dentically perfect world the natural environment is protected - but there are
many particular ways in which such a protection may be implemented. Plastic
bottles may be recycled or their production may be banned. Therefore, if doing
good requires protecting the natural environment, both a world in which plastic
bottles are recycled, and a world in which they are not manufactured at all, are
deontically perfect. In this way we get two incompatible concretisation rules:
(9) x(GOOD(x) RECYCLE_PLASTIC_BOTTLES(x))

(9) x(GOOD(x) ~PRODUCE_PLASTIC_BOTTLES(x))


This point may be made also in a different way. In the theory of obligations a
distinction is introduced between individual and group obligations4 . An individual
obligation is a duty of one concrete person, while group obligations are to be
realised by groups of people. Importantly, the category of a group ought may be
further divided into two subsets: obligations that may be fulfilled by the actions of all
the members of the group only (e.g., during the lecture students should be silent)
and those which may be fulfilled by the action of some subgroup of the group under
obligation (e.g., students should prepare the blackboard before the lecture). It is
convenient to refer to the former type as proper group obligations, and to the latter
as improper group obligations. Now, I posit the abstract obligation to do good is an
improper group ought. Various particular good actions may be undertaken by
different individuals yielding the same deontically acceptable outcomes. The
protection of the natural environment may be realised by the manufactures who do
not produce plastic bottles, or by the consumers who utilise them. In other words,
the abstract duty to do good is multiply realisable: there is always more than one
way to find oneself in (one of) the deontically perfect worlds.

4 Cf. J.F. Horty, Agency and Deontic Logic, Oxford University Press, Oxford 2001.
4
The general moral from the above considerations is that a normative system
of purely abstract rules is never self-sufficient: it cannot constitute the sole basis for
arriving at a particular duty of a particular person. This is the case for purely logical
reasons: any system of abstract rules necessarily expresses improper group
obligations and hence may be realised in a number of ways. In order to better grasp
this point let us contrast normative considerations with physics. A physicists goal is
to uncover a unique set of laws which govern the actual world; meanwhile, a lawyer
or a moralist imagine sets of worlds which are deontically perfect. Those worlds
differ from one another, and hence represent different sets of particular obligations
of concrete persons. It follows that - to a certain extent at least - any abstract
normative system must be augmented by particular decisions in particular cases.
The dream of developing a complete system of abstract rules of conduct, similar to
an axiomatic system, can never be fulfilled.
The second thought experiment is the following. Let us assume now that in a
different legal system, LS2, there are no abstract norms. What we have is only a
finite number of particular cases, in which an obligation of a particular agent is
established. In order to capture this, we need to use first order deontic logic:

(Case 1)
SELLS_GOODS(a)
FOREIGNER(a)
RESIDENT(a)
SELLS_ALCOHOL(a)
O(PAY_TAX(a))
(Case 2)
SELLS_GOODS(b)
~FOREIGNER(b)
RESIDENT(b)
SELLS_ALCOHOL(b)
O(PAY_TAX(b))
(Case 3)
~SELLS_GOODS(c)
~FOREIGNER(c)
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RESIDENT(c)
~SELLS_ALCOHOL(c)
~O(PAY_TAX(c))
(Case 4)
SELLS_GOODS(d)
FOREIGNER(d)
~RESIDENT(d)
~SELLS_ALCOHOL(d)
~O(PAY_TAX(d))

Thus, LS2 addresses the obligations of four different persons, a, b, c, and d. The
persons a and b ought to pay tax, while c and d have no such obligation. Moreover,
we know that a sells goods, including alcohol, is a foreigner and a resident in the
jurisdiction governed by LS2; b also sells goods, including alcohol, is not a foreigner
and resides in the LS2 jurisdiction; c does not sell any goods, is not a foreigner and
is a resident, while d sells goods, but not alcohol, is a foreigner and not a resident.
Let us assume now that we have another person, e, and we need to decide
whether e has the obligation to pay tax. We know that e sells goods, but not
alcohol, is a foreigner and a resident:
(Case 5)
SELLS_GOODS(e)
FOREIGNER(e)
RESIDENT(e)
~SELLS_ALCOHOL(e)
In order to make a rational, not a random decision in the matter at hand, we need to
treat e in the similar way as a, b, c, and d. The reasonable way to proceed would be
to discern some pattern in the already decided cases 1-4, or - in other words - to
spell out a universal and abstract rule or rules that govern those cases. The
problem is that there is no way to do it in a uniform way. The decisions in the cases
1-4 are compatible with different (sets of) rules, such as:
(R1) x((SELLS_GOODS(x) RESIDENT(x)) O(PAY_TAX(x)))

(whoever sells goods and is a resident, ought to pay tax).

