propositions relating to elements. These concern subelements as well as the
distinction between positive elements and negative or defensive elements.
Subelements
Elements have components that are generically called subelements. The point
is that elements may be divided into various levels of sub-subelements. There
will be as many divisions of the elements of a rule into subelements as it takes
to capture the entire legal rule. Because these subdivisions of elements are
possible the part of a legal rule constituted by elements potentially has a
hierarchical structure composed of the elements and the various levels of
subelements.
Positive Elements and Defensive Elements
In the obvious case a defendant defends a case by disputing the plaintiff’s
attempt to prove one or more elements of the case. In addition to defending a
case in this way, a defendant may also raise a defence that is incorporated into
the elements of a legal rule. For the purpose of this analysis, elements are
usefully classified as one of two kinds, positive elements and defensive
elements.
Positive Elements
The positive elements are the elements that a plaintiff or prosecutor must prove
to make out their case. Every legal rule authorising a decision must have
positive elements.
Defensive Elements
Defensive elements can be labelled negative elements in contrast to the positive
elements. Commonly they are just labelled “defences”. It is not necessary for a
legal rule authorising a decision to contain negative elements, but many of them
in fact do.
A defendant may or may not rely on a defence, depending on the facts of the
case:
(1)
No Defence. If a plaintiff or prosecutor establishes all of the positive
elements of the legal rule and the defendant has not established a defence, the
plaintiff or prosecutor has made out their case and won.
(2)
Defence. If a plaintiff or prosecutor establishes all of the positive
elements of the legal rule a defendant may still seek to win the case by
establishing a defence. They prove an additional element that enables them to
evade the rule. A defence in this sense is constituted by a new fact or set of
facts that operates to defeat a claim even if the facts supporting that claim are
true. In effect a defence operates by saying that even if all of the positive
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