Resolution of the conflict between reason and rhetoric ultimately rests on how
one views legal reasoning. If legal reasoning should be totally rational, there is
no room for rhetoric. As Sir Harry Gibbs put it, the “appeal of a judgment is
to reason rather than imagination”.
33
If it is not totally rational, there may be
room for rhetoric,
34
but the question still remains as to what kind of rhetoric
and what quantity of rhetoric is appropriate.
Primacy of Information
I only ask for information.
35
While legal writing can involve functions of emotion and persuasion, the core
of it is conveying information. For the most part, then, the functions of a text
related to emotion and persuasion are not covered here, apart from what has
been said above and some passing treatment of them in the later discussion of
style.
36
Writing Law
Introduction
Legal writing involves writing a text that constitutes one of the three sources of
law. It is therefore necessary to explain the sources of law to a reader prior to
outlining how this text explains legal writing.
Sources of Law
Sources of law are conveniently classified as primary, secondary and tertiary
sources.
Primary Sources
Primary sources consist of law itself in its raw state. There are two major
types:
(1)
Statutes, which include delegated legislation and instruments made under
the statute. Legislatures, such as a parliament or congress, make or enact
statute law.
37
Trained legal drafters, sometimes called parliamentary counsel,
usually write the text of statutes.
(2)
Common law, which is found in cases. Courts make common law.
38
The judge or judges who decide the case write the judgments of courts.
___________________
33
Gibbs (1993) p 499
34
See Saunders (1994).
35
Charles Dickens David Copperfield Chapter 20 [Miss Rosa Dartle]
36
Chapter 5 Characteristics of a Text
37
For discussion of legislators see Schwartz (1978) and Bauman
(1989).
38
On differences between common law and statute law, and their
interrelation see Atiyah (1985), Burrows (1976B), Burrows (1976A), Burrows (1980),
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