Explanatory synthesis and rule synthesis: A comparative civil law and common law analysis

Abstract

I. Introduction In legal analysis, there are two methods of synthesis of precedent cases: rule synthesis and explanatory synthesis. Rule synthesis refers to the use of multiple authorities for the purpose of determining what is the prevailing law&amp,#8212,the prevailing legal rule&amp,#8212,on an issue. Explanatory synthesis refers to the use of multiple authorities for the purpose of demonstrating how the law should be interpreted and applied in the present circumstances based on how it has been interpreted and applied in past circumstances.Explanatory synthesis does not seek to determine what the law is, but how the law operates. Explanatory synthesis is a method of analysis and advocacy that demonstrates how the law will or should produce an outcome in a certain situation based on inductive syntheses of authorities that reveal how the law has operated in past situations. It also is a method of modern legal rhetoric that constructs knowledge and understanding of the role of precedents on the legal issue, persuading the audience as to the correctness or superiority of the attorney`s knowledge and understanding of how the law works, and seeking to motivate the audience to act in the rhetorical situation of the discourse.In comparative study of common law and civilian legal analysis, many scholars have noted a convergence in the two systems` use of precedent cases. Although common law legal theory historically has started from a position that judges are fully competent to create law and change the law through their adjudication of cases and the judicial opinions they write, and civilian theory historically has started from a position that judges are not empowered to create and change the law enacted by the legislature but rather are to read and apply the existing law to new cases, the practice of tribunals within the two families of legal analysis has not reflected clear distinctions in the approach to and use of precedent. Civilian judges refer to case law and acknowledge the persuasive effect of precedent on their determinations, and common law judges have become more civilian in their respect for legislative authority to enact laws that determine cases. A common law approach to precedent includes the theory of stare decisis, that decisions of courts in a proper position in the hierarchy of judicial authority of the appropriate jurisdiction shall issue opinions that are binding on lower courts within the same hierarchy, but it is no longer a safe proposition to suggest that a civilian judge will not find precedent to be binding and will not follow the guidance of prior judicial determinations in the adjudication of a new dispute. Similarly, a common law judge may go to extreme lengths to distinguish precedents, and precedents of the same court or same level of court will be rejected from time to time&amp,#8212,reversed, abrogated, modified, or replaced&amp,#8212,in the name of progress and justice. The purpose of this article is not to trace the exact points of convergence and comparative divergence in the use of and reliance on precedent. Rather, I use this convergence as a platform for the discussion of explanatory synthesis and rule synthesis. Explanatory synthesis, the inductive use of precedent in a demonstrative and persuasive presentation of how the law should be interpreted and applied, may be distinguished from rule synthesis because it does not depend on the precedent being binding or on the application of any form of the doctrine of stare decisis. Explanatory synthesis as a form of legal analysis relies on the open, scientific, inductive structure of the analysis and the use of multiple precedents for the accuracy and reliability of its predictions and conclusions. Rhetorically, explanatory synthesis relies on the structure of mathematical-scientific induction within a familiar deductive syllogistic structure, and on the open, demonstrative, and falsifiable analysis of multiple authorities both to create knowledge and understanding and for persuasive advocacy. Part II of this article will introduce the concepts of explanatory synthesis as distinguished from rule synthesis, while parts V and VI will explore the advantages of explanatory synthesis both analytically and rhetorically as a method of demonstrating the proper interpretation and application of precedents in civilian and common law systems. My discussion here is qualified by two topics that bear on the two uses of synthesis: one, the extent to which civil law and common law systems use and rely on precedent cases as a determiner and source of law, and two, the differing roles of precedent accepted within the legal structure, legal culture, judicial culture, and constitutional and statutory regime of a jurisdiction. No discussion of synthesis will be meaningful without at least noting these important background considerations that ultimately define and sometimes constrain my recommendations as to the use of explanatory synthesis and rule synthesis. Therefore, part III will discuss the first set of factors bearing on the two forms of synthesis, namely, four different uses and one non-use of precedent in civil law and common law systems, and part IV will discuss the second set of factors, involving the ability to synthesize precedents under a hierarchy of judicial authority in the jurisdiction, within the legal culture and the judicial culture of the jurisdiction, and under constitutional and statutory limitations of the jurisdiction. Part V will then discuss the use of explanatory synthesis in legal analysis and advocacy, and part VI will conclude with a discussion of the contemporary rhetorical implications of explanatory synthesis and rule synthesis.