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Enright1 - Organising Law The Neglected Skill

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									                      Organising Law: The Neglected Skill

                              Christopher Enright1


Introduction
Micro Analysis
Macro Analysis
Application
Illustration
Appendix 1 Rule of Law
Appendix 2 Labels


                                  Introduction
This paper explains the important but often neglected skill of organising law, a
skill that is also referred to here as analysing law or structuring law. Law is
organised by references to structures that it naturally possesses. Knowing and
understanding these structures bring significant benefits when making,
interpreting, writing and reading law as well as when working with law in
litigation and transactions.

Law is organised on two levels:
       §     Macro analysis. This entails working out the relationships between
specific laws or rules that do either of two things. They make up an area of law,
for example, constitutional law or contract law, or they reside in the same
statute.
       §     Micro analysis. This entails identifying the three components of a
particular rule - elements, consequences and a conditional statement that links
elements to consequences. This division into elements, consequences and
conditional statement is the structure of most legal rules.2

Structuring law creates the syntax for understanding law. Or to utilise another
comparison, knowing how law is structured is similar to the string line used by
bricklayers. Just as the string line ensure that bricks are laid in the correct place,
understanding the structure of law guides lawyers for most tasks in working with
law. Structuring law at the macro and micro level is therefore necessary to
perform properly the major tasks in working with law, namely using law in


1      Christopher Enright is a chartered accountant, barrister and solicitor. He
works as a legal consultant – see www.legalskills.com.au. This article draws on his
forthcoming books, Legal Reasoning and Legal Method.
2      Christopher Enright Legal Reasoning (forthcoming) www.legalskills.com.au

                                          3
litigation and transactions (which include applying law to facts), writing law and
reading law.

Model for Organising Law
There is not really a combined model for organising law. Instead there is a
separate model for each task although it is sometimes convenient to refer to
these together as a model for organising law.

Macro Analysis
To understand macro structure it is necessary to appreciate that most legal rules
do not exist in isolation, but are legally or functionally related to some other
rules, so that together they constitute an areas of law or are part of the same
statute. For example, most of the substantive rules of contract law together
determine what agreements are recognised as legally binding contracts, and then
determine how an injured party can obtain redress if the other party does not
perform the contract.

Macro analysis, therefore, involves identifying the relationships between
individual rules in an area of law or a statute because each rule will generally
relate to one or more other rules. Macro structure gives the overall framework
and purpose of an area of law. This gives a perspective on law and makes it
easier to understand and to work with.

Micro Analysis
To understand micro analysis, we must appreciate that law is made for one
purpose, and one purpose only. Law is made to change the world. The most
obvious manifestation of this purpose is that law is made to apply to facts and
thereby bring legal consequences to the parties involved. For example, the
accused is guilty of a crime or the defendant has committed a tort.

There is, though, a qualification to this. In a few cases law provides legal
consequences to other laws rather than to facts.3 For the most part, however, we
focus here on the more common situation where law provides legal
consequences to facts. In any case, once appropriate adjustments are made, what
we say about law that applies to facts is largely relevant in those situations when
law applies to other laws.


3       The areas where law provides legal consequences for other law are
constitutional law and administrative law. This is illustrated by the doctrine of ultra
vires. (i) A statute can be outside the power of a legislature. Such a statute is not
valid. This part of constitutional law applies to statutes to determine whether they
are valid or invalid. (ii) Ultra vires will invalidate the exercise of an executive power
that is made outside the letter or spirit of the enabling statute.

                                           4
Because law regulates and thus changes the world, almost every legal rule has a
standard structure, which consists of three components – elements,
consequences and a conditional statement. These parts constitute a natural and
inevitable structure that resides in law. Consequently the task with micro
analysis is not so much to create the structure as to identify and articulate it.

This natural structure for law provides the template for the micro analysis of
law. Organising law in this way constitutes an essential part of the process of
using law in litigation and transactions. It also delivers major benefits for the
tasks of reading, writing and learning law. How it can do these things will be
better understood when the three components – elements, consequences and a
conditional statement have been analysed and explained.

Elements
To change the world a legal rule has to apply to some part of the world. This is
the task of the elements. Elements of a legal rule delineate that part of the world,
the facts, to which the legal rule applies and which it therefore regulates. To
                                                                        4
perform this task an element delineates a category or type of fact, so that the
relationship of an element to a fact that fits or satisfies the element is that of the
general to the particular. In short, an element describes a required type of fact
for the rule to apply.

Taken together the elements of a rule mark out a composite set of facts made
from a combination of the specific classes of facts designated by each of the
elements. This composite set of facts is the target for regulation by the rule. It is
the part of the world that the rule seeks to change.

Elements are labelled Element 1, Element 2, and so on. The list of elements for
any rule consists of Elements 1-n.

Consequences
While elements identify the part of the world that the rule seeks to change, the
way in which the rule directly and legally changes the world is through the
consequences it imposed on the parties when it applies to a set of facts.
Therefore, a legal rule must also state the consequences it visits upon the parties.


4       Justice McHugh expressed this in Kingston v Keprose Pty Limited (1987) 11
NSWLR 404 at 421 in the following way: “"A rule of law enacted by statute consists
of a proposition which gives rise to legal consequences when the act or omission of
some person falls within the factual outline delineated by that proposition.” His
Honour's analysis in this judgment was referred to with approval by a six person
joint judgment of the High Court in Bropho v Western Australia (1991) 171 CLR 1 at 20.

                                          5
Consequences are labelled Consequences or Consequences 1-n (when it is
necessary to indicate or emphasise that there are multiple consequences or a
single consequence with several parts).

Conditional Statement
So far the legal rule has two components, elements that identify the facts to
which it applies and consequences that prescribe how it will change the position
of the parties to a case when the rule applies to them. To ensure the operation of
the rule, something has to impose these consequences on the facts. This is done
by framing the rule as a conditional statement. It takes the following form: if
facts occur that fall within the classes of facts delineated by the elements, the
consequences designated by the rule apply to those facts.

Comparison
Organising law in these two ways can be compared to learning a city. One
would start by learning the major roads. This greatly helps understanding
because once the major roads are known one can learn other streets in relation to
these. This is macro analysis. In working with law, macro analysis presents an
overview of a subject - it shows how it hangs together and thus provides a frame
of reference for the specific rules in the subject, which are subjected to micro
analysis

Having learnt the major roads, one learns the ordinary streets, which is like
micro analysis. So just as one looks at specific streets to become more familiar
with a strange city, in micro analysis one works with the specific legal rules that
constitute an area of law.

Philosopher’s Stone
Even if it is a little exaggerated it is still not inappropriate to refer to the
techniques for organising law as the legal equivalent of the philosopher’s stone.
Obviously, they do not convert base metals into gold; instead they convert
disorganised legal text into structured and coherent legal rules that enable those
who work with the rules to use them in a systematic and effective way.

Outline
The remainder of this paper explains the nature of and techniques for micro
analysis and macro analysis in turn. Then it reveals the purpose of organising
law in these ways by showing the various applications of these techniques. It
concludes with an illustration of both micro and macro analysis.




                                        6
                                 Micro Analysis
                                   Introduction
Micro organisation or micro analysis involves looking at one law or rule within
an area of law. This analysis is ultimately determined by one fundamental
principle: law regulates and thus changes the world. Because of this, with minor
exceptions5 every legal rule has a natural and inevitable structure, which consists
of three components – elements, consequences and a conditional statement:
       #      Elements: A legal rules contains elements. An element depicts a
type or category of facts. Taken together the elements depict the overall
category of facts to which a rule applies. Elements are labelled Element 1,
Element 2 and so on, the range of elements for any rule thus being Elements 1-n.
The elements conveniently constitute a checklist for checking the legal rule
against a set of facts to determine if it applies to them.
       #      Consequences: A legal rules contains the consequences that apply
to the parties involved when each of these elements is satisfied by the facts in a
particular case. For example, when a rule of criminal law applies the defendant
is guilty of a crime and is liable to punishment. When a rule of tort law applies
the defendant is liable to pay damages to compensate the plaintiff for their
injury. Consequences are labelled Consequences 1-n or just Consequences.
       #      Conditional Statement: Syntactically a legal rule is constituted as a
conditional statement that links elements and consequences. The essence of a
conditional statement is that when a specified condition occurs, something else
also occurs. For example, if it rains, the ground becomes wet. In a legal rule the
conditional statement provides that if facts in a case satisfy each element of the
legal rule, the consequences designated by the rule apply to those facts.

