Legal Method

366 Pages·1999·1.44 MB·English

by  Hanson

Legal Method
C
P
Cavendish
Publishing
Limited
London • Sydney

Legal Method
Sharon Hanson, LLB, MA
Director of the Certificate in Legal Method
Birkbeck College, University of London
C
P
Cavendish
Publishing
Limited
London • Sydney
First published in Great Britain 1999 by Cavendish Publishing Limited, The Glass House,
Wharton Street, London WC1X 9PX, United Kingdom
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e-mail: [email protected]
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© Hanson, S 1999
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, electronic, mechanical,
photocopying, recording, scanning or otherwise, except under the terms of the Copyright
Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright
Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the
permission in writing of the publisher.
Hanson, Sharon
Legal Method
1. Law – England 2. Law – Wales
I. Title
349.4’2
ISBN 1 85941 424 9
Printed and bound in Great Britain
TABLE OF CONTENTS
INTRODUCTION : HOW TO USE THIS TEXT 1
PART I THE RELATIONSHIP BETWEEN LANGUAGE,
REASONING SKILLS AND LEGAL STUDIES 5
INTRODUCTION: THE AIM OF PART 1 7
1 SKILLS REQUIRED FOR COMPETENT LEGALSTUDY 9
INTRODUCTION 9
Developing critical thinking 9
Range of skills required for legal studies and their interrelationships 11
General study skills 11
Language usage skills 12
Legal method skills 12
Substantive legal knowledge skills (for example, criminal law, tort) 12
2 THE POWER OF LANGUAGE 15
INTRODUCTION 15
THE RELATIONSHIPBETWEEN LANGUAGE, LAW AND RELIGION 15
SACRED TEXTS AND THE PROBLEM OF LANGUAGE 17
LANGUAGE AND WORLD CONSTRUCTION 19
DOES ACCENT MATTER? 20
LANGUAGE AND THE LAW 21
Precedent 21
LEGALRHETORIC 23
PART II HOW TO HANDLE PRIMARY TEXTS EFFECTIVELY 31
INTRODUCTION 33
THE COMMON LAW 34
When is a court bound by a previous case 34
Advantages of the doctrine 34
Disadvantages of the doctrine 35
The importance of accurate reporting of legal cases 35
LEGISLATION 35
Consideration of statutes and delegated legislation by the courts 35
THE LAW OF THE EUROPEAN COMMUNITY 37
CONCLUSION 38
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Legal Method
3 UNDERSTANDING STATUTES 39
INTRODUCTION 39
STATUTORYRULES: UNDERSTANDING THE STRUCTURE OF LEGAL
RULES CREATED BYPARLIAMENT’S DIRECT OR INDIRECT AUTHORITY 42
Introduction 42
THE INTERNALLAYOUT OF ASTATUTE 45
ANALYSING OF STATUTES 49
Using the language and grammar of s3 49
Connector consideration 50
Punctuation consideration 50
Subject search of sentences 50
4 UNDERSTANDING LAW REPORTS 59
INTRODUCTION 59
THE RELATIONSHIPBETWEEN LAW REPORTING AND
THE DOCTRINE OF PRECEDENT 61
THE THEORETICALDIMENSIONS OF THE DOCTRINE OF PRECEDENT 62
WHAT HAPPENS WHEN THERE IS MORE THAN ONE JUDGMENT? 65
THE DOCTRINE OF PRECEDENT IN PRACTICE 72
The case of George Mitchell v Finney Lock Seeds 78
What is the case about? 79
Finding and beginning to understand the issues in the case 81
Summary of information so far known 83
Lord Bridge’s arguments concerning issue (1), the common law issue 83
LORD BRIDGE’S SPEECH 84
STATUTORYDIVERSION 87
CASENOTING 96
5 STATUTORY INTERPRETATION: THE RELATIONSHIP BETWEEN
CASES AND STATUTES 99
TASK 100
The meaning of the word ‘ethnic’ in s3 of the Race Relations Act 1976 100
Consideration of the word ‘can’ in s1(1)(b)(i) 105
Consideration of the word ‘justifiable’ in s (1)(b)(ii) 105
6 UNDERSTANDING EUROPEAN COMMUNITY LAW 107
INTRODUCTION 107
ABRIEF GUIDE TO THE CONSTITUTIONALAND LEGALFORMATION
OF THE EUROPEAN COMMUNITYAND THE EUROPEAN UNION 107
SUPREMACYOF EUROPEAN COMMUNITYLAW 112
The European Communities Act 1972 113
Interpretation of treaties and secondary legislation by the ECJ 116
vi
Table of Contents
THE METHODS BYWHICH EUROPEAN COMMUNITYLAW BECOMES
PART OF NATIONALLEGALSYSTEMS 118
THE METHODS BYWHICH EUROPEAN COMMUNITYLAW
IS ENFORCEABLE BYINDIVIDUALCITIZENS OF MEMBER
STATES IN THEIR OWN DOMESTIC COURTS 120
7 UNDERSTANDING LAW REPORTS FROM THE EUROPEAN COURT OF JUSTICE 121
Basic layout of a European Court report 122
TASK 122
Initial observations after skim reading 122
Tabulated micro-analysis of Van Gend en Loos 125
PART III MANAGEMENT OF SECONDARY TEXTS AND ARANGE OF
DIFFERING FACTUALINFORMATION 139
INTRODUCTION: THE AIM OF PART III 141
8 SUMMARISING, ANNOTATING, LINKING AND CRITIQUING ARANGE
OF DIFFERING SECONDARY TEXTS 143
ASTRATEGYFOR COMPETENT READING 144
Practical demonstration of the strategy for reading: analysis of an article 148
9 HOW TO MANAGE ALARGE AMOUNT OF INFORMATION 157
INTRODUCTION 157
WIGMOREAN ANALYSIS – FACT MANAGEMENT 157
Level 1: the assertion to be proved is set out 159
Level 2: the relevant legal rule is split into its constituent parts 159
Level 3: the facts of the case as indicated by the evidence are placed under
the element that they substantiate 162
Level 4: the sources of the evidence supporting the facts are
