Foundation
Using law is explained with a model. This model incorporates two specific
models, the model for litigation and the model for transactions.
These models for using law in litigation and transactions build on the model
for analysing or organising a legal rule.
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This model is based on structures
that law naturally possesses. Subject to limited exceptions that are of no
concern here, each legal rule, possesses a standard structure, which consists
of three components – elements, consequences and a conditional statement:
(1)
Elements. Elements of a legal rule delineate that part of the world, the
facts, to which the legal rule applies and which it therefore regulates. To
perform this task an element delineates a category or type of fact,
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so that the
relationship of an element to a fact that fits or satisfies the element is that of the
general to the particular. In short, each element describes a required fact for
the rule to apply.
Elements are labelled Element 1, Element 2 and so on. The
elements in a rule are collectively designated Elements 1-n.
(2)
Consequences. While elements identify the part of the world that the
rule seeks to change, the way in which the rule directly and legally changes the
world is through the consequences it imposes on the parties when it applies to
a set of facts. Therefore, a legal rule must also state the consequences it visits
upon the parties. Consequences are designated Consequences 1-n or just
Consequences for short.
(3)
Conditional Statement. So far the legal rule has two components,
elements that identify the facts to which it applies and consequences that
prescribe how it will change the position of the parties to a case when the rule
applies to them. To ensure the operation of the rule, something has to impose
these consequences on the facts. This is done by framing the rule as a
conditional statement. It takes the following form: “If facts occur that fall
within the classes of facts delineated by
the elements, the consequences
designated by the rule apply to those facts”.
To develop the model for litigation and the model for transactions we build on
these structures in a logical way.
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Each rule consists of elements, labelled
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Christopher Enright Legal Reasoning Chapter 3 Analysing Legal Rules
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Justice McHugh expressed this in Kingston v Keprose (1987) 11 NSWLR 404
at 421 in the following way: “"A rule of law enacted by statute consists of a
proposition which gives rise to legal consequences when the act or omission of
some person falls within the factual outline delineated by that proposition”. His
Honour's analysis in this judgment was referred to with approval by a six person
joint judgment of the High Court in Bropho v Western Australia (1991) 171 CLR 1 at
20.
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Christopher Enright Legal Reasoning Chapter 3 Analysing Legal Rules
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