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(R2) x(SELLS_ALCOHOL(x) O(PAY_TAX(x))
(whoever sells alcohol, ought to pay tax).
(R3) x((SELLS_GOODS(x) xd) O(PAY_TAX(x)))

(whoever sells goods and is not the person d - who apparently enjoys a
personal exemption from paying taxes - ought to pay tax).
This shows that the hidden rules which govern the decisions in LS2 may be
reconstructed in various, incompatible ways; the crucial point is that all the rules
(R1) - (R3) yield the same normative outcomes in cases 1-4: a and b ought to pay
taxes, while c and d do not. The problem is with the new Case 5. If we reconstruct
the norm governing LS2 as (R1) or (R3), we will conclude that e ought to pay tax; if
instead we accept (R2) as the correct reconstruction, e will have no such obligation.
This analysis may be generalised along the lines of Quines
underdetermination thesis. Quines claim pertains to theoretical discourse and
states that no amount of evidence (i.e., the sentences that express the facts we
observe) gives rise to a unique theory. Any theory is underdetermined by past
evidence; a future observation can conflict with it. Naturally it is underdetermined by
past and future evidence combined, since some observable event that conflicts with
it can happen to go unobserved. Moreover many people will agree, far beyond all
this, that physical theory is underdetermined even by all possible observations.5 In
the same way, no number of past and future individual legal decisions, as well as all
possible decisions, determines a unique set of rules of behaviour. There is no legal
system without abstract and universal rules.
The two above described thought experiments give rise to the following
conclusion: legal thinking cannot dispense with neither abstract rules nor individual
cases. It is a constant interplay between the abstract and the concrete. Importantly,
the reasons behind this fact are purely logical. Abstract legal rules do not fully
determine all particular obligations, while any finite set of particular cases is
compatible with many different systems of abstract rules.

5W.V.O. Quine, On the Reasons for Indeterminacy of Translation, The Journal of Philosophy
67(6), 1970, p. 178-179.
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3. Rule-based legal reasoning

Rule-based reasoning is characteristic of the approach to the law embraced


by civil law systems. A good example of this way of thinking is encapsulated in
Robert Alexys philosophy of law. Alexy claims that among legal norms, which
constitute any legal system, one should distinguish between rules and principles.
Rules are norms which are always either fulfilled or not. If a rule validly applies,
then the requirement is to do exactly what it says, neither more nor less6. For
example, Article 3471 of the Polish Civil Code states that the possessor of an
immovable property shall be entitled to claim the suspension of the construction of
a building if such construction might infringe his possession or threaten it with a
damage. Principles, on the other hand, are norms which require that something
be realised to the greatest extent possible given the legal and factual possibilities.
[They] are optimisation requirements, characterised by the fact that they can be
satisfied to varying degrees, and that the appropriate degree of satisfaction
depends not only on what is factually possible but also on what is legally possible7 .
An example can be found in the Constitution of the Republic of Poland, which in
Article 5 states that the Republic of Poland shall () ensure the protection of the
natural environment pursuant to the principles of sustainable development. Let us
observe that - at least when taken at their face value - legal rules differ from
principles in character. The former are norms which ascribe rights and obligations to
individuals - it is an individual who, as a possessor, is entitled to claim the
suspension of the construction of a building if such construction might infringe his
possession or threaten it with a damage; it is an individual, who - according to
Article 415 of the Polish Civil Code - is obliged to remedy a damage caused by her
fault to another person. Principles, on the other hand, express improper group
obligations. When the Polish Constitution speaks of the protection of the natural
environment pursuant to the principles of sustainable development, no concrete

