Facts
=
Case Facts
Fact 1
Case Fact 3
Fact 2
Case Fact 4
Fact 3
Case Fact 12
Figure 7.2 Facts and Case Facts
Let us now use this example with Facts 1-3 and Case Facts 1-32 to show how
wide is the scope that a court possesses in principle when determining the
material facts. We do this with a formula. If there
are "n" Case Facts to
choose from, and "y" elements, the choice is given by the formula: [(n) x (n-1)
x (n-2) . . . x (n-y)]. In the example, this is 32 x 31 x 30 which equals 29,760.
And to show how this number increases, if there are four material facts, Facts
1-4, the possibilities are 32 x 31 x 30 x 29 which equals 863,040.
This calculation, however, shows the extreme case where any case fact can be
material. Realistically, though, only some will be real contenders. To show the
width of the choice for
these, assume that only six case facts are real
candidates to be material and that only three are chosen (so that the ensuing
rule will have only three elements).
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This gives rise to [6 x 5 x 4] possibilities,
namely, 120 possibilities. This is still a large number, although considerably
less than 29,760.
Deciding the Level of Generalisation
Once a court has determined the material facts, Facts 1-3 in the example above
and Facts 1-n in the model for litigation, it uses these facts in the next stage of
making common law. Here it generalises these facts to construct the elements
of the common law rule. There are two aspects to this – forming the versions
of individual elements and combining the elements to make the rule.
Forming Individual Elements
To understand this process it is necessary to appreciate the nature of the
relationship between the elements of a law and the facts to which it applies.
Each element of law is a generalisation of the facts to which it applies.
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Hence if a court wants to make a common law rule that applies to the facts
before it, this rule must be a generalisation of those facts.
However, any material fact can be generalised to any of a number of
degrees.
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For example, an orange is part of a series of generalisations – it is a
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This is a highly artificial way of making the point but it does expose the
possibilities and the mathematics involved.
130
Chapter 3 Organising Law. See also Christopher Enright Legal Reasoning
Chapter 3 Analysing Legal Rules
131
Stone (1959)
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