Facts Are True
In application of law to facts the implicit requirement of the minor premise is
that the facts of the particular case are true. Facts are true in a legal sense when
they have been properly proved to the satisfaction of a court. For this
illustration it is assumed that the facts have been so proved.
Conclusion
With law the structure of the syllogism is such that the conclusion logically
flows from the premises. If facts in categories designated by Elements 1-n
cause Consequences and Facts 1-n fall into these categories, then the
conclusion is that Facts 1-n cause Consequences.
In the example the facts are “Jack has walked onto a field called Whiteacre. Jill
owns and uses Whiteacre. Jill has not said or done anything to indicate that
Jack could walk on her land. Shortly before doing this Jack had said to a
neighbour; ‘I am going to fix Jill and show her what I can do.’” The
consequences of these facts are that Jack is liable in trespass for damages and
possibly liable to be injuncted to restrain future trespass.
Interpreting Law
Introduction
Interpreting law is purposive action since it is action taken to achieve an
outcome. Consequently, it is rationally performed when done by reference to
the net benefit rule.
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This entails making the interpretation that causes the best
effect or outcome, which is the effect possessing the highest net benefit.
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In
principle, it has been argued, this is the one and only correct answer. In
practice, however, there may be debate as to which effect fits within the
category of being the best outcome.
Some jurists, however, provide an alternative and conflicting explanation of the
process of interpreting law. This view of
interpretation rests on two
assumptions. First, a legal text “contains a uniquely predetermined ‘right
answer’ to any legal problem [of interpretation] that may arise”.
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Second,
“the task of the judge is to ascertain [this]
uniquely predetermined
answer”.
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Judges do so
by a process that is essentially mechanical
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and
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Chapter 10 Policy
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Chapter 10 Policy
83
Blackshield (2002) p 322, and see Kirby (2003) in Sheard (2003) p 44,
Duncanson (1987-89)
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Blackshield (2002) p 322, and see Kirby (2003) in Sheard (2003) p 44,
Duncanson (1987-89)
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