6R. Alexy, A Theory of Constitutional Rights, translated by J. Rivers, Oxford University Press,
Oxford 2002, p. 48.
7 Ibidem, p. 47.
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obligation is placed on an individual; rather, it is an expression of a conviction that a
certain state of affairs (protection of the environment) is deontically desirable.
The necessity of introducing legal principles into a legal system springs from
the nature of rule-based reasoning described in the previous section. Since there is
no unique deontically perfect world, but a set thereof, at least some of the legal
norms must express improper group oughts, i.e. be legal principles. Because of
their character, in concrete cases principles may be in conflict with one another or
with a legal rule. Let us recall a famous example, often analysed in legal theory:
(Vehicle in the park) A local ordinance includes a norm that bans all vehicles
from entering a public park. An ambulance carrying a seriously injured person
has to go to the hospital. The shortest way to the hospital is through the park.
The question arises of whether the ambulance can enter the park.
The rule expressed in the ordinance leads to the conclusion that the ambulance
cannot drive through the park. This seems unjustified, since human life is at stake.
According to Alexy, our case is a good example of a conflict between a rule (No
vehicles can enter the public park) and a principle (Human life and health should
be protected by law). In order to resolve this conflict one must identify the principle
backing the rule. Given that the rule bans vehicles from entering a green area, it is
reasonable to assume that the rule is a concretisation of the principle requiring the
protection of the natural environment. Thus, the conflict we are considering is
ultimately a conflict between two principles:
(P1) Human life and health should be protected by law.
(P2) Natural environment should be protected by the law.
(P1) leads to the conclusion that the ambulance can drive through the park, while
the outcome of applying (P2) is opposite. In Alexys theory, such conflicts are
decided through the Weight Formula:

I i Wi Ri
Wi , j =
I j W j R j

where Wi,j stands for the concrete weight of the principle Pi relative to the principle
Pj, i.e. relative to the case at hand; Ii stands for the intensity of interference of Pj
with Pi; Wi stands for the abstract weight of the principle Pi, i.e. irrespective of any
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circumstances. Finally, Ri stands for the reliability of the empirical assumptions
concerning what the measure in question means for the non-realisation of Pi and
the realisation of Pj under the circumstances of the concrete case.8 The principle
that has a greater weight prevails in the concrete case over the other principle. The
last sentence needs to be stressed: the way Alexy accounts for the balancing
process illustrates that an exclusively rule-based reasoning is impossible. In the
case of a conflict between a rule and a principle, or between two principles, the
decision determined with the use of the Weight Formula is case-relative; moreover,
it cannot be reconstructed as a deductive argument in any non-trivial way. The
essence of balancing boils down to the determination of the intensity of interference
between the two conflicting principles, as well as the reliability of the empirical
assumptions one makes. This Alexian insight reaffirms our findings from the first
thought experiment described in Section 2: legal reasoning based solely on
abstract rules is insufficient to yield a unique answer to every legal question.
The above considerations lead to one more crucial observation. The rule-
based approach to legal reasoning requires utilising the so-called defeasible logic.
The concept of defeasibility was introduced into legal theory by H.L.A. Hart in 1949,
and has been analysed and often redefined since. For our purposes, it is
reasonable to define defeasibility as a feature of rules:
A rule of the form A => B is defeasible i it is possible that although A obtains,
B does not follow9 .
From this definition, it is clear that defeasible rules cannot be modelled with the use
of the material implication of the classical logic. A different formal system is called
for, and, in fact, a number of such formalisms have been developed10 . An example
is a system proposed by Henry Prakken and Giovanni Sartor11. On their account,
the given set of premisses, where legal norms are expressed as defeasible

8R. Alexy, On Balancing and Subsumption. A Structural Comparison, Ratio Juris, vol. 16, no. 4,
p. 446.
9 Cf. B. Broek, Law and Defeasibility, Revus, 23(2014), pp. 165170.
10Cf. H. Prakken, G. Vreeswijk, Logics for Defeasible Argumentation, Handbook of Philosophical
Logic, vol. 4, eds. Dov M. Gabbay et al., Kluwer Academic Publishers, Dordrecht 2002.
11Cf. H. Prakken, Logical Tools for Modelling Legal Argument. Study of Defeasible Reasoning in
Law, Kluwer Academic Publishers, Dordrecht 1997.
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implications, serves to construct arguments, which often lead to conflicting
conclusions. In the case described above, one can develop an argument based on
the principle that human life and health should be protected by the law, to the effect
that the ambulance can enter the park, as well as an argument based on the
principle that the natural environment should be protected by the law, with the
outcome that the ambulance is banned from entering the park. Those two
arguments attack one another, and the goal is to determine which one prevails. The
conclusion of the winning argument becomes the logical conclusion of our case (of
the set of premises we have). However, the determination of which of the
arguments prevails is, in general case, based on an extra-logical considerations
(such as the Weight Formula).
The use of defeasible logic has a number of interesting features. First, it is a
natural way to model conflicts between legal rules and principles. This cannot be
easily done in the classical logic, since it embraces the ex contradictione quodlibet
inference rule - once a contradiction is established (e.g., the sentences The
ambulance can enter the park and It is not the case that the ambulance can enter
the park are simultaneously derived), anything follows from the given set of
premises (e.g., that taxis can enter the park, that the constitution is not binding, or
that God does not exist, etc.). Meanwhile, the defeasible logic under consideration
has a built-in mechanism for handling such contradictions. Second, the use of the
defeasible logic makes it possible to preserve a structural resemblance between a
legal norm and its formalisation12 . Let us assume that - in the Vehicle in the Park
case - the legal rule Vehicles are not allowed into the park is valid, but on the
basis of the principle which requires human life and health to be protected by the
law we make an exception for the ambulance carrying a seriously injured person. If
we attempted a formalisation with the use of the classical logic, we would be forced
to include this exception - and any other such exception! - in the formulation of our
rule (Vehicles - with the exception of ambulances carrying seriously injured
persons - are not allowed into the park). The defeasible formalisation does not
require such a manoeuvre. We may stick to the original formulation of the rule,

