Relationships Between Rules
Introduction
Legal rules frequently do not operate in isolation. Instead they are in some way
connected to other rules. The major cases are where the rules are part of the
same area of law, be it a designated or established area such as criminal law or
contract, or an area of law created by some major statute on a subject. Macro
analysis of legal rules comprises the task of identifying these relationships.
There are two types of relationship between provisions - there can be a formal
relationship or a functional relationship. For both of these, the skill, such as it
is, consists of looking at the area of law and determining whether relationships
are formal or functional (or possibly a mixture), then identifying the nature of
those relationships. While this advice is meagre, generally if you look you will
find.
Formal Relationships
Contract law is the major example from common law of formal relationships.
This vast body of law is essentially performing one task. It is defining the
circumstances when one party can sue another party for breach of contract.
This said, contract law does contain some other causes of action but these are
ancillary to the main task. Two prominent examples are the action for
rescission and the action for rectification.
Functional Relationships
It is hard to make a general
statement about functional relationships because
they take many forms. But to repeat our general advice, if you look for the
relationships you will surely find them.
There is one special case of functional relationships that will serve as an
example. Where the law authorises an adjudicative decision there are four
types of law involved. Action provisions, as they are labelled here, create the
law that authorises the decision. Where the decision is made by a court this
law is referred to as a cause of action. Action provisions contain two specific
types of provision, substantive and remedial. Substantive provisions set out
the elements of a cause of action. Substantive provisions set out the elements
of, and therefore define, the wrong for which the plaintiff can sue. Remedial
provisions indicate the consequences that follow when the elements of the
cause of action are satisfied. To do this they define the remedy that seeks to
right the wrong.
The other three provisions –
establishment, jurisdictional and procedural
provisions – are ancillary because they provide for hearing the cause of action.
Institutional provisions establish the court, tribunal or office of the official who
 |
 |
 |