MZUMBE UNIVERSITY

FACULTY OF LAW
(FOL)
PROGRAME: LLB1
SUBJECT NAME: LEGAL METHOD II
SUBJECT CODE: LAW 121
NAME OF LECTURER: DR. NKOBOGO
TASK: GROUP ASSIGNMENT
SUBMISSION DATE: 31 May 2024
GROUP: 2
STREAM: B
NO, NAME OF STUDENTS REG, NO.
1 ELIUD M CONSTANTINE 1236165/T.23
2 ROSEMARY MATHIAS KABAKA 1236075/T.23
3 TEOPISTER F MBWILO 1236077/T.23
4 MICKMASH G MBEMBELA 1236179/T.23
5 LUCY A OLOMI 1236066/T.23
6 FAITH RAYMOND KIMARO 1838067/T.23
7 FREDRICK K ANDREA 1236134/T.23

QUESTION

A) Explain the notion of a “ladder of abstraction”.

B) Read the speeches of lord Buckmaster and lord Atkin in their entirety in the case of Donoghue v
Stevenson [1932] A.C 562 (House of lords) and explain the application of the notion of “ladder of
abstraction” and techniques for handling precedent in law.
 WORK OUTLINE

SCOPE OF THE QUESTION

 Clarification on the basis of the question, this part provides the requirements of the
question

INTRODUCTION

 Meaning of precedent from black’s law dictionary

MAIN THEME

 Explanation about the notion of ladder of abstraction

 Application of the notion of ladder of abstraction regarding the case of Donoghue v
Stevenson [1932]
 Techniques of handling precedent

CONCLUSION

 Explanation on the importance of the ladder of abstraction and precedent

REFERENCE

 Sources of the materials used in the work

SCOPE OF THE QUESTION

The analysis of the question is based on the discussion of three aspects, first aspect covers the
notion of the “ladder of abstraction”, where the discussion covers the meaning of ladder of
abstraction and also, clarify on how ladder of abstraction came into the existence and what are
the key aspects to consider during the application of the ladder of abstraction. Another aspect of
the question is, application of the notion of the ladder of abstraction in the case of Donoghue v
Stevenson regarding the speech of lord Buckmaster and lord Atkin. The last aspect of the
question is based on the techniques of handling precedent, this is by showing the key techniques
applied during the application of the principle from the former case toward the current one.

INTRODUCTION

Precedent, is a judicial decision which contains in itself a principle. The underlying principle
which thus forms its authoritative element is often termed the ratio decidendi. The concrete
decision is binding between the parties to it. The rule of precedent is not an umbrella. It does not
cover everything which comes after. It is an essential element of the rule itself that a precedent
must be used with skill.1

A) Explain the notion of “ladder of abstraction”.

Ladder of abstraction, is a conceptual framework that helps in understanding and organizing

legal concepts, arguments and decisions across different levels of generality and specificity. This
framework aids legal professionals in navigating the complexities of legal reasoning, drafting
legislation and adjudicating disputes.

Historical Background of “Ladder of Abstraction”

The concept of ladder of abstraction in law is link closely to the broader concept introduced by
S.I. Hayakawa (American linguist) but has specific application and implications within the legal
field. The historical background of ladder of abstraction involves development of legal reasoning
and the structure of legal rules and principles. During 19th and early 20th centuries, legal thought
and legal reasoning was merely based on legal formalism and realism, until in 1959, Herbert

1
Bryan A. “Blacks law dictionary” [11th edition, Thomson Reuters of 2009] Pg 1424
Wechsler, a prominent legal scholar argued for the importance of neutral principle in
constitutional law. his work emphasized the need for consistency and objectivity in legal
reasoning, which involving moving between abstract principles and specific application.
Wechsler’s ideas contributed to the broader understanding of the ladder of abstraction by
highlighting the importance of maintaining a balance between general legal standards and their
application to particular cases. Later on, ladder of abstraction became valuable tool in statutory
interpretation, judges use it to interpret law by moving from abstract legislative intent to concrete
case application. Todays world, ladder of abstraction is integral to legal various legal theories
and practices, also it cover many angle includes, provide or aid in legal education by helping
students and practitioners to understand the relationship between abstract legal doctrines and
specific case facts, it also assists in legal drafting and interpreting laws by ensuring that, legal
language can effectively bridge or link the gap between general principles and specific
applications.2