12 Cf. B. Broek, Defeasibility of Legal Reasoning, Zakamycze, Krakw 2004, pp. 143-145.
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while the exceptions are introduced in particular cases through balancing of
competing arguments.
The rule-based approach to legal reasoning, which posits that a legal system
is a set of abstract norms, is compatible with the utilisation of defeasible logic. On
the one hand, this formal tool - in contrast with the classical logic - makes room for
decisions which are case-relative. Since - as I have argued in Section 2 - no set of
abstract rules can fully determine answers to all possible legal questions, this must
be reflected in the formalisation of rule-based legal reasoning. On the other hand,
defeasible logic also enables the preservation of the structural resemblance
between legal norms and their formal counterparts. When formalising a legal norm,
there is no need to incorporate all the possible exceptions into its logical
formulations. In this way, the idea that a legal system consists of explicitly
introduced norms is preserved at the logical level13.

4. Case-based legal reasoning

The basic tenet of the case-based approach to legal reasoning - highly


characteristic of the common-law systems - is that legal decisions are made on the
basis of previously decided cases (precedents). In the common-law it is called the
doctrine or the rule of stare decisis. The classic Blackstones Commentary defines it
in the following way:
The doctrine of the law then is this: that precedents and rules be followed, unless
flatly absurd or unjust; for though their reason be not obvious at first view, yet we
owe such a deference to former times as not to suppose that they acted wholly
without consideration14 .
What does it mean, however, to follow a precedent in the case at hand? It is
assumed that each precedent consists of two parts: ratio decidendi and obiter dicta.

13 Cf. ibidem, p. 145.


14 W. Blackstone, Commentaries on the Laws of England, vol. 1, New York 1827, p. 47-48.
12
Ratio decidendi is the foundation for the decision in the given case, i.e. whatever
aspects thereof justified the ruling; obiter dicta is everything else, i.e. those features
of the case that did not influence the ruling. Let us have a look at a classic case
from the English law:
Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger
beer and an ice cream. The ginger beer came in an opaque bottle so that the
contents could not be seen. Mrs Donoghue poured half the contents of the bottle
over her ice cream and also drank some from the bottle. After eating part of the ice
cream, she then poured the remaining contents of the bottle over the ice cream and
a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal
injury as a result. She commenced a claim against the manufacturer of the ginger
beer15.
Mrs. Donoghues claim was successful. The House of Lords decided that
Stevenson is liable for the injury she suffered. What was the ratio decidendi here?
The simple inspection of the facts of the case show that the decision of the House
of Lords is compatible with many rules: that Stevenson (i.e., a particular
entrepreneur) is liable for the injury suffered by Mrs. Donoghue (i.e., a particular
consumer); that Stevenson is liable for the injury suffered by anyone in connection
with a defective product he manufactured; that producers of beer are liable for the
defects of their products; that manufacturers of any goods are liable for the defects
of their products; etc. Of course, the House of Lords did provide a justification for
their decision. As Lord Atkin put it:
The rule that you are to love your neighbour becomes in law you must not injure
your neighbour; and the lawyer's question "Who is my neighbour?" receives a
restricted reply. You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour. Who then in
law is my neighbour ? The answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which are
called in question16 .

