Second, make sure that you understand the law involved. Identify the rule
which is ambiguous. Then organise this rule into elements and consequences.
If you do not know and understand the rule which houses the ambiguity, you
will
not fully understand the issue. In consequence, you will not properly
resolve the issue.
Third, apply the law to the facts. Where elements of the law clearly do or do
not apply to the facts of the case the position is clear and there is no issue. An
issue, of course, arises when it is not clear whether an element of the law (or a
sub-element) does or does not apply to the facts. Thus by applying the law to
the facts you will identify the issue or issues which gave rise to the
proceedings.
Having detected that there is an
issue, identify precisely the two components
of the issue, the part of the law that is ambiguous and the facts to which this
law may or may not apply. Then frame the issue in terms of law and facts –
does Fact Y satisfy Element X? By framing the issue in this way you provide a
sound base for analysis of the court’s attempt to interpret the ambiguous
element.
Step 2: Options
In the last step we identified and framed the issue, which consisted of an
ambiguous provision and the facts to which it may or may not apply. This step
(from
the model for interpretation)
now involves identifying the meanings of
the ambiguous provision.
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This has two aspects. (i) We see which meanings
of this provision the court identified. (ii) We also seek to identify any meanings
of the ambiguous provision that
the court may have overlooked, or an
alternative way of analysing the ambiguity to the one used by the court.
In addition to the meanings, it is necessary to identify the effect that
each
meaning will have.
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The reason for this is that arguments in policy about
which meaning should be chosen are based on an evaluation of these effects.
These two components of the options facing a court which is about to
interpret law can be set out in a table in the following way:
Meanings
Effects
Meaning 1
Effect 1
Meaning 2
Effect 2
Meaning n
Effect n
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Chapters 8-10
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Chapter 11 Effects
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