the more logical the structure, the clearer a text will be.
101
According to Justice
Michael Kirby while the three major requirements of good legal writing are
“brevity, simplicity
102
and clarity,”
103
but “the greatest [of them all] is
clarity”.
104
This advice, which applies to all legal writing, can be aptly illustrated by
comments made with reference to judgments, that a “well structured judgment
enhances clarity and conciseness, and helps ensure that the reasoning process
is complete”.
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Consequently, a “judgment should flow logically in an
organised manner from the introduction to the conclusion”.
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Clearly, there is not one overall structure that can be used in all writing but a
range of structures. For purposes here, these structures can be classified as
dedicated overall structures, general overall structures and special structures.
A text may use one form of structure for the entire text. Or it may use two or
more of these structures in combination. It is also possible that a writer uses
structures with modification or adaption.
Dedicated Overall Structures
These structures are specific to particular disciplines. For example there is a
standard structure for writing up an experiment in psychology. For legal
writing, dedicated overall structures are directly derived from the various
models for working with law. These models consist of the models for
organising
law, forming law (making and interpreting law), and using law
(which includes the model for applying law and the model for proving
facts).
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A good illustration of how these models should be used is seen where a text is
describing legal rules (as most texts do). To portray the rules themselves, the
text should use the model for organising law. To describe issues of
interpretation the text should use the model for forming law.
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For contrasting examples see Kirby (1990) p 704. Compare the judgment of
Justice Megarry in In re Vandervell’s Trust (No 2) [1974] Ch 169 (Ch D); [1974] Ch 269
(CA) with that of Lord Denning MR in that case.
102
Klinck (1987) p 367 expresses reservations about simplicity. He argues that
it “may reflect over-simplification,” which as Kirby (1990) points out at p 704 may
fail to “convey the complexity of a legal argument”, and thus come at a price.
103
Kirby (1990) p 704
104
Kirby (1990) p 704, Gibbs (1993) p 498
105
Dessau and Wodak (2003) in Sheard (2003) p 117
106
Dessau and Wodak (2003) in Sheard (2003) p 118
107
Chapter 4 Legal Structure of a Text
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