Chapter 1 Outline Purpose of this Book Legal Tasks Legal Reasoning Forming Law Using Law Irrationality Legal Method Summary Commentary Law is reason free from passion. 1 Purpose of this Book This book analyses the major tasks that lawyers perform in a common law system. Common law legal systems are so called because common law, which is law made by courts in the course of deciding a case, was originally the main type of law in the system. Over the centuries, the position changed as statute law was enacted by legislatures such as a congress or parliament in an ever-increasing volume. To some extent this ousted common law but to a considerable extent it also established new territory to be ruled by law. But despite this change in composition, the systems are still popularly known as common law systems. In the self designated job of analysing the major tasks that lawyers perform in a common law system the author seeks to identify the reasoning processes that should inform those tasks. This analysis procures at least two advantages. One advantage is the sheer thrill of discovery. A practical advantage also accrues because the analysis lays a foundation for devising methods to perform those tasks. Clearly these methods are directly applicable to common law legal systems. However, since all legal systems perform the same fundamental task it is feasible that some of the methods might extend to other legal systems, even if they required some adaptation for that purpose. In identifying the reasoning processes that should be used in working with law the text is addressing governments and lawyers. It is prescriptive and not descriptive. It is enjoining ways to reason by saying in effect to those who work with law: If you wish to act rationally and honestly when working with law, this is the way to proceed. Legal Tasks Introduction In any legal system there are two primary sets of tasks. These are: 1. Aristotle Politics Book 3 1
2 Chapter 1 Outline 1. Forming Law. Forming law consists of making law and interpreting law. Legislatures make statute law, courts make common law and courts also interpret common law and statute law. 2. Using Law. Lawyers use law for their clients in litigation and transactions. Litigation involves taking a case to court. Transactions involve a process such as making a will or forming a company. Forming Law Forming law is the collective label used in this text for the two functions involved in bringing law into existence: 1. Making Law. One consists of the basic task of making law, which can either be statute law or common law. 2. Interpreting Law. The other involves completing the task of making law by interpreting law. Interpreting a law effectively writes into the text of a law the official legal meaning of some provision in the law. It determines that the provision is to be interpreted in one way rather than another. Using Law Once law has been formed, people use it in two situations. They use law when they perform legal transactions (such as making a will or buying and selling land). They use law when they engage in litigation where they are suing or being sued by another person. Legal Reasoning [T]hat noble and most sovereign reason 2 Each of the two major tasks in the legal system, forming law and using law, requires its own form of reasoning. Forming law involves purposive action, which utilises policy. Reasoning with policy rests on two core processes, causation (which in this book is generally shorthand for predicting causation) and evaluation. Using law in its overall operation involves syllogistic reasoning. Within this overall operation lawyers use other forms of reasoning that are based on cognitive science, induction, deduction and abduction. Forming Law Every state is a community of some kind, and every community is established with a view to some good; for mankind always act in order to obtain that which they think good. But, if all communities aim at some good, the state or political community, which is the highest of all, and which embraces all the rest, aims at good in a greater degree than any other, and at the highest good. 3 Introduction This analysis of forming law is directed towards developing a method or model to be used by a government which acts rationally and honestly when forming law by making 2. William Shakespeare Hamlet III.i.159 3. Aristotle Politics Book 1
Chapter 1 Outline 3 or interpreting it. This analysis comprises five basic propositions. Although these propositions are described here by reference to a legislature enacting statutes, they would also apply to other activities. They would apply, with appropriate modification, to a court as it makes common law and to a court that is interpreting common law or statute law. Proposition 1: Actions Cause Consequences When a person or body takes an action the action commonly causes some consequences. In the extreme case it sets in motion a series of events where each event is caused and determined by the preceding one. Or it creates a network of interconnected causes and effects. In other words, each consequence is likely to lead to more consequences. In the result, an action is likely to be part of, and to start or to continue, one or more chains or networks of consequences. These consequences vary in their characteristics. They can last for a short term or a long term, they can operate over a narrow area or a wide area, and they can concern a wide array of matters be they financial, political, emotional, psychological, physical or something else. Unpredictable Chain of Consequences A chain of consequences can be unpredictable. The Palsgraf Case, which is a leading case from the United States on causation in the tort of negligence, is a good illustration of unpredictability. 