Levels of Ladder of Abstraction

i) Specific level rule, this is a legal directive that applies to a particular set of facts or narrowly
defined situation. Specific rule leaves a little room for interpretation and reasoning. Under this
level the specific issue or facts is determined in order to establish the general or fundamental
principle. Illustration, in the case of George V Skivingston, under this case the court establish the
specific facts or issue concern “liability of a person who is a manufacturer and a seller at the
same time” the law guide the person who is a manufacturer and a seller at the Same time to take
reasonable care or precaution during preparation or manufacturing of the article in order to avoid
any defective in the product or article.3

ii) Mid level rule or intermediate principle, this rule strikes or hold a balance between the
specificity of detailed rules and the generality of broad principles, this rule is more detailed than
general but still offer some room for interpretation, illustration in the case of George V
Skivingston, in this case the mid rule is embedded as “foreseeability principle, the manufacturer
must foresee and contemplate the risk of the articles if were defectively made, if those articles
were used by the final consumer, final consumer may suffer the detriments”4
2
Gold M, (2018) “Levels of abstraction in legal thinking” vol 42 at page 134
3
[1869] L.R. 5Ex. 1
4
George (n 2)
iii) Broad or fundamental principle, this principle set out fundamental legal norms or principles.
This principle can apply across a wide range of situations, also it serves as a foundational
element upon which more specific rules are built. Illustration, George V Skivingston, the broad or
fundamental principle of this case is “duty of care, the manufacturer owes duty of care to any
final consumer by taking precaution to make sure the product or article were safely and properly
made for the use of the final consumer”5

B)

Application of the notion of “Ladder of Abstraction” in the case of Donoghue V Stevenson

regarding the speech of lord Buckmaster and lord Atkin.

The case of Donoghue v. Stevenson, is a landmark decision in the development of the law of
negligence, particularly regarding the duty of care. Using the notion of ladder abstraction, we can
analyze how this case moved from specific legal applications to broad legal principles. 6

Specific Rule (Manufacturer’s Liability)

At the specific rule, this principle was applied specifically to the relationship between
manufacturers and consumers. The court held that a manufacturer of products owes a duty of
care to the ultimate or final consumer of those products. Under specific Rule “A manufacturer
who makes products intended for consumption by consumers, which are sold in such a form as to
prevent inspection by the consumer, owes a duty to the consumer to ensure that the products are
free from defects likely to cause injury.

Mid or Intermediate Doctrines (Neighbor Principle)

Moving up to the ladder, Lord Atkin articulated the "neighbor principle" in this case. He stated
that individuals owe a duty of care to their "neighbors” those people who are closely and directly
affected by one's actions. This principle provides a more concrete framework for understanding
the duty of care. "You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor. Who, then, in law, is my neighbor?
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
5
George (n 3)
6
(1932) AC 562
the acts or omissions which are called in question." the court of law apply neighborhood
principle for the purpose of discovering, whether the manufacturer is liable for the detriments
suffered by Mrs. Donoghue, this is by referring to the specific facts of the case.

Broad or fundamental rule (Duty of Care)

At the highest level of abstraction, the principle in Donoghue v. Stevenson, is the duty of care.
This principle provide that individuals must take reasonable care to avoid acts or omissions that
can foreseeably harm others. The court clarify that, the manufacturer owes duty of care towards
Mrs. Donoghue as the final consumer of the product, the manufacturer should prepare the
product properly and out of defective for the use of consumers. This application marked a
significant development in the law of negligence.

Generally, the case Donoghue V Stevenson, applied these principles and rules to the specific facts
involving Mrs. Donoghue became ill after consuming ginger beer that contained a decomposed
snail, which she purchased from a café. She sued the manufacturer, Mr. Stevenson, arguing that
he had a duty to ensure the product was safe for consumption. The court’s decision applied the
neighbor principle and specific rule about manufacturer’s liability to find in favor of Mrs.
Donoghue.