noted underneath the facts 164
PART IV PUTTING IT ALLTOGETHER 171
INTRODUCTION: AIM OF PART IV 173
10 HOW TO IDENTIFY, EVALUATE, INTERPRET AND CONSTRUCT ARGUMENTS 177
PROBLEM(S) AND RULE(S) 180
What is a problem? 180
Problem solving model 183
What is a rule? 184
CONSTRUCTING ARGUMENTS 186
Argument and logic 187
Deductive argument 188
Inductive logic 191
Abduction 192
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Legal Method
11 USING PRIMARY AND SECONDARY TEXTS TO CONSTRUCT ARGUMENTS
AND ANSWER QUESTIONS 195
METHOD FOR THE PREPARATION AND CONSTRUCTION OF ESSAYS 196
Issues 200
Law reports 202
Initial challenge: how to break into the text 203
Practical exercise before moving on 205
Final consideration of the cases by reflecting on textual notes and diagrams 209
Textbook and articles 209
Breakdown and ordering of the material/essay question 212
THE DIAGRAMS 217
12 CONCLUSIONS 225
PART V APPENDICES 227
1 UNFAIR CONTRACT TERMS ACT 1977 229
2 GEORGE MITCHELL(CHESTERHALL) LTD V FINNEY LOCK SEEDS LTD 237
3 VAN GEND EN LOOS 243
4 R V SECRETARY OFSTATE FOR TRANSPORT
EX PFACTORTAME LTD AND OTHERS 253
JUDGMENT (OF THE DIVISIONALCOURT) 253
JUDGMENT (OF THE COURT OF APPEAL) 270
EUROPEAN COURT OF JUSTICE 281
Tillotson, J, European Community Law: Text, Cases and Materials, 2nd edn, 1996,
London: Cavendish Publishing, pp 56–59; 78–87; 479–82 324
5 THE EUROPEAN UNION BELONGS TO ITS CITIZENS:
THREE IMMODEST PROPOSALS 339
6 MANDLAAND ANOTHER (APPELLANTS/PLAINTIFFS) V LEE AND OTHERS
(RESPONDENTS/DEFENDANTS) (1983) 345
BIBLIOGRAPHY 351
Index 353
viii
INTRODUCTION
HOW TO USE THIS TEXT
Successful legal study depends upon holding the following skills in tension:
(a)excellent language skills;
(b)thorough knowledge of the relevant area of law;
(c) highly competent argument identification, construction and evaluation skills.
The primary focus of this legal method book will be the legal text. Texts of the law (statutes, law
reports) and texts about the law (textbooks, journals, articles) will be the objects of analysis. They
will be studied in order to understand the construction of legal rules, to acquire skills of argument
construction, analysis and critique, to appreciate links in the texts, and to use this knowledge to
solve practical and theoretical legal problems.
Too often, students are not clearly informed at the beginning of studies of the full extent of the
skills required. Even when they are informed, students seem to forget. They are too busy
memorising the obviously relevant to waste time trying to understand as well! Frequently,
memorising becomes a comfortable tranquilliser protecting the student from the productive pain
of fighting with incomprehension to reach a place of partial understanding. Sadly, within the
discipline of law, successful memorising often merely ensures failure as the student knows it all
and yet understands nothing.
The majority of books on the market that deal with method, that is, the way in which legal rules
are used to resolve certain types of disputes, do so in the context of legal process. Inevitably many
of these books tend to be weighted in favour of explicating the English legal system, its processes,
personnel and doctrines. They do not give an appreciation of how to break into texts, often tending
to veer between English legal system and legal theory, with some study skills and library usage
information.
Although this text acknowledges the complexities of legal rules and the construction of
arguments, it also attempts, in a user friendly manner, to make interrelationships clear and to allow
the commencement of the task of seeing arguments and using them.
Essentially, it is a book about thinking and the acquisition of skills and, as such, relies on reader
reflection.
My objective in producing this book was to provide a usable manual: the text draws a map to
enable students to reach a place of understanding where they can recall relevant memorised
knowledge and apply it, or interpret it confidently with a clear comprehension of the
interrelationships between rules, arguments, and language, in the search for plausible solutions to
real or imaginary problems.
This text is not a philosophical enquiry that asks why English law prefers the methods of
reasoning it has adopted. Although such texts are of the utmost importance, they will mean more
to the student who has first acquired a thorough competency in a narrow field of legal method and
practical reason. Then, a philosophical argument will be appreciated, considered, evaluated and
either accepted or rejected. Nor is this a book that critiques itself, or engages in a post-modern
reminder that what we know and see is only a chosen, constructed fragment of what may be the
truth. Although self-critique is a valid enterprise, a fragmentary understanding of ‘the whole’ is all
that can ever be grasped.
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