4 As a good storyteller should, we will start with the facts. First, there is the setting. On 24 August 1924 a Long Island Railroad train had stopped at Queen s Jamaica Station. It then started to move out of the station. A male passenger whose identity was never revealed was carrying a package 15 inches long and wrapped in newspaper. It contained fireworks but there was nothing on the packaging or appearance of the package to indicate this. Next, there are the events. The passenger hurried along the platform in an attempt to board the now moving train. The passenger appeared to be falling. Two employees of the railroad company rendered assistance. One was on the train and the other was on the platform. The guard on the train attempted to pull the passenger into the car while the guard on the platform attempted to push him into the car from behind. These attempts to assist the passenger caused the package the passenger was holding to fall on the rails. When the package hit the rails the fireworks in it exploded. Then the explosion caused some scales at the other end of the platform to fall over. This happened either because of the shock of the explosion or because a panicking bystander upset the scales. The falling scales injured Mrs Helen Palsgraf who was standing on the platform after buying a ticket to go to Rockaway Beach. 4. Palsgraf v Long Island Railroad Co 162 NE 99 (NY 1928)
4 Chapter 1 Outline Mrs Palsgraf sued the Long Island Railroad. Mrs Palsgraf lost her case. The relevant legal rule required that her injury was reasonably foreseeable. This was not so, the court found, since the chain of causation leading from the actions of the guards in helping the passenger to the falling of the scales was so long and so unlikely. Complex Chain of Consequences Causation can also be complex. On 28 June 1914 in Sarajevo a Bosnian revolutionary, Gavrilo Princip, assassinated the Austrian archduke, Franz Ferdinand and his wife Sophie, Duchess of Hohenberg. This assassination precipitated, and in that sense caused, the four years of carnage that was known as World War I, and that began in July 1914. This event, however, was simply the trigger that set off declarations of war. It was the starting gun for hostilities. While the actual causes of the war are complicated and are still debated, one of the basic contributions consisted of unresolved tensions among the European powers which had led to a complex web of treaties involving mutual support in times of aggression. In outline, that is how the assassination of two people, one husband and one wife, led to the slaughter of millions. Proposition 2: Actions Possess Intrinsic and Consequential Value There is a saying that if you give a person a fish you feed them for a day, while if you teach them how to fish you feed them for life. This is a colourful illustration of the proposition that an action potentially has two types of value or worth, intrinsic value and consequential value. An action s intrinsic value is its value as it stands alone, regardless of what it leads to. An action s consequential value is measured by the values of all the consequences that it causes in whole or in part. Proposition 3: Law Mostly Possesses Consequential Value Handsome is as handsome does. 5 A law passed by legislators in the dead of night that is concealed from everyone is a piece of paper that has little significance. This is the basis for the proposition that a law as written, before it has caused any consequences, has little intrinsic value. It is just a piece of paper. To use the popular phrase, it is all talk and no action. To ensure that this proposition is fully understood, assume that a law as written contains a manifestly unjust even morally horrendous rule. A biblical example is the law providing for the Massacre of the Innocents, an episode of mass infanticide by the King of Judea, Herod the Great. The story is told in the Gospel of St Matthew. 6 King Herod feared a loss of his kingship because of a prophecy revealed to him by the Jewish priests that a new King of the Jews would be born in Bethlehem. In consequence he ordered the execution of all young male children in the village of Bethlehem. This, according to St Matthew, lead to Jesus family fleeing to Egypt and staying there until after Herod s death. However, historical evidence for this massacre 5. Commentary 1.1 6. St Matthew 2:16-18