Techniques for handling precedent in law

Distinguishing

It is the process of cutting down the expressed ratio decided of the case. It may called restrictive
distinguishing to differentiate it from the other kind, genuine or non-restrictive distinguishing
occurs where the court accepts the ratio decidendi of the area case and does seek to curtail it, but
finds that the case before it does not follow within the ratio decidendi because of some material
difference of facts.7 In the case of Donoghue v Stvenson, the court applied distinguishing
technique regarding the case of dominion gas coy v Collins, it contended that in this case no one
can suggest ginger beer as an article dangerous in itself, the words of Dunedin, showed that, the
duty attaches only to such article, for I read (a peculiar duty) as meaning duty peculiar to special
class of subject mentioned. The court distinguished the principle and material fact of the
dominion’s case that the principle applies only to things dangerous itself where in Donoghue V
7
Palgrave, M. “Legal Method” (Marise, C, et. Al, 15th edition, creative print & design 2005) Pg 135
Stevenson the ginger beer was not dangerous in itself but a product if negligently manufactured
may result to injure the final consumer.8

Stare decisis

This is Latin tag (stare decisis) which is sometimes attached to the doctrine of binding precedent.
Since the phrase is translated to “to stand by decision”. This is a simplest doctrine of binding
precedent that, all higher courts binding lower courts, some courts also may bind themselves. it
has two dimension, vertical and horizontal dimension of precedent.9

Conflicting decision

This is inconsistence with area decision of the same case of the same rank. A court may not
follow its previous decision that conflicting each other. Therefore, the court of the appeal and
other court are free to elect between the conflicting decision.10 According to Baron cleasby in the
case of Francis v. Cockrell, he remark that “I do not propose to follow the fortunes of George v
Skivington ; few cases can have lived so dangerously and lived so long.11 Sumner L. in the case
of Blacker v Lake & Elliot, closely examines its history and I agree with his analysis.12 He said
that he could not presume to say that it was wrong but he declined to follow it on the ground
which is I think firm that it was in conflict with Winterbottom v Wright.13

Overruling

is authoritative declaration that the principle in a previous case never existed at all. A precedent
loses its authority when overruled, that is, it becomes null and void and a new principle is
authoritatively substituted for the old one. Overruling of a precedent is an act of superior
jurisdiction and can only be done by a court of higher authority.14

CONCLUSION

Summing up the discussion so far, the ladder of abstraction is a vital tool in the legal field,
enabling the navigation between broad, foundational principles and specific concrete
8
[1909] AC 640
9
Williams G, “Learning the law” (smith. A. ed, 12th edition, sweet and Maxwell 2002) Pg 104
10
Josh. A, “Handbook of legal language” (4th edition, hind law house, 2009) Pg 16
11
[1870] L.R., 5 Q.B. 501
12
[1912] 106, L.T. 533
13
[1842] M&W 109
14
Williams G, “Learning the law” (smith. A. ed, 12th edition, sweet and Maxwell 2002) Pg 104
applications. By using this framework, legal professionals can ensure their reasoning is both
principled and practically applicable. But also, on the other hand, precedent play an important
role in the solving and cover the future cases by developing different legal principles. Initially
precedent is a foundation of the principle of negligence through establishment of different legal
principle which covers negligence issues.

REFERENCE

CASES

Donoghue v Stevenson [1932] AC 562

Francis v Cockrell L.R [1870] 5 Q.B. 501

Winterbottom v Wright [1842] M&W 109

Blacker v Lake & Elliot [1912] 106, L.T. 533

George v Skivingston [1869] L.R. 5Ex. 1

dominion gas coy v Collins [1909] AC 640

BOOKS

Bryan A. “Black’s law dictionary” [11th edition, Thomson Reuters of 2009]

Williams G, “Learning the law” (smith. A. ed, 12th edition, sweet and Maxwell 2002)

Josh. A, “Handbook of legal language” (4th edition, hind law house, 2009)

Palgrave, M. “Legal Method” (Marise, C, et. Al, 15th edition, creative print & design 2005)

JOURNALS

Gold M, (2018) “Levels of abstraction in legal thinking”