Critical legal analysis PDF

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CRITICAL LEGAL ANALYSIS STUDY NOTES

UNDERSTANDING THE RATIO What is a ratio decidendi? •

The reasons for a court's decision o

if there is no reason for judgement then constitutes unfair decision

•

from an upper court which binds lower court

•

important because it is part of the judgement that binds the lower court

Facts to understand before analysing your ratio •

understand facts of the case including procedural history

•

correctly identify the issue/legal question before the court

Obiter dictum •

remark made in passing by the PO

•

at first incidental but could become dicta

•

Sometimes judges expressly state when dealing with obiter o

"an issue not presented here"/"this appeal does not raise the issue"

Guidelines to understanding the reasoning of a case •

identify the types of reasoning applied by the court o

eg. precedent, fairness, logic, public policy...

•

appreciate the weight of the different reasonings

•

use of the constitution/influence of the constitution

•

use of ordinary legislation/influence of ordinary legislation

Analysing the judgement •

strengths of judgement?

•

weaknesses?

•

who benefits?

•

who is prejudiced?

•

how does the judge reason?

•

applying the relevant law?

•

following precedent?

S v Jordan •

Does s20(1)(aA) discriminate unfairly against women? o

o

[8] ▪

Debate turned to question of proper construction of the section

▪

contended...section strikes at both prostitute and customer and is therefore, not discriminatory

▪

in view of...can be approached on footing that it is directed at prostitute

[9] ▪

to only penalise recipient of reward does not constitute unfair discrimination on grounds of gender

▪

penalises "any person" who engages for reward •

o

[10] ▪

not indirect discrimination either

▪

section makes distinction between prostitute and customer

▪

o

•

prostitute conducts business and is likely to be a repeat offender

•

customer seeks service on an/one occasion may not be a repeat offender

according to joint judgement, purpose of prohibition is to outlaw commercial sex •

prostitute is engaged in business of commercial sex

•

one way of curbing is to strike at merchant ito a criminal sanction

•

differentiation between a dealer and a customer is a common distinction made in a number of statutes

[11] ▪

o

male and female prostitutes

Ito common law, customer is "socius criminis" and commits offence under s18 Riotous Assemblies Act and is liable to same punishment as prostitute

[12] ▪

purpose of s20(1)(aA) is to prohibit commercial sex and does not protect the

person who pays for it o

[13] ▪

o

[14] ▪

o

o

Sexual Offences Act enacted in the context of a system of law where all who participate in prohibited conduct are guilty and liable to same punishment of principal offender. - same wrt s20(1)(aA)

women and men who participate in this crime are equally liable ito CL and Riotous Assemblies Act

[15] ▪

the only significant difference is within the general act itself

▪

gender is not a differentiating factor

▪

prohibition is gender neutral and guilt and punishment are equal

▪

any "discrimination" resulting from act is that both parties are dealt with under different provisions of the law and cannot be considered unfair

[16] ▪

if public sees a difference, result of social attitude and not the law

▪

stigma attached to conduct and not by gender •

▪

o

agrees...by engaging, prostitutes knowingly accepts risk of lowering standing in eyes of community

[17] ▪

once accepted that section is gender neutral and by engaging, they attract stigma •

▪

o

cannot be said that female prostitutes are discriminated against based on gender

"I am not persuaded" by argument that gender discrimination exists because more female prostitutes than male and would not be persuaded if same argument was held where roles where reversed.

[18] •

o

attaches to both female and male prostitutes

[19]

in view...gender neutral position that differentiates between dealer and customer cannot be said to be discriminating on basis of gender

▪

contended...in practice only prostitutes are prosecuted and customers not •

o

what happens in applicateion does not show flaw in law but rather in applcation thereof

[20] ▪

conclude...s20(1)(aA) is not inconsistent with s8(2) Interim Constitution

COMPARPING MAJORITY, MINORITY AND SEPARATE JUDGEMENTS Why judges write judgements •

•

Accountability o

how and why they reached the decision

o

reasons important for appeal court to consider

Judicial Independence

Majority judgement •

>50% judges have ruled in favour of a party

•

how important is a majority judgement? o

precedent

o

majority judgement is not the only one to read

What is a separate concurring judgement? •

agrees with conclusion of majority but for different reasons

•

What purpose does it serve? o

elaborates

o

supplements

o

qualifies

Minority judgement •...