Applications of the Model
In legal writing the model for organising law is used in two major ways. First,
there is no better way to introduce an account of an entire area of law than
macro analysis. Second, there is no better way to describe a legal rule than by
structuring the account by reference to the rule’s elements and consequences.
Commence by stating the elements and consequences. Then explain each
element in turn. Commence the explanation of each element by stating all the
subelements. Then proceed to describe the subelements. Finally, state and
explain the consequences.
Model for Forming Law
Introduction
Legislatures make statute law and courts make common law. Courts also make
law, but in a
restricted way, when they interpret law. These tasks are
collectively referred to here as forming law.
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Making and interpreting law are explained by a model. This model has three
steps:
(1)
Step 1: Options. Identify the options facing a legislature or court about
to make law, or a court about to interpret law.
(2)
Step 2: Reasons. Formulate reasons for legislators and courts to use as
they choose from among the options.
(3)
Step 3: Decision. Make the decision by choosing the best option as
determined by the reasoning process in Step 2.
This model guides a lawyer in any part of the process of making and
interpreting law, for example reading a case, or writing an opinion on a
question of interpretation. The discussion here demonstrates briefly how to
carry out each of these steps. There is more elaborate discussion of this model
in another text.
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Step 1: Options
First, there are the options facing a legislature or court about to make law or a
court about to interpret law. The options have two parts. Most obviously they
consist of the possible laws (statutes of common law rules) which a legislature
or court can make, or the meanings of an ambiguous provision in statute or
common law which a court has to interpret. In addition they consist of the
effect that each will cause (that is, is predicted to cause). This is the effect that
each law will cause if it is made, and the effect that each meaning will cause if it
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Christopher Enright Legal Method Chapters 4-16
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Christopher Enright Legal Method Chapters 4-16
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