Because Element 2 is ambiguous, there can be doubt as to whether it is
satisfied. It all depends, as explained earlier,
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on whether the party who has
to prove their case possesses Evidence 2M1 or Evidence 2M2. Possibilities in
this regard are portrayed in a table.
In this table, a tick (
) indicates that an
element (Element 2M1 or Element 2M2) has been satisfied, and a cross (x)
indicates that it is not satisfied:
Law
Case 1
Case 2
Case 3
Case 4
Law
Facts
Evidence
One
Other
Neither
Both
X
X
Element 2M1
Fact 2M1
Evidence 2M1
Element 2
X
X
Element 2M2
Fact 2M2
Evidence 2M2
Figure 9.2 Analysis of the Effect of Ambiguity
Analysing the effect of ambiguity in this way shows that ambiguity can create
uncertainty about whether a law applies to a set of facts, but does not do so in
every case. As illustrated by Cases 1 and 2, ambiguity matters only where on
one meaning of the provision it applies to the facts while on another meaning it
does not apply. Alternatively, as illustrated by Cases 3 and 4, despite the
ambiguity, in some cases it does not matter which meaning is used and applied
to the facts because the result would not be any different.
Finding the Issues
To find any issues of law, it is first necessary to organise the legal rule in the
standard way by dividing it into its elements and consequences.
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Then, to
determine if there are any issues, it is necessary to apply the law to the facts.
Applying law to facts is more fully explained later,
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but in essence it entails
systematically checking each element of the rule, and each element of the
consequences, against each of the facts. One measures each element in turn
against each of the facts, asking whether the facts do or do not constitute (or
fit within or satisfy) the element. When this is done, there will be one of two
results.
One is that it will be clear that an element does or does not apply to the facts.
That is, when one asks the question: “Do the facts fit the element?” the answer
will be an unqualified “yes” or “no”. In this case there are no issues, so for
this element the process of applying law is at an end.
However, it is also possible that there is some uncertainty about whether the
element applies to the facts. That is, we answer the question not “yes” or
“no”, but “maybe”. This uncertainty occurs because the element of the law
has two or more meanings. Assume, for simplicity, that there are just two
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Chapter 4 Forming Law
158
Chapter 3 Organising Law
159
Chapter 20 Model for Applying law
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