Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

1.3  The reasoning

Activity 2 The reasoning in the judgments

(Allow 20 minutes)

Read again the summaries of Lord Atkin’s and Lord Buckmaster’s opinions in Boxes 2 and 3. Note down for each whether you think they are engaging in one or more forms of logical reasoning: deductive, inductive and/or reasoning by analogy. If so, why do you think this? Consider whether there might be the appearance of logical reasoning which is not actually present in the decision-making process.


Lord Atkin. It is possible to argue that Atkin is using all three forms of reasoning: deductive, inductive and reasoning by analogy. What he says he is doing is using the different specific examples of duty of care from the cases to establish a general principle that can be used to show that there is a duty of care in Donoghue. This is inductive reasoning. However, he also takes a very general premise, which is to love your neighbour, and deduces from this the rule that there is a duty of care in this case. This is similar to deductive reasoning, represented in Figure 4.

Described image
Figure 4  Deductive reasoning in Donoghue

Finally, we have seen that common law is most associated with reasoning by analogy, because it requires picking those cases most similar to the current case based on the factors in them that are considered most important. While Atkin does not represent this as his reasoning, he clearly makes decisions based on his selection of different parts of the cases that he considers to be analogous to the case of Donoghue and, just as importantly, he excludes cases that he does not think are analogous. He then transfers the additional characteristic in the analogous cases, that of the existence of a duty of care, over to the situation in Donoghue. This is reasoning by analogy and probably better describes what he is doing with the cases than straightforward inductive reasoning because his choice of analogous cases is the most important element in the process.

Lord Buckmaster. This is presented as a fairly clear case of deductive reasoning from the general to the specific. The pre-existing general rule is that there is no duty of care outside a contract. There are exceptions to this rule. The circumstances in Donoghue do not fall within these exceptions. Therefore, they fall within the general rule, so there is no duty of care. This might be represented as the following syllogism:

  • major premise – for situations falling within the general rule there is no duty of care
  • minor premise – the situation in Donoghue falls within the general rule (and not the exceptions)
  • conclusion – therefore there is no duty of care in Donoghue.

This is deductive reasoning using legal rules, but there is a possibility that Buckmaster might be deducing an outcome from the general and arguably non-legal (social and economic) principle that businesses should not be held responsible for so many people and potential claims when manufacturing products. The case law is then chosen and interpreted to fit this preconceived principle. This is similar to what Lord Atkin is doing with the ‘love your neighbour’ principle. You might see this as enforcing the purpose behind the law or bringing non-legal factors into legal decisions, or both.

As we have seen, the appearance of deductive reasoning can be misleading in judicial reasoning. Buckmaster, like Atkin, makes choices about the cases he thinks are relevant and the most important parts of them. He is reasoning by analogy when he draws comparisons with some cases and not others based on the information he considers important. He then transfers an additional characteristic, no duty of care, across from those cases that are analogous.

The question that arises from the end of the previous activity is how logical and legal the reasoning actually is. We can see that the more logical and certain forms of reasoning are presented more clearly by the lords while less certain forms are more hidden. But Lords Atkin and Buckmaster make many choices when they come to their completely opposite conclusions: choices as to which cases to look at, which parts of those cases, where to find their ratio decidendi, how to categorise them, what are the most important facts, how they relate to the current case, and so on. They also have economic, social and moral principles in mind, which influence their choices, and exist outside of a strict legal reasoning process. In light of this is there really any certainty as to what the judges will declare the law to be in any new case, based on previous cases and legislation?

You should now watch the following video, which explores the case of Donoghue, judicial opinion and ratio.

Skip transcript: A study of Donoghue v Stevenson

Transcript: A study of Donoghue v Stevenson

In August of 1928, May Donoghue and a friend decided to visit the Wellmeadow Cafe in Paisley for a pear and ice, and in the case of May Donoghue, an ice cream and a bottle of ginger beer.
Hello there. A table for two, yes?
It has human interest in a very stark way. The two ladies going to the cafe and buying ginger beer.
Everything was paid for by May Donoghue's friend.
Ladies, what would you like?
Um, can I have a pear and ice, please.
Now, the act of buying a bottle of ginger beer for a friend would not be unusual now, and it wasn't then. It was a transaction that occurred hundreds of times each day in countless cafes across the country.
It appeals to people of all ages, of all interests, and of all levels.
Pear and ice cream for you, was it?
But when her friend bought May Donahue that bottle of ginger beer, the transaction - and its aftermath - formed the basis of one of the most celebrated and important Scottish cases in world legal history.
Thank you. Thank you.
When you have the combination of important precedent and an interesting story, it undoubtedly captures the imagination of lawyers.
For in her Stevenson manufactured bottle of ginger beer, May Donoghue didn't just get ginger beer -
It's hard to see in.
- she discovered something else as well.
It's got Paisley, a cafe, a friend, ice cream, ginger beer, and this decomposed snail. It's just kind of perfect.
The decisions of courts in cases such as Donoghue v Stevenson are hugely important and have a significant impact on the development of the law, and as such, need to be recorded. They are recorded in volumes of law reports.
Law reporting really dates from the 16th century when judges started to keep records of cases decided in the Court of Session. Through the 17th century, judicial collections known as practics were made. And some judges' collections were printed. The first of all were those of Lord Stair.
In 1693, there is the great innovation. For the first time, people can attend the inner house from the judges, give their opinions on the case. Before that, it had always been done in secret. And from the 1690s onwards, the faculty of advocates becomes very keen to collect decisions of the court.
In the later 18th century, Scots lawyers come to value precedent. They start to develop the idea that through the argument between the lawyers, legal points are well worked out. And so the lawyers came to see judicial decision making as an important way of identifying the principles that they started to think were inherent in the law.
Then linked to that were reforms in the Scottish court structures in the early 19th century. And the Scottish courts moved away from the collegiate nature of the bench, with a large bench deciding, to what we would now see as first instance and second instance structure in the Court of Session. And this, of course, made precedent clearer. And of course, it made for the opinions of the judges more significant, because we would have one judge focusing on a point, and you could have what, by the 1830s, the Scots were starting to call the ratio decidendi, the principle which had been decided by an individual case.
The court in Edinburgh was making decisions, which was very important. It was establishing principles of law, elucidating principles of law. And that information about what it was doing, what decisions were making, had to get out there to the general public, had to get out there to the lawyers.
Faculty of advocates was interested in getting a collection of reports for the use by the advocates in the court in the early 19th century.
And the way to do that was to have reports of the decisions which were publicly available and that could be used by lawyers in advising their clients and by the general public in knowing what the law is. Session cases have been around for quite a long time. They first formally started in 1821.
There are three divisions within it - the High Court of Justiciary and the reports from the High Court of Justiciary, which is the Supreme Criminal Court in Scotland. Then there are the decisions of the Court of Session, which is the Supreme Civil Court within Scotland. And then we also have the decisions of the United Kingdom's Supreme Court in Scottish matters.
The practise in Scotland of detaining persons for up to six hours...
For nearly 200 years, session cases have provided an authoritative record of the most important case law of Scotland.
In essence, the most significant Scots law report that we've all grown up with since we were in law school so we're familiar with it and we obviously probably go to it first if there's a session case report, you would use it first because it's the authoritative one.
End transcript: A study of Donoghue v Stevenson
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