individual pieces of evidence. In principle it is possible to apply some of the
rules of probability to the probabilities of the individual pieces of assessment
to assess the probability that a party’s case is true.
Step 3: Standard of Truth
In Step 2 the court has assessed the probability that each party’s case is true.
It now compares this probability to the probability required by the relevant rule
that imposes the requisite standard of proof on the party. If the plaintiff or
prosecutor has satisfied the required standard of proof they win the case. If
not, they lose.
Using Law in Transactions
Law is used in transactions. Examples of a transaction are making a will,
forming a company and transferring land. There are two major tasks in a
transaction. One consists of applying law to facts, while the other consists of
establishing facts.
Applying Law to Facts
This is also a task in litigation. As explained and illustrated above in the
context of litigation, the process of applying law to facts is a syllogism based
on the method of reasoning labelled deduction.
Establishing Facts
Parties to a transaction need to establish the necessary facts. In this task there
is both a similarity and a contrast between litigation and transactions. The
similarity is that each operation involves establishing facts. The contrast lies in
the means of establishing facts. In litigation parties seek to prove past facts by
evidence. In a transaction parties establish facts in present time by following
processes. For example a required fact for a transfer of land might be that a
vendor hands a signed transfer form for the land to the purchaser. To create
this fact, the vendor prepares the transfer form (or uses a ready made form),
fills in the detail of the land that is to be sold, signs the form then hands it to
the purchaser. In other words, in a transaction parties control the processes by
which facts are established.
Models
The propositions enunciated above enable us to develop a model for using
law, which incorporates two specific models, a model for litigation and a
model for transactions. These are explained later in the text.
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Irrationality
Ideally the part of the world inhabited by law would always function in a
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Chapter 31 Model for Using Law
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