Statute
When a legal rule is stated in a statute, it is typically not difficult to ascertain its
elements. Find the provisions of the text of the statute that define the rule.
Then every word or phrase in this provision must be accounted for.
Sometimes, perhaps often, one part of the text will state the whole the rule. At
other times it may be necessary to look at two or more provisions. (i)
Consequences may be in another provision. (ii) While one provision may state
the elements, another provision may state
additional elements by way of
defences or exceptions or provide a definition of part of the elements.
Textbooks
The text of a statute just states the elements of legal rules. A legal textbook,
however, will often contain other things besides the elements. A text may
discuss the history, policy, social operation, or effects of a rule, or highlight
difficulties about the rule in practice, to name the obvious. Hence to ascertain
the elements of a rule from a text, it is necessary to sift through the text,
separating element from non-element. In doing this, the basic test for an
element is to ask this question: Is this part of the text describing a category of
facts necessary, by their presence or absence, to invoke the operation of the
rule and its consequences?
A text may also overlook an element or not state it emphatically and clearly.
When this happens, you may have no hint of the element and be oblivious to
its existence. Or you may see or sense that it is not stated, in which case you
need to search for it in another textbook or in the relevant primary source.
General Techniques
Several techniques help to break a rule into its elements:
(1)
Isolating Consequences. Isolate the consequences. Often these are
obvious, for example imposition of punishment. Once consequences are out
of the way you know that every thing else is an element. Another advantage of
the removal of consequences is that the elements are easier to understand and
organise because you know the consequences to which they lead.
(2)
Words and Phrases in Sequence. Start by taking every word or phrase
in sequence. Think of this as a first draft.
(3)
Refine the Order. While initially you should take the words or phrases in
sequence, there are circumstances when it is easier travelling to change the
order. (This point was made in earlier discussion but is worth repeating
because it is important.) Sometimes it is just so much simpler for working
purposes to put elements or subelements into an order that is different from
their order of appearance
in the text. This is the case when one element or
subelement is dependent on another for its sense. An example is of an offence
committed where a defendant “keeps a room, office, house or other place”.
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