15 http://e-lawresources.co.uk/Donoghue-v-Stevenson.php
16 Ibidem.
13
Therefore, the reason behind the decision of the House of Lords seems to be the
rule that a manufacturer of goods is under a duty to take reasonable care for the
consumers of his products. This means that some of the particular features of the
Donoghue vs. Stevenson had no bearing on the courts decision: the fact that the
defective product was beer, that the plaintiff was a woman, or that Mrs. Donoghues
injury was psychological rather than physical in nature. This shows that the doctrine
of precedent requires a constant interplay between particular cases and abstract
rules, since the sole facts of the case are not sufficient to justify the decision.
To further illustrate this point it is reasonable to consider another aspect of
the common-law approach to decision-making. i.e. the process of distinguishing. It
boils down to declaring that the case at hand is dissimilar to some previous
precedent, and hence its ratio decidendi does not have to be followed. Let us
consider the following case:
Mr. McTear, who smoked cigarettes produced by Imperial Tobacco, was diagnosed
with lung cancer in 1992 and died the following year. His wife filed a suit against the
tobacco manufacturer, seeking damages for Mr. McTears death. One of the
questions before the court was that of Imperial Tobaccos duty of reasonable care
for their customers. Should the court follow the precedent set forth in Donoghue vs.
Stevenson and hold Imperial Tobacco liable for the death of Mr. McTear?17
Prima facie, it seems that the situation in the case under consideration is analogous
to the Donoghue vs. Stevenson: a manufacturer did not exhibit the adequate duty
of care and delivered a product that caused the death of Mr. McTear. However, in
their ruling the court noted that there is no breach of a duty of care on the part of a
manufacturer, if a consumer of the manufacturer's product is harmed by the
product, but the consumer knew of the product's potential for causing harm prior to
consumption of it. The individual is well enough served if he is given such
information as a normally intelligent person would include in his assessment of how
he wishes to conduct his life, thus putting him in the position of making an informed
choice.18 In other words, the court distinguished between two kinds of situations:
when the product causes harm and one cannot reasonably expect of the consumer
to know it, and when the product is harmful, but the consumer has all the

17 http://swarb.co.uk/mctear-v-imperial-tobacco-ltd-ohcs-31-may-2005/
18 Ibidem.
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information required to be aware of this fact and make an informed decision
whether to use the product or not.
Once again, we can see the interplay between cases and abstract rules.
McTear vs. Imperial Tobacco is a particular case which influences our
understanding of the rule governing an earlier precedent. The facts of Donoghue
vs. Stevenson together with the explicit statements of Lord Atkin are compatible
with two different rationes decidendi: that a manufacturer is always liable for the
damage caused by their products and that a manufacturer is liable for such
damages only if the consumer is (reasonably) unaware of the potentially dangerous
features of the product. The process of distinguishing - such as applied in McTear
vs. Imperial Tobacco - serves to state more clearly rationes decidendi of
precedents. As we have seen in the second thought experiment of Section 2, any
number of previously decided cases is compatible with many mutually exclusive
rules of conduct. The decision in Donoghue vs. Stevenson was compatible with
many rules, such as:
R1: A manufacturer is always liable;
R2: A manufacturer is liable only when a reasonable customer is not
informed or cannot easily foresee the danger associated with using the
product;
R3: A manufacturer is liable only when the particular customer, e.g. Mr.
McTear, is not informed about the danger associated with using the product;
R4: A manufacturer is liable unless everyone knows about the danger
associated with using the product;
etc.
From this perspective, distinguishing may be described as dispensing with some of
those rules and retaining others. The decision in McTear vs. Imperial Tobacco
excluded R1, R3, and R4, but retained R2. However, if the court decided to follow
Donoghue vs. Stevenson, no rule from the above set would be excluded. If, in turn,
the decision was to overrule the previous precedent, all the rules would be
dispensed with and a new (set of) rules introduced.

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5. Conclusion

I hope to have illustrated above the impossibility of arriving at a legal decision


by purely abstract or purely concrete reasoning. Even if the civil law systems are
constructed with the idea in mind that the law is a set of abstract rules introduced
by the legislator, they cannot - for logical reasons - ignore solutions to concrete
cases. This is reflected in the growing literature on the important role of precedents
in the civil law systems.19 The theorists of the common law, on the other hand, have
long struggled to explain what aspects of the precedents have the constraining
power over future decisions20. There is little doubt, however, that the power lies with
an abstract pattern of conduct hidden in the previously decided cases. The
problem is that no set of precedents generates only one such pattern - again, for
purely logical reasons, there are always alternative ways of extracting rationes
decidendi from precedents. Rule-based and case-based approaches may be two
different sides of legal reasoning, but they are sides of the same coin.

19Cf. D.N. MacCormick, R.S. Summers, Interpreting Precedents. A Comparative Study, Ashgate,
Dartmouth 1997, passim.
20Cf. J. F. Horty, Rules and Reasons in the Theory of Precedent, Legal Theory 17 (2011), pp.
1-33.
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