Chapter 1 Outline 5 is slight or non-existent. Consequently it is now regarded as conveying only allegorical truth. But to take this law as an example, most people who read it would be shocked in the extreme by its content. Surely this is proof that a law can have significant intrinsic consequences? The answer to this objection is as follows. The ordering of the killing of innocent children is morally repugnant in the extreme, but the order on its own lacks significance. That said, when people read the law they experience strong revulsion. This, however, is a consequence of the law (just as any subsequent killing of innocent children would be a consequence), not a measure of its intrinsic value. It is appreciated that this distinction may seem artificial. Moreover, I am not denying that laws can be morally judged by how they are written. What I am arguing is that the most fruitful way to assess a law is by its consequences not by its content. Of course its content is likely to be one of the major determinants of its consequence. However, from the perspective of social engineering rather than abstract moralising (which I stress is a worthy activity) the important things are the consequences of a law. Now that we have established that the major importance of law consists of the consequences that it brings, it is necessary to explain something about these consequences. By creating these consequences or effects, law changes the world because it brings about outcomes of effects. These effects are of two kinds, direct or indirect. Direct Effects Every law that a legislature enacts causes a direct effect. There are three obvious direct effects: 1. Statute Books. The statute enters the statute books. 2. Available for Use. The statute is then available for use. When used it can impose legal consequences on those who come within its ambit. 3. Actually Used. In some cases, perhaps many, the law will be successfully invoked. It this case it will actually impose those consequences on people. For example, if a law establishes a stock market and a mechanism for people to sell stock (or shares as they are also called) it is likely that some even many people will use this market to sell stocks. This effect is in all likelihood the core purpose for which legislator enacted the law. Indirect Effects Most laws will cause some indirect effects as well direct effects. 7 Indirect effects are many and varied.. They can happen in numerous ways, they may be intertwined with other social phenomena and they may happen some time, even some considerable time, after the law is enacted. They can also be highly unpredictable. These indirect effects may be part of the intended purpose of the law. Or they may be unintended or 7. The distinction between direct and indirect effects is not strict.
6 Chapter 1 Outline unanticipated consequences. They include the effects that a law has on those who read it. We can illustrate indirect effect from the example above of the law that establishes a mechanism for people to sell stock. While the direct effect of the law is to provide a simple mechanism for buying and selling shares, there is an obvious indirect effect (and there may also be some that are not so obvious). This law is likely to encourage people to invest in stock because they now have an assurance of resale: if they have purchased stock, then at a later time for any reason they wish to sell their stock to obtain cash, there is a ready mechanism for doing so. Without this assurance many would be deterred from investing because of a fear that if they needed to disinvest and cash in the stock, they could not be sure of doing so quickly and conveniently. Proposition 4: Best is Best So far we have established that law causes consequences and that the main value of a law lies in the consequences that it determines. If this is the case it indicates a rationale for making law that incorporates a measure of the value of law. This rationale may be captured in a simple proposition. Since the main function of law is to change the world, the only one good reason to make a new law or change an established law is to better society s position. If the law does not make society better off then it should not be made. So the first point is simple: no improvement no law. However, when a government is contemplating enacting a statute on some subject it usually has a choice because there is more than one version of the law that will seem to be a solution to a problem or a procurer of some desired social benefit. Each version of the statute, it is believed, will deliver at least some of the outcomes that the government desires. However, each statute will deliver it in different degrees, perhaps in different kinds and with differences in the types and extent of the costs incurred. All of this means that the government has a choice. Since a government has a choice when it is contemplating enacting a law on a subject it is important to ascertain the basis on which this choice should be made. Now it is axiomatic that it is rational to want the best and irrational to want anything less. Therefore a rational and honest government when faced with a choice of possible version of a statute should choose the one that is predicted to cause the best outcome or effect. In other words the best law is the law that delivers the best outcome. This conclusion, it is worth stressing, rests on two axioms. It is rational to want the best outcome from change. It is irrational to want anything less. Proposition 5: Net Benefit Measures Best If the best law causes the best effect, how should lawmakers and judges determine which effect is best? The best effect is judged by a cost benefit analysis that determines net benefit. The best effect is the outcome that yields the highest net benefit.