All of this can conveniently be represented by a diagram. There is a list of
elements and a list of consequences. There is an arrow between the elements and
consequences indicating the conditional nature of a legal rule in that the
consequences are conditional on the elements being satisfied by appropriate
facts:

        Elements
        Element 1
        Element 2
        Element n


5      It is, however possible, for a provision in a statute to apply to a specific person
or body or situation rather than a class of facts. An obvious example is a provision
that establishes a body. In this case the rule will just have consequences and no
elements. This provision will take a form such as this: “This section now established
a corporation named the Schools Commission.” Another example is an Act of
Attainder. This is discussd in Appendix 1 to this paper.

                                            7
               ↓
       Consequence
       Consequence 1
       Consequence 2
       Consequence n
       Figure 1 Structure of a Legal Rule

The analysis of a legal rule and the facts to which it applies can be conveniently
set out in an expanded version of this diagram. This depicts Facts 1-n which
satisfy Elements 1-n because Fact 1 satisfies Element 1, Fact 2 satisfies Element
2 and so on. The relationship of a fact satisfying an element is also expressed as
the notion that the element applies to the facts. Both of these relationships are
depicted by the arrow from the heading “Facts” to the heading “Elements”:

      Elements             ← Facts
      Element 1                 Fact 1
      Element 2                 Fact 2
      Element n                 Fact n
               ↓
      Consequences
      Consequence 1
      Consequence 2
      Consequence n
      Figure 2 Elements, Consequences and Facts

                                      Elements
Introduction
Elements define the facts to which a rule applies. Elements also have
components generically called subelements. Subelements themselves may
further divide into various levels of sub-subelements. There will be as many
divisions of the elements of a rule into subelements as it takes to capture the
entire legal rule. Because these subdivisions of elements are possible the part of
a legal rule constituted by elements potentially has a hierarchical structure.

Nature of Elements
Since a rule is seeking to change the world, it has to identify and attach itself to
the part of the world that it will change. It has to mark out the events,
happenings, incidents, or transactions that it wants to affect. Lawyers call these
facts. A rule, therefore, has to designate a class or category of facts as the target
of its regulation.

A legal rule identifies these classes of facts by its elements. Each element
consists of a required fact. It delineates a specific class or type of fact. Elements


                                            8
in a legal rule are for purposes here labelled Element 1, Element 2 and so on.
Consequently, the range of elements for any rule consists of Elements 1-n.

Several consequences flow from the principle that an element delineates a class
of fact.
(1) Application of Law to Fact. An element applies to a fact when the fact
falls within the class that the element delineates. For example one of the
elements of trespass is that there is “land”. If the plaintiff has a house on a block
of land at 16 High St Smallville the element “land” applies. Lawyers often
express this in an alternative form by saying that the fact “satisfies” the element.
Clearly this involves the relationship of the general to the particular. An element
of a rule describes a general case while facts that come within an element are
specific instances of the general case.
(2) Facts to Which the Rule Applies. Taken together the elements identify the
facts to which the rule will apply.6 Therefore a rule applies to a set of facts when
each element is satisfied by some fact within the set. Put in another way, a rule
applies to a set of facts only when the set of facts contains facts falling within
each of the categories delineated by the elements. A fact that satisfies an element
(or subelement) is variously called a material fact, a relevant fact or an essential
fact. (In using law, facts are established by two means. In litigation facts are
proved by evidence, while in transactions facts are created by processes.7)
(3) Check List. Elements together constitute a checklist to be used when
seeking to apply law to facts because each element must be satisfied for the rule
to apply.

We can illustrate elements with the tort of trespass to land. It has six elements:

   Element (1) Land             There is land.
   Element (2) Possession                    as      ht     os
                                The plaintiffh a ri g to p sess th lae nd.
   Element (3) Interference     The defendant interferes with this land.
   Element (4) Intention        The interference is intentional.
   Element (5) Permission                                               ’s e i
                                The interference is without the plaintiff p rm ssi on.
   Element (6) Defences         There are no defences available to the defendant.
                                Figure 3 Elements of Trespass




6       To illustrate this, assume that a legal rule has four elements. Element 1
delineates a class of facts that we can label Class 1, Element 2 delineates a class
labelled Class 2 and so on for Elements 3 and 4. Thus the rule with Elements 1-4 will
apply to a set of facts when it contains a fact that falls within Class 1, a fact that falls
within Class 2, a fact that falls within Class 3 and a fact that falls within Class 4. That
the set of facts contains other facts in no way affects this outcome.
7       Christopher Enright Legal Method (forthcoming) www.legalskills.com.au

                                             9
To emphasise the nature of an element, take Element (1) Land as an example.
This is a category of fact because it refers to an indeterminate parcel of land. It
does not specify any particular block (or blocks) of land, it can be any block –
your house, my house, the houses next door, the houses in the next street, the
houses in neighbouring suburbs and so on across the face of the earth. Any land
will do to satisfy the element.

Nature of Subelements
It is possible that an element of a rule has parts or even sub parts. Conveniently,
the parts of an element can be designated as subelements. Subelements
themselves can be further divided into sub-subelements, sub-subelements, sub-
sub-subelements, and so on. It is necessary to subdivide an element into as many
levels of sub elements as is required to portray accurately and comprehensively
the structure and content of the element. When one or more elements of a rule
have parts the organisation of the rule becomes not just a list but a hierarchy
composed of the elements along with the various levels of subelements.

Where an element has parts and subparts it is a clumsy although accurate to
describe the first division of parts as subelements, the second as sub-
subelements, the third as sub-sub-subelements, and so on in this way until all the
dividing is done. There are, however, two simpler ways of referring to these.
First, no matter what their level they can be described just as subelements.
Second, where the various levels of sub parts can be numbered within a
hierarchical numbering system, as in the example below, they can be referred to
as elements with their number designating their level in the hierarchy. So, sub-
subelement 1.2.1 can be referred to simply as Element 1.2.1 because the
numbering system makes clear its place in the hierarchy.

Illustration
When dividing a rule into its subelements it is necessary to proceed until all the
relevant provisions of the rule are covered. In abstract form, the division of a
rule into elements and subelements is illustrated by the following hypothetical
example that focuses on the subdivision of just one element, Element 2 of a rule
that has three elements, Elements 1-3:

      Law
    Element 1

    Element 2
    Element 2.1
                              Element 2.1.1
                                               Element 2.1.1.1
                                               Element 2.1.1.2
                              Element 2.1.2


                                        10
                                Element 2.1.3
     Element 2.2
     Element 2.3
     Element 2.4

     Element 3
                              Figure 4 Subelements

Explanation
When Element 2.1.1.1 and Element 2.1.1.2 are satisfied, the outcome is that
Element 2.1.1 is satisfied. When Element 2.1.1, Element 2.1.2 and Element 2.1.3
are satisfied, Element 2.1 is satisfied. When Element 2.1, Element 2.2, Element
2.3 and Element 2.4 are satisfied, the outcome is that Element 2 is satisfied.
When Elements 1, 2 and 3 are satisfied the consequences of the law, whatever
they may be, apply to the parties involved.

Property
Where elements of an action delineate a property interest they should do so by
reference to a standard form that all property interests possess.8 This is
constituted by three components:
(1) There is a person, the holder.
(2) This person (the holder) has a legally recognised interest.
(3) The person has this interest in a subject, which is either tangible or
intangible.9

To illustrate the three components of property we will consider two examples -
(i) Mary owns a house and (ii) John hires a speedboat. In these examples:
(1) The holders of the interests are Mary in the first case and John in the
second case.
(2) The legally recognised interests are ownership in the first case and hiring
in the second.
(3) The subject of that interest is a house in the first case, and a speedboat in
the second.




8      Christopher Enright “A Model for Analysing Property” (forthcoming)
www.legalskills.com.au
9      To avoid misunderstanding we point out that the term "property" can mean
any of three things – (i) the legally recognised interest, (ii) the thing in which the
person has the legally recognised interest, or (iii) these two items combined, that is,
the legally recognised interest and the thing in which the person has the interest.
Usually the context will make it clear which of the three meanings is intended.

                                          11
This model can also illustrate a transfer of property. Take the case of Thelma
and Louise. Thelma owns a motor car. Louise wants to use the car. Thelma,
therefore, leases the car to Louise. This transaction can be represented by the
following diagram that shows the positions of the parties both before and after
the lease:

     Holder          Thelma               Louise
          ↓
     Interest        Before Lease
                     Ownership            No Interest
                     Possession           No Possession

                          e
                     A er L ase
                     Lessor               Lessee
                     No Possession        Possession
         ↓
     Subject         Motor Vehicle         Motor Vehicle
        Figure 5 Illustration of a Transfer of Property by Lease

                               Consequences
Elements of a rule identify the part of the world that the rule seeks to change.
Consequences of a rule prescribe the way in which the rule directly and legally
changes the world. The legal rule imposes these consequences on the parties
when it applies to a set of facts. Consequences are labelled Consequences or
Consequences 1-n (when it is necessary to indicate or emphasise that there are
multiple consequences or a single consequences with components).

