Per Incuriam vs. Sub Silentio

Attribute	Per Incuriam	Sub Silentio
Definition	Latin term meaning "through lack of care"	Latin term meaning "under silence"
Impact on decision	Errors made inadvertently due to oversight or carelessness	Issue not addressed or discussed in the decision
Legal consequences	Decision may be considered invalid or incorrect	Issue may not be legally binding or enforceable

Introduction

Legal terms can often be confusing, especially when they are in Latin. Two such terms that are commonly used in the legal field are "per incuriam" and "sub silentio." While both terms refer to errors in legal reasoning, they have distinct attributes that set them apart. In this article, we will explore the differences between per incuriam and sub silentio, examining their meanings, implications, and applications in the legal context.

Per Incuriam

Per incuriam, which translates to "through lack of care," is a legal term used to describe a decision that has been made without proper consideration of the law or relevant facts. When a court makes a decision per incuriam, it means that the decision was made in error due to oversight or negligence. This can happen when a court fails to consider binding precedent, relevant statutes, or important facts in a case. A decision made per incuriam is considered to be incorrect and can be challenged or overturned on appeal.

One of the key attributes of per incuriam is that it is a mistake that is made unintentionally. It is not a deliberate disregard of the law or facts, but rather a genuine error that occurs due to oversight or carelessness. This distinguishes per incuriam from other types of legal errors, such as errors of law or fact, which may be made intentionally or negligently. Per incuriam is seen as a more forgivable mistake, as it is often the result of human error rather than malice or incompetence.

Another important attribute of per incuriam is that it can have significant implications for the legal system. When a decision is made per incuriam, it can undermine the authority and integrity of the court that made the decision. It can also lead to confusion and uncertainty in the law, as decisions made per incuriam may set incorrect precedents that other courts are then bound to follow. As such, it is important for courts to be vigilant in avoiding decisions made per incuriam and for parties to challenge such decisions when they occur.

Sub Silentio

Sub silentio, which translates to "under silence," is a legal term used to describe a decision that is made without explicit discussion or consideration of a particular issue. When a court makes a decision sub silentio, it means that the decision is based on an unstated or implicit reasoning that is not fully articulated in the court's opinion. This can happen when a court reaches a conclusion without addressing all of the relevant legal arguments or issues raised by the parties. A decision made sub silentio may be ambiguous or unclear, as the reasoning behind the decision is not fully explained.

One of the key attributes of sub silentio is that it can create uncertainty in the law. Because the reasoning behind a decision made sub silentio is not fully articulated, it can be difficult to determine the basis for the decision or how it should be applied in future cases. This can lead to confusion and inconsistency in the law, as courts may struggle to interpret and apply decisions made sub silentio. Parties may also be left in the dark about the legal principles that guided the court's decision, making it harder for them to understand and challenge the decision.

Another important attribute of sub silentio is that it can be a deliberate or strategic choice by the court. Courts may choose to make a decision sub silentio in order to avoid addressing a controversial or difficult issue, or to leave room for future development of the law. By not explicitly discussing certain issues or arguments, courts can sidestep potential conflicts or uncertainties in the law, while still reaching a decision on the case at hand. This can be a useful tool for courts to manage complex or sensitive legal issues, but it can also create challenges for parties seeking clarity and consistency in the law.

Comparison

While per incuriam and sub silentio both involve errors in legal reasoning, they have distinct attributes that set them apart. Per incuriam is a mistake made through lack of care, while sub silentio is a decision made without explicit discussion of a particular issue. Per incuriam is typically unintentional and can have significant implications for the legal system, while sub silentio can create uncertainty and ambiguity in the law. Per incuriam is seen as a forgivable mistake due to oversight or negligence, while sub silentio can be a deliberate or strategic choice by the court to avoid addressing difficult issues.

• Per incuriam is a mistake made through lack of care
• Sub silentio is a decision made without explicit discussion of a particular issue
• Per incuriam is typically unintentional and can have significant implications for the legal system
• Sub silentio can create uncertainty and ambiguity in the law
• Per incuriam is seen as a forgivable mistake due to oversight or negligence

Conclusion

In conclusion, per incuriam and sub silentio are two important legal terms that refer to errors in legal reasoning. While per incuriam involves mistakes made through lack of care, sub silentio involves decisions made without explicit discussion of certain issues. Understanding the attributes of per incuriam and sub silentio is crucial for navigating the legal system and ensuring that decisions are made with proper consideration of the law and facts. By being aware of these terms and their implications, legal practitioners can work towards a more just and consistent application of the law.