A significant consequence flows from the fact that a legal rule is a conditional
statement. It means that application of legal rule to facts constitutes a syllogism
for which the conditional statement constitutes the major premise. However,
discussion of this is deferred for now. It is covered in the later explanation in
this chapter of how micro analysis assists in using law in litigation and
transactions. Discussion in that context will indicate to the reader the full
significance of the syllogism involved.
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Overview
As the discussion above shows, a legal rule consists of elements and
consequences that are joined by and within a conditional statement. This
conditional statement is the major premise for the syllogism that underlies the
application of a legal rule to facts.
Each element of a legal rule delineates a type of fact that must be established to
satisfy the element – in this way an element is a necessary requirement for the
consequences to apply. Therefore, all of the elements together constitute the
necessary and sufficient requirements for the consequences to apply. In
practical language, the list of elements (which can be a hierarchy) constitutes a
checklist of the type of facts that must be found to satisfy the elements and so
bring the consequences designated by the law. This means that:
(1)
Each element must be satisfied. Even if only one element is not satisfied
the consequences do not follow.
(2)
Consequences still follow even if the facts of a case contain other facts
besides the facts needed to establish the element. Indeed they will almost
invariably do so.
Doing the Job
Introduction
To divide a legal rule into elements and consequences it is necessary to have
adequate sources of the rule. In principle, primary sources are best, being
totally reliable. While extracting the elements of a rule from the provisions of a
statute is simple enough, it is not so simple with common law. A common law
rule is made, qualified, developed, refined and interpreted in a vast number of
cases. It would be impractical to read even a significant portion of these for
day-to-day use of the rule. Hence, the better source in practice is a textbook or
similar publication, at the same time keeping in mind that even a good textbook
will not necessarily state the text of a common law rule in an uncontentious
way.
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For an explanation of a syllogism see Christopher Enright Legal Reasoning
Chapter 5 Deduction.
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