Consequences are whatever the particular law designates and can vary from law
to law. For example the consequences to which rules of criminal law apply
consist of punishment in the form of imprisonment or a fine, while the standard
consequence for a tort or civil wrong is an award of monetary damages to the
plaintiff.

To illustrate legal consequences, let us use the common case where the law
creates a criminal offence. Assume that Shane has hit a pedestrian while driving
her motorcar. Assume further that a provision in the Motor Traffic Act creates a
criminal offence of driving in a manner dangerous to the public and imposes as
punishment a fine of $5,000 or two years in jail. If this provision applies, the
direct legal consequence is that Shane is guilty of the offence. A further
consequence follows because Shane is guilty – she is liable to be punished by a
fine of $5,000 or two years in jail.




                                            12
It is also possible that the pedestrian whom Shane injured sues Shane for
negligence to obtain compensation for injuries suffered. If the pedestrian
succeeds in this action the consequences are that Shane will be ordered by the
court to pay monetary damages to the pedestrian.

Consequences are also divided into elements and subelements as shown in
Figures 1 and 2 above. Elements of consequences are represented in the model
by Consequences 1-n. Consequences need elements for two reasons. First, there
may be more than one remedy. For example, a successful plaintiff in trespass
can obtain both damages and an injunction. Second, any particular remedy can
be divided into parts. An example is the remedy of damages, because there are
various heads of damage, each of which becomes an element. Each head of
damage is calculated as lump sum of money. All the heads of damages taken
together become the total amount of damages, which constitute the full
Consequences with regard to damages.

While consequences are also divided into elements and subelements, sometimes
these are not revealed or fully revealed in description or diagrams. As a form of
shorthand, this paper may refer just to Consequences, rather than to
Consequences 1-n. This is done to save space and not to contradict the principle
that consequences have elements.

                             Conditional Statement
Elements of a legal rule delineate the facts to which the rule applies.
Consequences of a legal rule determine how the rule will legally and directly
affect the parties when it applies. It is, however, necessary for the rule to have a
mechanism for imposing these consequences. This is done by framing the rule
as a conditional statement. By this means the elements and consequences are
embedded in a conditional statement that imposes the consequences on the types
of facts that are designated by the elements.

A conditional statement is also referred to just as a conditional or as a
hypothetical statement. The essence of a conditional statement is that when a
specified condition occurs, something else also occurs. It takes the form “If A
then B.” For example: “If it rains, the ground becomes wet”.

In a legal rule the conditional statement takes the following essential form: If
facts occur that fall within the classes of facts delineated by the elements, the
consequences designated by the rule apply to those facts. This conditional
statement can also be framed using our standard labelling system for elements
and consequences the statement. There the elements are labelled Elements 1-n
and facts that fall within Elements 1-n are labelled Facts 1-n, so that Fact 1 falls
within Element 1, Fact 2 within Element 2 and so on. Framed in this form the


                                        13
conditional statement takes the following form: “If a set of facts contains Facts
1-n, being the facts which fall within the categories delineated by Elements 1-n,
then Consequences apply to those facts.”

A significant consequence flows from the fact that a legal rule is a conditional
statement. Application of legal rule to facts constitutes a syllogism for which the
conditional statement constitutes the major premise.10 However, discussion of
this is deferred for now. It is covered in the later explanation of how micro
analysis assists in using law in litigation and transactions. Discussion in that
context will indicate to the reader the full significance of the syllogism involved.

                                      Overview
As the discussion above shows, a legal rule consists of elements and
consequences that are joined by or within a conditional statement. This
conditional statement is the major premise for the syllogism that underlies the
application of a legal rule to facts.

Each element of a legal rule delineates a type of fact that must be established to
satisfy the element – in this way an element is a necessary requirement for the
consequences to apply. Therefore, all of the elements together constitute the
necessary and sufficient requirements for the consequences to apply. In practical
language, the list of elements (which can be a hierarchy) constitutes a checklist
of the type of facts that must be found to satisfy the elements and so bring the
consequences designated by the law. This means that:
(1) Each element must be satisfied. Even if only one element is not satisfied
the consequences do not follow.
(2) Consequences still follow even if the facts of a case contain other facts
besides the facts needed to establish the element. Indeed they will almost
invariably do so.

                                 Doing the Job
Introduction
To divide a legal rule into elements and consequences it is necessary to have
adequate sources of the rule. In principle, primary sources are best, being totally
reliable. While extracting the elements of a rule from the provisions of a statute
is simple enough, it is not so simple with common law. A common law rule is
made, qualified, developed, refined and interpreted in a vast number of cases. It
would be impractical to read these for day-to-day use of the rule. Hence, the
better source in practice is a textbook or similar publication, at the same time



10     For an explanation of a syllogism see Christopher Enright Legal Reasoning
(forthcoming) www.legalskills.com.au

                                        14
keeping in mind that even a good textbook will not necessarily fully or
uncontentiously state the text of common law rules.

Statute
When a legal rule is stated in a statute, it is typically not difficult to ascertain its
elements. Find the provisions of the text of the statute that define the rule. Then
every word or phrase in this provision must be accounted for.

Sometimes, perhaps often, one part of the text will state the whole the rule. At
other times it may be necessary to look at two or more provisions. (i)
Consequences may be in another provision. (ii) While one provision may state
the elements, another provision may state additional elements by way of
defences or exceptions or provide a definition of part of the elements.

Textbooks
The text of a statute typically just states the elements of legal rules. A legal
textbook, however, will often contain other things besides the elements. A text
may discuss the history, policy, social operation, or effects of a rule, or highlight
difficulties about the rule in practice, to name the obvious. Hence to ascertain
the elements of a rule from a text, it is necessary to sift through the text,
separating element from non-element. In doing this, the basic test for an element
is to ask this question: Is this part of the text describing a category of facts
necessary, by their presence or absence, to invoke the operation of the rule and
its consequences?

A text may also overlook an element or not state it emphatically and clearly.
When this happens, you may have no hint of and be oblivious to the element’s
existence. Or you may see or sense that it is not stated, in which case you need
to search for it in another textbook or in the relevant primary source.

General Techniques
Several techniques help to break a rule into its elements:
(1) Isolate the consequences. Often these are obvious, for example imposition
of punishment. Once consequences are out of the way you know that every thing
else is an element. Another advantage of the removal of consequences is that the
elements are easier to understand and organise because you know the
consequences to which they lead.
(2) Start by taking every word or phrase in sequence. Think of this as a first
rough draft.
(3) While initially you should take the words or phrases in sequence, there are
circumstances when it is easier travelling to change the order. Sometimes it is
just so much simpler for working purposes to put elements or subelements into
an order that is different from their order of appearance in the text. An example


                                          15
is of an offence committed where a defendant “keeps a room, office, house or
other place.” Taken in the natural order, these elements are (i) “keeps” and (ii)
“room, office, house or other place.” However, it is easier travelling to first
identify a possible “room, office, house or other place” then to see if the
defendant “keeps” it. By contrast, identifying these elements in the reverse order
to this makes the task of applying law to facts unnecessarily difficult.
(4) Make the elements and subelements as small as possible. The smaller they
are, the easier they are to work with. Think of bite-sized pieces.
(5) An element may consist of a number of possibilities. In the example
above, an element is that the defendant keeps “a room, office, house or other
place” for betting. Here “room,” “office,” “house,” and “other place” are four
possibilities. The defendant has to “keep” only one of them. So, make this clear
when stating the element.
(6) There is a special case where a rule is in the form “No person shall do X”.
A rule in this form can be restated in an alternative form that has an identical
meaning: “If a person does X, the person commits an offence.” There is an
advantage in conceiving the rule in the second rather than the first form, because
the second form clearly displays the consequences while the first one does not.

                                 Illustration
We can illustrate micro organisation of law by the tort of trespass to land. A
textbook describing trespass might say something like this:

  A defendant commits trespass when they intentionally interfere with land to
                      as     ht f os       n f e l i t     d e          it o
  which the plaintiffh a ri g o p sessi o o th p a n iffan do s so w h ut th        e
          ’s e i      n.            l e              bt   am         nd a
  plaintiff p r m ssi o A suc cessfu d f endant can o ai n d a ges a m y, a th   t e
  court’s discretion, be awarded an injunction. While trespass protects land from
                                      n    s       nd n e                    c de
  unlawful invasion, land is not confi ed ju t to la o th sur face. It al so in l u s
                                                                              x r
  some claim to the air space above the surface, some claim to the subsoil, fit u es
                                 cien     xed      e    )        ssi
  (which consist of any items suffi t l y affi t o th land anda po bl e c laimt o
  the middle of an adjacent stream or road. Land can also exist as strata. There are
  several defences to trespass.

