Precedent, Principles, and Presumptions

Terry Skolnik, "Precedent, Principles, and Presumptions" (2021) 54:3 UBC Law Review 935

51 Pages Posted: 28 Dec 2021

See all articles by Terry Skolnik

Terry Skolnik

University of Ottawa, Faculty of Law, Civil Law Section

Date Written: December 23, 2021

Abstract

Judges frequently resort to three adjudicative tools to decide cases: precedent, principles, and presumptions. First, courts consider precedent and draw analogies between past decisions and the case before them. Second, judges evaluate legal principles. They employ multi-factor balancing tests and frameworks to reconcile competing principles. Third, judges create presumptions that ease evidentiary burdens and provide default ways to resolve disputes. Although each of these three adjudicative tools appear distinct, they are not mutually exclusive. They overlap and interact with one another in an ongoing organic process that shapes the law’s evolution.

This article offers a novel account of the relationship among precedent, principles, and presumptions. It argues that these three adjudicative tools intersect with each other in important ways and demonstrates how they can correct one another’s respective deficiencies. It also shows that one particular adjudicative tool – presumptions – fulfils functions that theorists traditionally overlook.

Presumptions correct legal frameworks and multi-factor balancing tests that misfire, support principled asymmetries, promote access to justice, and shape choice architecture in adjudication. Drawing on the past several decades of Supreme Court of Canada jurisprudence in the area of public law, this article discusses why the Court is increasingly creating presumptions in the realms of criminal law, administrative law, and constitutional law.

Keywords: Precedent, principles, presumptions, legal theory, jurisprudence, adjudication

JEL Classification: K10, K19, K39, K49

Suggested Citation

Skolnik, Terry, Precedent, Principles, and Presumptions (December 23, 2021). Terry Skolnik, "Precedent, Principles, and Presumptions" (2021) 54:3 UBC Law Review 935 , Available at SSRN: https://ssrn.com/abstract=3992781

Terry Skolnik (Contact Author)

University of Ottawa, Faculty of Law, Civil Law Section ( email )

57 Louis Pasteur Dr
Ottawa
Canada

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