Chapter 1 Outline 7 What then, is net benefit? Net benefit is constituted by total benefits that a law brings less the total costs that the law incurs. While a common use of net benefit confines it to benefits and costs that can be expressed in money s worth, the analysis here is allinclusive. It encompasses any type of benefits and costs regardless of their nature. Consequently it includes costs and benefits that are, for example, economic, financial, physical, emotional, spiritual, ethical, aesthetic and social. Issues In principle the process based on the net benefit rule is the way to go. In practice, however, there are problems in the two major processes that are involved in determining which law or meaning of a law yields the highest net benefit. These processes are causation and evaluation. Causation A legislature typically has a number of ways in which it can legislate on a topic. Each version of the proposed statute will be beneficial but in a different way; for example there will be differences in the type and degree of benefits and costs. Obviously to appraise each version of the statute to determine the best it is necessary for legislators to do their best to predict the outcome or effect (meaning a raft or cluster of effects) that the proposed version will cause. For convenience this book uses the word causation as a label for the task of predicting the bundle of effects that any version of a statute will cause when enacted. When interpreting law it refers to predicting the effect that any interpretation of law will cause if declared by a court to be the legally correct meaning of the provision in question. Unfortunately, because the science of legislative behaviour is not fully developed and understood there is no certainty in the task of causation. However, to make the best possible prediction, there are three requirements. (i) It is necessary to be familiar with the various types of effects that a statute or meaning can cause. 8 (ii) It is necessary to understand the social science concerning causation in general and the science of legislative causation in particular, which is also referred to as legislative impact analysis. 9 (iii) It is necessary to understand how to take into account the uncertainty involved in predicting causation. 10 Evaluation Evaluation underpins the measurement of the net benefit of the options before a legislature or court. There are two problem areas here: 1. Values. There is a problem in determining the values to be deployed in the process of measurement. Given that law is a social product the ideal is to use values that 8. Chapter 16 Effects 9. Chapter 13-16 10. Chapter 13-16
8 Chapter 1 Outline represent as accurately as possible the values of society the problem lies in achieving this in practice. 11 2. Measurement. The items constituting net benefit are not always capable of being measured. And even if an item can be measured it may not be measured in a way that enables it to be compared and computed with some other item. This is the problem of incommensurability. Because of this problem it is often not easy to determine if one set of outcomes is better or worse than another. 12 Using Law Introduction Every legal rule changes the world. This function of a legal rule is fundamental to the analysis. It is relevant to using law because it dictates the structure of a rule. A rule must be formed in such a way that it can apply to facts to give them legal consequences (which is how it changes the world). When rules are formed in these ways people can use them in litigation and transactions. Changing the World As the preceding analysis argued, law changes the world. In a rational society the whole purpose of law is to change the world for the better as the legislators have judge it. As already noted, law changes the world by both direct and indirect means. A legal rule changes the world by direct means because the law applies or potentially applies to part of the world. This function of a legal rule dictates that a legal rule possesses a definite structure, which will now be explained. A legal rule changes the world by indirect means when there are derivative consequences from the existence and operation of the law. These can be hard to predict, they can spread out in many directions, they can consist of a chain reaction or a network of effects and they can continue for some time, and persist even after the legislature has repealed the legal rule. Structure of a Legal Rule Legislatures and courts make a law in order that it will apply to the types of facts that it designates and visit them with the legal consequences that that law provides. In this way, albeit a small way in some circumstances, a legal rule changes the world. In order that a legal rule can operate to change the world it must have a certain structure. There is a discussion of this structure in a later chapter so for now there is an outline sufficient to help the chapter convey its message. 13 This structure comes from three characteristics: 1. Determining the Application of the Rule. The rule must identify or determine the types of facts or circumstances to which the rule applies. To this end a legal rule contains elements. Each element delineates or describes a class or category of facts. For convenience, in this book elements are labelled Element 1, Element 2 and so on. 11. Chapters 17-22 12. Chapter 12 Measurement of Net Benefit 13. Chapter 3 Structuring Legal Rules
Chapter 1 Outline 9 This means that the elements of any legal rule can be collectively described as Elements 1 n. 14 The facts to which a rule applies are labelled Fact 1, Fact 2 and so on. The facts can be collectively described as Facts 1 n. To illustrate the relationship of elements and facts, Element 1 applies to Fact 1, or as lawyers also put it, Fact 1 satisfies Element 1. 2. Determining How the Rule Changes the World. The rule must state how it changes the world. It does this by designating the legal consequences that it brings when the rule applies to a set of facts. This part of the rule is labelled Consequences. 3. Commanding that the Consequences Apply. The rule must command that those consequences apply when the delineated type of facts occur. A legislature accomplishes this by framing a legal rule as a conditional statement. This wraps up the elements and consequences in a command. It says, shortly stated, if facts of the kind designated by the elements occur, the legal consequences stated in the rule apply to those facts and to the parties involved in those facts. This diagram depicts these three characteristics of a legal rule: 1 Elements 2 Element 1 3 Element 2 4 Element n 5 6 Consequences Diagram 1.1 Structure of a Legal Rule In this diagram: * Rows 2-4 show that the elements of the legal rule are Elements 1-n. * Row 6 indicates the consequences that follow when the elements apply to a set of facts. These are labelled Consequences. * Row 5 contains a downward arrow ( ). This arrow indicates that satisfying the elements in a case in court will cause legal consequences. Application of a Legal Rule In the analysis of a legal rule above we indicated that a legal rule needed to be formulated as a conditional statement in order to apply to facts and to command compliance. This diagram shows how elements of legal rule apply to facts: 1 2 3 4 2 Elements Facts 3 Element 1 Fact 1 4 Element 2 Fact 2 14. The letter n is used in its standard mathematical designation to refer to the last item on the list.