This account is incomplete and selective but it is enough to illustrate the task. It
indicates that trespass has six elements, which in point form consist of land,
possession, interference, intention, permission and defences.11 There are two


11     In law, the term defence has two related meanings. A person may defend a
charge or action on the facts by putting forward evidence that indicates that one of
the material facts (a fact that satisfies an element) is not correct. (ii) In the sense in
which it is used here, a defence means a legal defence. For example, if a plaintiff has
established the other five elements of trespass, a defendant can escape liability by
raising one of the defences such as necessity or statute. For example, the defendant

                                           16
consequences, damages and injunction. When elaborated and organised these
elements and consequences are as follows:

 Elements
 Element (1) Land.             There is a piece of land.
 Element (2) Possession.                     as      ht  os
                               The plaintiffh a ri g to p sess th lae nd.
 Element (3) Interference.     The defendant interferes with the land.
 Element (4) Intention.        The interference was intentional.
 Element (5) Permission.                                              ’s e i
                               The interfered was without the plaintiff p rm ssi on.
 Element (6) Defences.         The defendant cannot rely on one of the several
                               defences to trespass.
            ↓
 Consequences
 Consequence (1) Damages      Damages are awarded:
                              (i) To compensate for the interference itself.
                              (ii) To compensate for any actual damage to the land.
 Consequence (2) Injunction An injunction is a court order that restrains future
                              trespasses by the plaintiff.
                 Figure 6 Trespass to Land: Elements and Consequences

Now, to illustrate the division of an element into its subelements, the element
"land" in the tort of trespass can be subdivided as follows:

  1. Land
  Land may be either of the following:
  (1) Surface. One legal form of land is land on the surface of the earth. This is
                   n
  extended or defi ed b  y:
       A. Air space. Air space is something that is above land.
       B. Sub-soil. Sub-soil is something that is below land.
       C. Middle line. Land can extend to the middle line of adjacent roads or water,
  something that is beside land.12


may be an inspector from the agriculture department and there is a statute that
authorises them to enter land to inspect for diseased animals.
12     This happens because of the rule known generically as the medium filum
(middle line) rule or the usque ad medium filum (as far as the middle line) rule (and
sometimes the usque is omitted). It applies to both land, when it is labelled ad medium
filum viae rule (middle line of the road) and non tidal streams, when it is labelled the
medium filum aquae rule (middle line of the water). It applies when the following
requirements are satisfied. (i) Land is described in a conveyance or transfer as
bounded by a non-tidal stream or road. (ii) The grantor or vendor is the owner of the
bed of the stream or the road at the time of the grant or sale. In this case the grantee
or purchaser is assumed to have received the grant or transfer of the property to the
middle of the road or the stream. See, for example, Mary Lord v Commissioners for the

                                          17
       D. Fixtures. Fixtures are something that is a ache d to land.
  (2) Strata. Land as strata comes in two forms:
       A. Common law. Title to strata can be conferred under common law.
       B. Statute. Title to strata can be conferred under statute.
                                  Figure 7 Subelements of Land

                               Macro Analysis
                                  Introduction
Macro analysis is generally done when one first encounters an area of law such
as tort, criminal law, contract or property. It involves looking at the big picture
or the overall shape, boundaries and structure of a subject or statute. It entails
finding any relationship that exists between each rule and any other rule within
an area of law or within the same statute.

In presenting the big picture, macro analysis makes learning an area of law
much easier than it would otherwise be. It gives a framework or structure that
allows you to determine relationships between rules. This is beneficial because
understanding and remembering are both enhanced when one knows the
relationship between items.

There are two types of relationship between provisions. There can be a formal
relationship or a functional relationship.

                            Formal Relationships
Introduction
As we saw in discussion of micro analysis, some rules can be divided into
elements and various levels of subelements that formed a hierarchy which
constituted the rule. Elements and subelements in this hierarchy are formally
related because each level within an element constitutes an element or
subelement of the level above it. For example, Elements 2.1.1-2.1.n together
constitute Element 2.1.

Micro analysis is typically directed at individual legal rules to facilitate
operations with them. However, there are some areas of law which from the
perspective of micro analysis, are constituted by one infernally large legal rule.
This is the case because each component is linked as part of a hierarchy of
elements and subelements.

A major example of this is the branch of common law labelled contract law. Its
main function is to create one cause of action namely an action for breach of

City of Sydney (1859) ER 991 and Berridge v Ward (1861) 10 CB (NS) 400; 30 LJCP 218;
25 JP 695; 7 Jur NS 876; 142 ER 507.

                                        18
contract. To explain this to the reader, the text will present an outline of contract
law. Contract law is divided into five main parts. These are negotiation of the
contract, formation of the contract, definition of the contract (by reference to its
terms and parties), termination of the contract, and other remedies (that is, non
contractual remedies arising from the actual or possible contract).

Negotiation
Before a contract is made there will often be negotiation. Negotiation may or
may not lead to a contract, but in either event what is said or written in
negotiation may well have legal consequences. These consequences may come
from contract law itself, or may involve another area of law.

The statements that are most likely to generate disputes are statements with two
characteristics. (i) The statement relates to the quality of goods or services that
are the subject of the contract. (ii) The statement is untrue. Possible
consequences of these statements can be divided into two classes.

First, there may be consequences relating to the main contract. These include the
following possibilities:
(1) The statement is a contractual misrepresentation. This is typically
considered in the discussion of consent.
(2) The statement constitutes common mistake or unilateral mistake for the
subsequent contract. This is typically considered in the discussion of consent.
(3) The statement becomes a term of the main contract and is not, therefore,
just huffing or a mere representation. This is typically considered in the
discussion of the terms of a contract (which is part of defining the contract).
(4) The statement constitutes an express or implied notification, by a
purchaser, of the purpose for which goods and services are required. Such a
statement may trigger the insertion in the contract of a statutory term that the
goods13 or services14 are fit for that purpose. This is typically considered in the
discussion of the terms of a contract.15



13       The Australian provisions performing these functions are Trade Practices Act
1974 (Cth) s71, along with the equivalent provisions in the sale of goods legislation in
the states and territories - Sale of Goods Act 1923 (NSW) s 19, Sale of Goods Act 1896
(Qld) s 17, Sale of Goods Act 1895 (SA) s 14, Sale of Goods Act 1896 (Tas) s 19, Goods Act
1958 (Vic) s 19, Sale of Goods Act 1895 (WA) s 14, Sale of Goods Act 1954 (ACT) s 18, Sale
of Goods Act 1972 (NT) s 19. These statutory provisions codify the common law.
14       See, for example, Trade Practices Act 1974 (Cth) s 74
15       Note that under s 74B of the Trade Practices Act 1974 (Cth) the statement may
also found a statutory action against the manufacturer based on the goods not being
fit for the purpose.

                                           19
(5) The statement may be significant only in that it does not have contractual
or other legal consequences. For example is may be just huffing or an invitation
to treat and consequently not an offer. This is typically considered in the
discussion of formation of agreement.

Second, the statement may have some other remedial consequence besides the
main contract. For example it may give rise to an action in tort for negligence or
deceit. These other remedial consequences constitute the final part of this
analysis of contract.

Formation
There are seven elements necessary for a legal contract. These divide into two
classes. First, there are five elements that form a binding contract:
(1) Agreement. The parties must agree on the terms.
(2) Consideration. Each party must promise something.
(3) Intention to create legal relations. Parties must intend that their agreement
has legal effect as distinct from being a mere understanding or social
arrangement.
(4) Formalities. Any formalities for making the contract must have been
observed. There is no general requirement at common law for formalities that
apply to contracts. Consequently, any formality to be observed for a particular
type of contract must be laid down in statute.
(5) Capacity. Each party to the contract must have legal capacity to make the
contract.

Second, there are two elements, consent and lack of both voidness and illegality,
which are necessary so that an otherwise binding contract cannot be set aside:
(1) Consent. Parties consent to the contract when they make the agreement.
This consent must be given knowingly and willingly in the eyes of the law.
Therefore a contact can be set aside if the consent that is given is flawed because
it is given with (i) a lack of proper knowledge caused by misrepresentation or
mistake, or (ii) a lack of proper willingness induced by duress, undue influence
or unconscionable conduct.
(2) Lack of voidness and illegality. There must not be common law or
statutory provisions that make the contract void or illegal.

