Rules
Rule 0
Rule 1
Rule 2
Rule n
Figure 7.1 Rules
These options for the rule have two components. First, a court has to decide
whether to make a new common law rule or not. If it decides not to make a
rule, it is opting for Rule 0. Rule 0 is the null option, the option to do nothing
and leave things as they are. So, if a court "makes" Rule 0 it does nothing.
Rule 0 is introduced for similar reasons to those for the introduction of Statute
0 in the list for statutes; it also functions in a similar fashion, including
permitting us to put all the options for choosing a rule on the one list.
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If a court does decide to make a rule it has a further choice because each
possible rule has both elements and consequences. This means that the court
in question has two choices. One is to decide the elements of the rule. This
determines the parties and circumstances that the law will affect. The other is
to decide the consequences that the rule will bring to the parties involved when
it applies to a set of facts.
Elements
Introduction
Once a court rejects Rule 0 as a possibility, and decides to make a common
law rule, it has to determine the content of the rule. One aspect of this,
discussed here, is to determine the elements of the rule, Elements 1-n because
each version of a rule will differ from another with respect to their elements or
their consequences or both.
General considerations about choice of elements have been covered in
discussion of options for statutes
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and these apply also to making common
law rules. Given this, the task now is to consider a special constraint
concerning the elements of a common law rule. This constraint operates in the
typical case where a court is formulating a common law rule that will decide
the case in favour of the plaintiff. In making such a rule the court is bound by
the facts of the case before it, because any common law rule that it makes to
resolve the case in favour of the plaintiff must apply to these facts.
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Chapter 6 Statutes
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Chapter 6 Statutes
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