Applying and Interpreting Law
Elements of a rule constitute a checklist that can be used when applying law to
a set of facts
to check if the legal rule covers the facts and visits them with
consequences. This process also uncovers any issue of interpretation. A
student applies law to
facts in order to answer a problem question, which
imitates some of the major tasks of lawyers and courts in litigation.
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To apply a legal rule to facts one proceeds element by element (and
subelement
by subelement) asking in each case the question: Is there a fact in
this set that satisfies this element? Sometimes the answer will be a clear “yes’
or “no”. This is applying law in the simple sense.
But at other times the answer will be “maybe”. This “maybe” answer is caused
by ambiguity. The element is ambiguous, possessing two or more meanings.
According to at least one meaning the element applies, while according to at
least one other meaning the element does not
apply. ‘Maybe’ is a mixture of
‘yes’ and ‘no’. In other words, systematic checking of the law against the
facts flushes out any issues of interpretation because the “maybe” answer is a
dead giveaway. Moreover, because this process is working with pieces of the
rule in the form of element and subelements it helps the lawyer to identify the
precise location and nature of the ambiguity, something that reported law cases
sometimes do not do.
Obviously once the issue has been detected the next task is to resolve it by
interpreting the provision in question. This is discussed later in this book.
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Writing Law
Organising a legal rule is a necessary prelude to writing about the rule. There is
a simple reason for this. Good writing is clear writing. Clear writing is
structured writing. As it turns out, there is an obvious structure to use for legal
writing because each legal rule has an inherent and simple structure constituted
by its elements and consequences. This is nature’s gift to legal writing.
To use this structure for legal writing, one proceeds in the following way:
(1)
At the outset state the list
the elements and state the consequences of
the rule.
(2)
After this describe, one by one, each element of the rule. In the process,
list and describe any subelements of the element.
(3)
Finally, describe the consequences.
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Chapter 28 Answering a Problem Question
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Chapter 10 Classifying Meanings
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