These vitiating factors may, according to conventional analysis, result in the
contract being either void or voidable. Where the lack of consent renders the
contract merely voidable a party must bring proceedings (for example for
rescission) to avoid and therefore nullify the contract.




                                        20
Definition
Once a contract is made it is necessary to define it, that is, to identify its
components. There are, in fact, two possible contracts to consider. There is the
main contract, but there is also the possibility of a collateral contract that
operates in addition to the main contract.

A contract is identified or defined by the parties and the terms:
(1) Parties. Parties to the contract are those who agree to it. There is a basic
principle about parties called the doctrine of privity. It provides as a general rule
that only those who are party to the contract can sue and be sued on it. Identity
of the parties may be affected by such matters as agency, assignment and
novation of the contract.
(2) Terms. Terms of the contract may be (i) express terms, that is those
specifically agreed on by the parties, (ii) implied terms, that is terms implied by
the courts or (iii) statutory terms, that is terms imposed on the contract by
statute.

Termination
Once made the contract may come to an end in any of three ways:
(1) Each party performs their side of the agreement. In this case each party
gets what they bargained for.
(2) There is a breach of contract. One party does not perform, that is they do
not carry out their promises. In this case the wronged party can take action; if
the breach is major (breach of a condition) they can terminate the contract and
sue for damages, while if the breach if less than major (breach of a warranty)
they cannot terminate but they can sue for damages. This, it is worth saying, is
the whole point to contract law. It compels a party to keep their promises or to
pay the consequences.
(3) The contract may cease in any of several ways that do not involve
performance or breach, for example the contract may be frustrated, or be
discharged by operation of a term of the contract.

Other Remedies
A contract or an attempted contract may generate other remedies besides
contractual remedies based on the main contract. These remedies can
conveniently be placed into two categories.

First, some of these remedies arise because of things said or done in the course
of negotiating the contract. These remedies can arise when a statement made in
the course of negotiating has criminal or civil consequences or both. For
example, a false statement made in negotiation may be actionable in tort for
negligent misrepresentation or deceit.



                                         21
Second, there may be an action that does not depend on things said or done in
the course of negotiation. An example is a statutory action against a
manufacturer or importer of defective goods under Div 2A of Pt V of the Trade
Practices Act 1974 (Cth). The basis of the action is that goods supplied to a
consumer are in some way defective.

                         Functional Relationships
Introduction
There is a functional relationship between two rules when the consequences of
Rule A and the consequences of Rule B bear some relationship. We can
illustrate this by dividing these rules into elements and consequences:

            Rule A                             Rule B
            Element A1                         Element B1
            Element A2                         Element B2
            Element An                         Element Bn
                   ↓                                  ↓
            Consequence A            ↔         Consequence B
                                Relationship
                      Figure 8 Functional Relationship

If Rule A is related to Rule B there is a relationship between the consequences
of Rule A and Rule B, that is, between Consequences A and Consequences B.
To find this relationship it is necessary to examine the consequence of each rule
and ask yourself how the consequence of this rule relates to the consequences of
any other rule. There are two situations to consider. First, in some cases there
are standard relationships involved so that, if you know this, you know the
nature of the relationship. Second in other cases the relationship is not standard
but special. In these cases you must examine and analyse the consequences of
the rules involved to determine the nature of any relationship involved.

Standard Relationships
Introduction
Some types of provisions have standard consequences and, because of this, have
standard relationships between the provisions. These relationships and
consequences are standard because the relationship is fundamentally the same
regardless of the area of law involved. Only the details change from area to area,
not the basic form of the relationship. Examples considered here are litigious
provisions, regulatory provisions and the law of wrongs.

Litigious Provisions
There are four types of litigious law – action provisions, establishment
provisions, jurisdictional provisions and procedural provisions. Action


                                         22
provisions are the main provisions since they can alter the legal position of a
party. The other three – establishment, jurisdictional and procedural provisions –
are ancillary because they provide for hearing the cause of action. These types of
law are related in the following way:
(1) Action Provisions. Action provisions are central because they create a
cause of action. Action provisions have both substantive and remedial
provisions, which together create the cause of action. Like most other rules these
divide into elements and consequences. (i) Elements of a cause of action are
referred to as substantive law or substantive provisions. This is because they
define the wrong that the defendant has done to the plaintiff and for which the
plaintiff can sue. (ii) Consequences of a cause of action are referred to as
remedial law or remedial provisions. This is because they grant and define the
remedy for the plaintiff. They state the means by which the wrong done to the
plaintiff can be righted.
(2) Establishment Provisions. Establishment provisions establish the court,
tribunal or office of the official that hears the case.
(3) Jurisdictional Provisions. Jurisdictional provisions authorise a court,
tribunal or official to hear the case. Therefore they tell a party which court or
tribunal or official can hear the cause of action.
(4) Procedural Provisions. Procedural provisions set down the rules for
bringing and hearing the cause of action.

Regulatory Provisions
Regulatory statutes commonly have two related types of provisions. One set of
provisions authorises an official to allow an activity. For example, an official is
authorised to issue a licence or permit to perform the activity. Frequently the
official has power to control how the licence is exercised by attaching conditions
to it and by revoking it. The second set of provisions makes it a criminal offence
to carry on that activity without a proper licence, or in breach of any conditions
attached to the licence.

In combination the two sets of provisions regulate the particular activity. A
person cannot do it without a licence. Therefore if they want to do it they must
apply for and obtain a licence. If they obtain the licence, they can perform the
activity only in accordance with the terms of the licence.

Law of Wrongs
The law of wrongs - torts and criminal law being the two general areas - consist
of a number of individual actions or remedies that are discrete. They protect the
citizen and the state from a variety of injury to their interests. Hence, there is a
very obvious functional relationship, namely the range of interests that they
protect. Obvious examples of these interests are protection of institutions,
persons, property, commerce, contracts and reputation. Together, the individual


                                        23
rules in these areas of law provide a protective cover for society against these
wrongs.

Non Standard Relationships
Introduction
Some functional relationships are not standard but instead are special to the area
of law involved. In these cases it is necessary to examine the consequences of
the laws involved to determine the nature of any relationship involved. While it
is not possible to offer any more general advice than this, if you look for a
relationship you should easily find it. To illustrate these relationships we will
look at two areas of law, corporations law and agency law.

Corporations Law
Corporations law (or company law) is a disparate area of law. It centres on an
artificial legal person called a corporation. It focuses on the formation, powers,
procedures, duties, financing, management and operation of the corporation. It
largely involves the relationship of the corporations, directly or indirectly, to
two classes of persons.

One class consists of persons who are in some way within or connected to the
corporation. These are promoters, shareholders, directors, agents, officers and
employees. The other class consists of persons who are outside of the company.
Examples are government and private regulators, auditors, debt-holders,
customers and suppliers. Corporations law is the collection of principles that
regulate these relationships as regard the entity that is the corporation.

Agency Law
Agency law consists of two sets of rules. The basic rules determine the
necessary conditions for one person, the principal, to transfer their legal
authority to a second person, the agent, with the consequence that the agent can
exercise the principal’s legal authority and bind the principal in relation to a
third party. Hence, the agent can deal with a third party and bind the principal.
In addition to this basic rule, some ancillary rules determine other rights and
liabilities among the various parties, that is, the principal, the agent and any third
party.

                                  Application
                                 Introduction
Although the skill of organising law is often neglected in law schools, it is vital
for performing a number of tasks. Its benefit for these tasks should be apparent
now even to a beginning law student, and will certainly become abundantly
clear as the student progresses more with their study.



                                         24
                                  Macro Analysis
Macro analysis gives a sense of perspective to an area of law. This makes it far
easier to work within the area, for example to locate a relevant rule and to
understand it better by recognising its place in the overall scheme. This is why
the prime thing one should do when first entering a new area of law – be it a
subject or a major statute – is to perform a macro analysis.

                                  Micro Analysis
Introduction
By organising or structuring law micro analysis makes it much easier to perform
most basic tasks with law. These consist of interpreting law, using law, writing
law, reading law, understanding law and remembering law.

Using Law
Micro analysis is crucial to working with law. Law possesses this natural
structure because law is made to be used, and this is the structure that law has to
have if it is to be used in litigation and transactions.16 This involves applying law
to facts to bring legal consequences to those facts. Organising a rule into
elements and consequences sets it up to be used because one of the primary
tasks in using law is to check the rule against the facts of a case to see if it
applies to them. Dividing the rule into elements and consequences provides a
natural checklist for this task. When the rule applies to the facts, the rule visits
them with the consequences that it designates - this is the fundamental reason
that the rule was made.

