full range of choice of elements before a court consists of the combination of
two specific choices – the choice for defining each individual element and the
choice for combining the individual elements to create a rule. Putting this in
another way, each additional element brings another choice of degrees of
generalisation.
This can be illustrated using our example above of Clement the bell ringer. The
element ‘Clement’ has 5 versions, the element ‘orange’ has 4 versions and the
element ‘destroy’ had 4 versions. This means that the full choice open to a
court in deciding the elements of the legal rule in this case consists of 80
options (5 x 4 x 4 = 80).
Overall Choice
Discussion above shows how the two processes that a court has to perform to
make a rule, deciding material facts and deciding the level of generalisation,
furnish numerous options. In taking two hypothetical examples used as
illustrations, we showed that:
§
Choosing 3 material facts from six contenders gave 120 choices
[6 x 5 x 4]
§
Choosing a rule from three elements, Elements 1-3, where
Element 1 has 5 versions, Element 2 has 4 and Element 3 has 4 versions gives
80 choices [5 x 4 x 4]
Constructing this example demonstrates how fluid is the process of making
law because of the large number of choices that face a court. This is relevant
for understanding common law in several ways.
First, it explains the process
of making common law at the same time as it highlights the choices open to a
court. Second, by revealing the degree of choice that underpins common law
we have exposed one of the reasons that common law is fluid. It is always
possible for a later court to revisit and remake some of the choices that were
made to compose a rule. By this means the rule is refashioned.
139
Other Possibilities
Discussion above has considered the simple case where the common law rule
that the court formulates will decide the case in favour of the plaintiff. For this
task the court views the actual facts of the case, selects some as material, and
then generalises these facts to some degree each to frame the rule.
Obviously, it is possible that a court
proceeds in a different way. It may
formulate a new common law rule, but formulate a rule that does not apply to
the facts and so does not win the case for the plaintiff. In other words, the
court agrees with the plaintiff that a new rule could be made in the broad area
139
Chapter 10 Classifying Meanings
 |
 |
 |