There are two basic rules for determining when a legal rule applies to a set of
facts to bring legal consequences. Rule 1 involves satisfying the elements while
Rule 2 asserts the irrelevance of surplus facts.

Rule 1 Satisfying the Elements
Rule 1 says that the set of facts must contain specific facts that are delineated by
and satisfy each of the elements, that is, Elements 1-n. Each element (with no
exceptions) must be satisfied by a fact that falls within the set that it defines.
This is the case because the overall class of facts to which a rule applies is
constituted by an aggregation of all of the subclasses of facts delineated by the
elements. (As is explained below, it makes no difference that this overall



16     This point is starkly emphasised by the model for using law where the first
column consists of a legal rule organised in this way, by dividing it into elements and
consequences joined by and within a conditional statement. The second column
consists of facts that fit within the elements to which the rule applies. This is
discussed in Christopher Enright Legal Method (forthcoming) www.legalskills.com.au

                                          25
category contains other subclasses besides those designated by the elements
because the rule still applies.)

To explain satisfying elements in philosophical terms, first consider the status of
one element. Satisfying one of several elements is a necessary but not sufficient
condition for the Consequences to follow. Thus Element 1 is saying that one
condition for the Consequences to follow is that Element 1 is satisfied by the
appropriate fact. Element 2 is saying a similar thing and so on for each of the
other elements. (If one wished to emphasise how each element represents a
necessary condition it would be possible to label the elements as Condition 1,
Condition 2 and so on.)

Consider now the significance of this when all of the elements have been
satisfied by appropriate facts. When this has happened, each of the necessary
conditions for the rule to apply has been satisfied. There is no need to do
anything more because what has been done is sufficient.

This can be formally stated in two propositions. Each element prescribes a
necessary condition for the legal rule to apply: the element must be satisfied by
the appropriate type of fact. Taken together, all of the elements prescribe both
the necessary and the sufficient conditions for the rule to apply.

Rule 2 Irrelevance of Surplus Facts
Rule 2 says that it does not matter that the set of facts contains facts additional to
those designated by the elements of the legal rule, as it almost surely will. These
surplus facts do not vitiate the application of the rule.17

Illustration
To illustrate these rules, assume that a legal rule has four elements, designated
as Elements 1-4. Each of these elements delineates a category of facts. There is a
category delineated by Element 1, a second category delineated by Element 2, a
third category delineated by Element 3 and a fourth category delineated by
Element 4.

Assume now that a set of facts contains a fact that falls within the category
delineated by Element 1, a fact that falls within the category delineated by
Element 2, a fact that falls within the category delineated by Element 3 and a
fact that falls within the category delineated by Element 4. In this case the rule
applies to the set of facts because the set contains facts that satisfy each of the


17     Some might wish to argue that these other facts might contain facts that raise a
defence in law. The answer to this objection is that all of the defences, exemptions,
exceptions and exclusions are already incorporated into the elements of a legal rule.

                                          26
four elements. Conveniently these facts can be designated in a corresponding
manner to the categories and elements, so that Fact 1 is the label for a fact that
falls within or satisfies Element 1, Fact 2 the label for a fact that falls within and
satisfies Element 2 and so on. Thus Facts 1-4 are the labels for facts that fall
within and in consequence satisfy Elements 1-4.

Assume that this set of facts also contains other facts that fall within other
categories. These facts can be labelled Fact 5, Fact 6 and so on to the last fact,
Fact n, with these other facts collectively being designated Facts 5-n.

In these circumstances, the application of a legal rule consisting of Elements 1-4
to this set of facts can be conveniently represented in a table in the following
way:

      Elements         →     Facts
      Element 1              Fact 1
      Element 2              Fact 2
      Element 3              Fact 3
      Element 4              Fact 4
                             Fact 5
                             Fact n
           ↓
      Consequences
          Figure 9 Elements and Facts

This table illustrates how the Rules 1 and 2 apply. Rule 1 is satisfied because
this set of facts contains facts, Facts 1-4, that fall within and thus satisfy the
categories designated by Elements 1-4. Rule 2 presents no problem. It asserts
that it makes no difference that the set of facts contains facts additional to the
facts that satisfy the elements, Facts 1-4. The presence of other facts, here
labelled Facts 5-n, cause no direct consequences for the legal rule – no matter
what these other facts are the rule still applies.

Syllogism
That a legal rule is a conditional statement brings an inevitable additional
consequence – application of legal rule to facts constitutes a syllogism for which
the conditional statement constitutes the major premise. To illustrate the
relationship of a conditional statement and a syllogism, consider the conditional
statement: “If a person does X, Y will happen.” A conditional statement in this
form is the major premise of a syllogism where the rest of the syllogism is
simply unfolding the logic impounded in the major premise. Thus, this
conditional statement is the basis of a syllogism in the following form:


                                         27
     Major Premise       If a person does X, Y will happen
     Minor Premise       A person does X
     Consequences        Therefore Y happens
                                  Figure 10 Syllogism

To explain how application of law to facts consists of a syllogism, assume that
there is a legal rule whose components are labelled in the standard way The
elements are Elements 1-n and their consequences are labelled Consequences.
Facts that fall within Elements 1-n are labelled in a corresponding way to their
elements so that Fact 1 is the label for a fact that falls within (and thus satisfies)
Element 1, Fact 2 is the label for a fact that falls within Element 2 and so on.
Collectively, then, Facts 1-n fall within Elements 1-n. In these circumstances the
syllogism takes the following form:

 Major Premise       If facts fall within the categories designated by Elements 1-n they
                     cause Consequences.
 Minor Premise       The facts in this case, Facts 1-n, fall within the categories
                     designated by Elements 1-n.
 Consequences        Therefore Facts 1-n cause Consequences.
                        Figure 11 Syllogism for Applying Law to Facts

This syllogism can also be represented by a diagram. It takes the following
form:

       1 Major Premise       2 Minor Premise    3 Conclusion
       Elements                     ←           Facts
       Element 1                                Fact 1
       Element 2                                Fact 2
       Element n                                Fact n
           ↓                                       ↓
       Consequences                             Consequences
                     Figure 12 Syllogism as a Diagram

The first column sets out the rule as a conditional statement that also constitutes
the major premise of the syllogism: “If facts fall within the categories designated
by Elements 1-n they cause Consequences.”

The minor premise of the syllogism provides as follows: “The facts in this case,
Facts 1-n, fall within the categories designated by Elements 1-n.” In the
diagram, the minor premise is represented by the arrow between the first column
(Elements 1-n) and the third column (Facts 1-n). These are linked by a
horizontal arrow to portray that Facts 1-n in Column 3 fall within the categories
delineated by Elements 1-n in Column 1 and thus satisfy Elements 1-n.

                                           28
The third column displays the conclusion. Since the rule applies to Facts 1-n the
Consequences designated by the rule apply to those facts. The third column lists
Facts 1-n. Beneath these is located an arrow leading to the row containing
‘‘Consequences.’’ This is how the diagram portrays the conclusion to the
syllogism, namely that Facts 1-n cause Consequences.

Interpreting Law
Elements of rule constitute a checklist that can be used when applying law to a
set of facts. One proceeds element by element (and subelement by subelement)
asking in each case the question: Is there a fact in this set that satisfied this
element? Sometimes the answer will be a clear “yes’ or “no”. But at other times
the answer will be “maybe”. This “maybe” answer is caused by ambiguity. The
element is ambiguous, possessing two or more meanings. According to at least
one meaning the element applies, while according to at least one other meaning
the element does not apply.

In other words, systematic checking of the law against the facts flushes out any
issues of interpretation because the “maybe” answer is a dead giveaway.
Moreover, because this process is working with pieces of the rule in the form of
element and subelements it helps the lawyer to identify the precise location and
nature of the ambiguity, something that reported law cases sometimes do not do.

Writing Law
Dividing a legal rule into elements and consequences is a prelude to writing
about the rule for a simple reason: good writing is clear writing because it is
structured and the best and simplest structure of a rule consists of its division
into elements and consequences. Proceeding by this means, one creates a
readable account of the rule in a text by the following means:
(1) At the outset the text lists the elements and consequences of the rule.
(2) After this the text describes, one by one, each element of the rule. And
when the text describes an element it then also describes any subelements of the
element.
(3) Finally, the text describes the consequences.

Reading Law
As explained above, dividing a rule into its elements and consequences is a
prelude to writing a coherent account of the rule. However, reading law is a
complementary activity to writing law so elements and consequences are also an
aid to reading a legal text. A reader simply seeks the structure in the text
whereby the rule is divided into its elements and consequences. If the text is
well written, the structure will be apparent. If it is not well written, it is all the



                                         29
more reason for the reader to look for the structure intently, and if necessary and
possible, substitute for the writer’s lack of structure by furnishing their own.

Understanding and Remembering Law
Since organising law is the key to writing and reading law it is also the key to
understanding and remembering law. Elements and consequences are the natural
components of a rule and they set the rule up to be used – hence they provide a
simple framework for understanding and remembering law.

To understand and remember a legal rule first up it is necessary to identify the
elements. To illustrate this, the elements of trespass to land are set out in Figure
6. Setting out the elements like this provides a simple portrait of the mainstay of
the rule. In the diagram there is a one word summary of each element – land,
possession, interference, intention, permission and defences. This is done to
facilitate understanding, remembering and writing law. Because of this summary
the elements have been reduced to six words that capture the essence of these
elements.

To learn the elements in more detail, it is necessary to go to all the various
subdivisions of the elements. There is an illustration of how to approach this in
Figure 7 that subdivides the element ‘land’ to two levels. As before, the
subelements are abbreviated, this time to expressions of one or two words. At
the first level, land is subdivided into ‘surface’ and ‘strata’. Each of these is
further subdivided to one level. Surface land is extended or defined by ‘air
space’, ‘subsoil’, the ‘middle line’ and ‘fixtures’. These, by the way, can be
represented in an alternative means by their location to the land – above, below,
beside and attached (or just ‘on’).

Obviously to understand the tort fully it would be necessary to complete the
micro analysis of the rule that was started in Figures 6 and 7. As this illustration
shows, structuring a legal rule makes it easy to understand. This understanding
can be encapsulated in a word or two in order to focus on the core concept.
Reducing the each element and subelement to one or two words makes them
easy to remember for a closed book examination. Generally if we have made a
structured account of something and we understand the topic, the key words are
enough of a mental prod to remind us of the detail. In part this is the simplicity,
in part it is the association between the key words and the longer description and
in part it is because when we structure leaning the parts of the structure naturally
stick together.

So that readers will not be misled by an omission, there is a further part of
understanding and learning law beyond organising the rule into elements and
subelements. This involves analyse questions as to how parts of the rule are


                                        30
interpreted. These questions are analysed by another model, the model for
forming law.18

                                    Illustration
                                  Introduction
To illustrate how to organise law a hypothetical Act is used here, the Workers
Injury Act 1900. Note that this Act is incomplete because not all sections
necessary for its operation are reproduced.

This illustration shows the two tasks in organising law. One consists of micro
analysis - identifying the legal consequences that a provision brings when it
applies and making out a check list of the elements which are effectively the
requirements to be met for those consequences to apply. The other consists of a
macro analysis that entails finding the relationship between the provisions. As a
bonus, it also demonstrates how to read a statute because the technique for
reading a statute is essentially to organise or structure its provisions.

                              Workers Injury Act 1900
           n ns
     4 Defi i tio
     In this Act:
     “Cause of the injury” means the thing that came into contact with the employee
     and the reason that it came into contact with the employee.
     “Compensation” means payment of $200 per week during any period of
     incapacity.
     “Medical expenses” means fees paid or payable to a doctor, dentist, nurse or
     pharmacist as a result of an injury.
     “Registry” means the Registry of the Workers Compensation Tribunal.
     “Tribunal” means the Workers Compensation Tribunal.

     6 Creation of Tribunal
     There is now created a tribunal called the Workers Compensation Tribunal.

     7 Right to compensation
     Any employee who is injured while at work is entitled to compensation and
     payment of medical expenses.

     8 Application
     (1) An application for compensation must state the name of the employee and
     employer, the nature of the injury, the cause of the injury and a comprehensive
                   cat        oc r
     medical certifi e from a d to .



18       Christopher Enright Legal Method (forthcoming) www.legalskills.com.au

                                          31
                           le e           n      e
  (2) An applicant must fi t h appl icat io at t h Re gi stry and serve i t on t he
  employee.
                                led
  (3) An application cannot be fi if it d     ot                            e l ce
                                        oes n cont ai n a ref erenc e to th p a
  where the accident occurred.

  10 Time limits
                          led i i 80 ays o th o cur renc e o th in u y.
  An application must be fi w th n 1 d     f e c            f e j r

  13 Tribunal to hear application
  The Tribunal may hear an application for compensation under s7.

                                    Analysis
Introduction
Taken together these provisions in this Act create a cause of action and provide
in part for hearing the action. As discussed above, two processes are used to
analyse and structure the provisions of a statute. We use micro analysis to
identify the legal consequences of each provision. Then we arrange the
provisions in a checklist of elements showing what is necessary to achieve each
consequence. We use macro analysis to see what relationships exist between the
various laws.

We will now display the results of this analysis. It is presented as a legal text,
and thus furnishes an additional advantage by demonstrating to the reader how
organising law is an essential for writing law.

Action Provisions
Section 7 creates a cause of action, setting out both substantive provisions
(which are the elements) and remedial provisions (which are the consequences).

Substantive Provisions
Section 7 sets out the three elements of the cause of action:
(1) The applicant is an employee.
(2) The employee is injured.
(3) This injury occurs while at work.

Remedial Provisions
If an applicant establishes the substantive elements of the action, under s7 they
are entitled to two remedies, compensation and payment of medical expenses.
Each of these remedies is expanded by a definition in s4.

First, the applicant is entitled to “compensation.” Compensation is defined in s4
to mean payment of $200 per week during any period of incapacity.



                                        32
Second, the applicant is entitled to “payment of medical expenses.” The term
“medical expenses” is defined in s4 by four elements:
(1) There are fees.
(2) The fees are paid or payable.
(3) The fees are paid or payable to any of the following – (a) a doctor, (b) a
dentist, (c) a nurse or (d) a pharmacist.
(4) The fees are paid or payable as a result of the injury.

Establishment Provisions
Section 6 establishes or creates the Workers Compensation Tribunal. Section 4
authorises an abbreviation in providing that “Tribunal” means the Workers
Compensation Tribunal.

Jurisdiction
Section 13 vests jurisdiction in the “Tribunal” to hear an application for
compensation under s7.

Procedures
There are several procedural requirements that an applicant must satisfy to
institute proceedings:
(1) Form. The application must be in a specified form.
(2) Filing. The application must be filed.
(3) Time Limits. The application must be made within specified time.
(4) Service. The application must be served.

Form of the Application
Section 8 (1) and (3) provide that an application for compensation must state the
following:
(1) The name of the employee.
(2) The name of the employer.
(3) The nature of the injury.
(4) The cause of the injury. Section 4 provides that the “cause of the injury”
has two components:
      (a) The thing that came into contact with the employee.
      (b) The reason that it came into contact with the employee.
(5) A reference to the place where the accident occurred.
(6) A comprehensive medical certificate from a doctor.

Filing of Application
Section 8 provides that an applicant must file the application at the Registry.
Section 4 provides that “Registry” means the Registry of the Workers
Compensation Tribunal.



                                       33
Time Limits
Section 10 provides that an application must be filed within 180 days of the
occurrence of the injury.19

Service of Application
Section 8 provides that after filing the application at the Registry an applicant
must serve it on the employee.

Relationships
So far we have exhaustively broken down the provisions of the statute so that
each provision has been divided into a checklist of elements20 and the legal
consequences that follow when each element is satisfied. The legal relationships
were indicated in one or more of several ways – they were stated explicitly, they
were apparent from the headings or they were implicit from the context.

In fact the relationships were the standard relationships between provisions
dealing with litigation. Litigious law has four standard types of provisions that
are present regardless of the nature of the cause of action. There are action,
establishment, jurisdictional and procedural provisions. These provisions and
their relationship to each other have been explained earlier in the paper.

                          Appendix 1 Rule of Law
Introduction
So far discussion of organising law has viewed it as a legal skill that is both
highly important and much neglected. There is, however, an important
jurisprudential aspect that is worth noting. This occurs in micro analysis with the
concept of the elements as part of a legal rule. An element delineates a class of
facts, being the type of facts to which the element applies.

Common law jurisprudence extols the rule of law under which all persons are
equal before the law. Or, putting this in a refined way, people in a similar
position should be treated in a similar way by the law. This means that when
elements delineate a category of facts to which a rule it is apply, they should not
improperly discriminate. This means that, broadly speaking, elements should
describe facts in general or categorical terms. It therefore goes strongly against
this notion of equality before the law if one person is singled out for special


19     This time limit is here included as a procedural requirement. It also has
substantive effect because an application cannot be made out of time.
20     For example under “Procedure” there were four items – form of the
application, filing of application, service of application and time limits – which were
necessary to institute proceedings. Each of these items was broken down into its
components, and where necessary, the components were also broken down.

                                          34
treatment, particularly where it is strongly punitive or rewarding. A classic
illustration of this from legal history consists of the Act of attainder.

Act of Attainder
An Act of attainder was an Act of parliament declaring a person or an
identifiable group of persons guilty of some crime, and determining their
punishment; thus they were convicted and punished without benefit of a trial in
a court of law.21 When convicted the person was said to be attainted of the
particular crime. When used it was typically invoked for political reasons to
secure either or both of two outcomes. (i) It was used to attack and usually
execute an opponent. (ii) It was used to confiscate the property of the person
attainted including any title they possessed which could then be used by the
Crown or granted to a supporter of the Crown. This was possible because
forfeiture of property and rank was one of the penalties for treason. In a number
of cases people were attainted posthumously for the very purpose of confiscting
their property by dispossessing their heirs of it. The last Act of Attainder in the
United Kingdom was in 1798 posthumously against Lord Edward FitzGerald for
leading the Irish Rebellion of 1798.

Rule of Law
Acts of attainder are objectionable in that they violate a fundamental principle of
justice which is part of the rule of law. This consists of the universality that all
laws should possess to ensure the equality of all before the law. For this reason,
some constitutions forbid attainder. They can do this specifically and directly.
For example, the United States Constitution in Article 1 Section 9 explicitly
forbids Congress to pass any bills of attainder. It provides as follows: "No Bill
of Attainder or ex post facto Law will be passed." A constitution can also
prohibit attainder on the basis that it violates separation of powers since it entails
a legislative body performing a judicial task.22

Latter Day Illustrations
There are several latter day uses or would be uses of attainder. (i) During World
War II the British War Cabinet discussed how they would punish leading Nazis
if captured. Cabinet papers released on 1 January 2006 reveal that the then
Prime Minister Winston Churchill had advocated a policy of summary execution
authorised by an Act of Attainder. He was, however, dissuaded from this by
pressure from the United States later in the war. (ii) In 2003 the United States
Congress passed the Elizabeth Morgan Act as a rider to a major transportation


21     Matthew Manweller “Independent Review” 22 March 2002 argues that
legislatively furnisehd reparation pacakages migh constitute an Act of attinder.
22     See, for example, Community Protection Act 1994. However, this was held to be
constitutionally invalid in Kable v Director of Public Prosecutions (1996) 189 CLR 51.

                                         35
bill. It was held unconstitutional as an attainder in Foreditch v United States
(2003). (iii) On 21 March 2005 Congress passed an Act formally known as the
Act for the relief of the parents of Theresa Marie Schiavo. It was named the
Palm Sunday Compromise by the majority leader in the House of
Representatives Tom DeLay, and is now popularly referred to by this name.
Arguably this was an act of attainder. (iv) In 1994 the New South Wales
parliament passed the Community Protection Act 1994 to authorise a six month
preventative detention order against one Gregory Kable. However, this Act was
held to be invalid by the High Court of Australia.23

                             Appendix 2 Labels
Introduction
Discussion in this paper explains legal method by reference to models.
Sometimes discussion refers to any item such as a statute or a meaning of an
ambiguous provision. On other occasions, though, it refers to a collection, list,
range or set of items. This appendix explains the labelling system used to
facilitate reference to these items.

General Form
To designate an item in an abstract way the name of the item commences with a
capital letter. Major examples are Element, Statute and Meaning. Abstracted
items in a set, range, list or collection are numbered. For example, the elements
of a legal rule are labelled Element 1, Element 2, Element 3 and so on. Where an
item is illustrative of some possibility it is designated with a capital letter, for
example Meaning X. A second such item could be designated Meaning Y.

Special Devices
Range of Items
A range, set, collection or list of items is conveniently designated by the first
and last member linked with a hyphen. For example, where a legal rule has four
elements the list or range of elements can be designated as Elements 1-4.

Use of “n”
In a particular instance there will be a specific number of items in a set. For
example a particular legal rule might be composed of five elements so that the
range of elements would be designated as Elements 1-5. In contrast to this there
is the case of a general model which tries to represent all cases of a set.
Obviously the number of items in the set will vary from case to case. This is
catered for the by designating the last item in the list by using the standard
mathematical designation ‘n’. This means, for example, that the list or range of
elements of any legal rule can be represented as Elements 1-n.

23    Kable v Director of Public Prosecutions (1996) 189 CLR 51

                                          36
Use of “0”
There is a special case with options where one of the options is to do nothing
and leave things as they are. This occurs, using the obvious example, with the
proposed making of a statute where one option is just not to enact a statute. In
this case the option is labelled with the symbol for nought, namely ‘0’. Thus the
option not to enact a statute is designated as Statute 0. Statute 0 represents the
option for a legislature not to enact a statute on a topic whereas Statutes 1, 2 3
etc are options for different versions of statutes on the topic.

Two or More Versions of an Item
If there are two or more versions of an item they are distinguished by additional
letters or numbers as the case requires. For example:
(1) If Element 2 has two meanings, the versions of Element 2 can be
designated Element 2A and Element 2B.
(2) If there are two versions of Fact 2 in a case, one propounded by the
plaintiff and the other put forward by the defendant they can be designated “P”
and “D” to signify the plaintiff and defendant’s version. Thus the two versions
are Fact 2P and Fact 2D.

Subdivisions of an Item
Subdivisions of an item can be designated with a numbering system that invokes
the form but not the meaning of decimal points. Thus if Element 2 has three
subelements, they can be designated Element 2.1, Element 2.2, and Element 2.3.
This process can keep going. Thus, if Element 2.2 has two subdivisions they can
be designated Element 2.2.1 and Element 2.2.2.

Corresponding Items
Sometimes there are sets with corresponding items. This can occur for a number
of reasons:
(1) For making and interpreting law, items correspond because of causation.
Each version of a statute on a subject and each meaning of an ambiguous
provision will cause an effect (if the statute is enacted or the meaning is declared
by a court to be legally correct).
(2) In the model for using law, elements and facts correspond because each
element delineates a category of facts so that in a particular case the element is
satisfied by a fact that falls within that category.
(3) In the model for proving facts (which is contained within the model for
using law) facts and evidence correspond because each fact is proved or
potentially provable by a piece of evidence

Corresponding items are labelled with the same number. To illustrate this:



                                        37
(1) Statutes and meanings causing effects. Statute 0 causes Effect 0, Statute 1
causes Effect 1, Statute 2 causes Effect 2 and so on. Meaning 1 causes Effect 1,
Meaning 2 causes Effect 2 and so on. Similarly, Statute X (or Meaning X)
causes Effect X while Statute Y (or Meaning Y) causes Effect Y.
(2) Facts satisfying elements. Fact 1 is the label given to a fact that fits within
or satisfies Element 1, Fact 2 is the label given to a fact that fits within or
satisfies Element 2 and so on.
(3) Evidence proving facts. Evidence 1 is the label given to evidence that
might prove or has proved Fact 1, Evidence 2 is the label given to evidence that
might prove or has proved Fact 2, and so on.

Labels of correspondence can also be used to make collective statements. For
example, Statutes 0-n cause Effects 0-n, and Evidence 1-n proves Facts 1-n.
These collective statements are to be construed according to the maxim
reddendo singula singulis. Literally this says that each is rendered on their own.
In plainer language, the items are to be taken singularly so the each item in the
first list is paired with the corresponding item in the second list.

Tables
As has been stated a list of items can be designated by reference to the first and
last item. For example, the meanings of any ambiguous provision can be
designated as Meanings 1-n. Lists such as these are often represented in a table.
For example, Meanings 1-n can be represented in a table in the following way:

       Meanings
       Meaning 1
       Meaning 2
       Meaning n
       Figure 13 Meanings

In this presentation is not strictly necessary to include Meaning 2. Indeed, it is
actually redundant, when n = 2. However, it usefully emphasises the sense of a
list which sets out the range of options or possibilities.

Diagrams
Tables can be amalgamated to become a diagram. Thus the meanings of an
ambiguous provision and the effect that each would cause if declared legally
correct by a court can be set out in a diagram where the first table or column
shows the meanings, the third columns shows the effect that each meaning
causes and the second column contains an arrow pointing from the first column
to the second column indicating that each meaning causes the corresponding
effect:



                                        38
Meanings       →     Effects
Meaning 1             ect
                    Eff 1
Meaning 2             ect
                    Eff 2
Meaning n             ect
                    Eff n
Figure 14 Meanings and Eff ects




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