10 Chapter 1 Outline 5 Element n Fact n 6 7 Consequences Diagram 1.2 Application of a Legal Rule to Facts In this diagram: * Column 2 contains the elements of the legal rule, Elements 1-n. * Column 4 contains the material facts of the case, Facts 1-n. A material fact is a fact that satisfies an element. It is also labelled an essential fact or a relevant fact. * Column 3 has a right to left arrow ( ) in Row 2. This indicates something that we can express in either of two ways: 1. Facts 1-n fit within the categories of facts that Elements 1-n delineate. 2. Elements 1-n apply to Facts 1-n. * Column 6 has a downward arrow ( ). This represents a core proposition: when the facts in a case (Facts 1-n) satisfy the elements of a legal rule (Elements 1-n) the consequences designated by the rule apply to the facts and to the parties (Consequences). The mechanism by which a legal rule performs the function of applying to facts is the syllogism. 15 A syllogism is a form of deductive reasoning. It comprises a major premise, a minor premise and a conclusion. Its nature is that if the major and minor premises are true in fact and are framed in the right way, the conclusion logically follows. 16 While this is more fully explained later it will round of the explanation to take a brief look here. First let us illustrate a syllogism in a case where we assume, for the illustration, that Daffy is a Duck: Components Relationships Major Premise All ducks are birds. Minor Premise Daffy is a Duck. Conclusion Therefore Daffy is a bird. Diagram 1.3 Illustration of a Syllogism Now that the book has illustrated the general nature of a syllogism, let us examine the syllogism for applying law to facts. This syllogism can be set out in a diagram. This diagram is based on the assumption that there is a legal rule consisting of Element 1-n and the facts that satisfy these elements are Facts 1-n, as in the diagram above. This is the syllogism: Components Major Premise Relationships If two things happen there are consequences: 1. A plaintiff proves in court Facts 1-n. 2. Facts 1-n fall within the categories designated by Elements 1 n. 15. MacCormick (1978) pp 19-32, citing Daniels v White [1938] 4 All ER 258 as an illustration 16. Chapter 5 Deduction
Chapter 1 Outline 11 Minor Premise Conclusion The consequence is that the court will impose Consequence X on the parties. In this case these two things have occurred: 1. The plaintiff has proved in court Facts 1 n. 2. Facts 1-n fall within the categories designated by Elements 1 n. The court will impose Consequence X on the parties. Diagram 1.4 Syllogism for Applying Law to Facts In plain language when Elements 1 n are satisfied in a case by the right facts, labelled Facts 1 n, the legal rule imposes consequences on those facts and the parties involved with them. Using Law in Litigation Nature of Litigation Law is used in litigation, where one party sues another using some legal rule that creates a cause of action. Like other legal rules, this cause of action consists of Elements 1 n and Consequences wrapped in a conditional statement. When facts in a case satisfy Elements 1 n, the cause of action applies to those facts. The facts to which Elements 1 n apply are, as already stated, designated as Facts 1 n. There are two major tasks in the most common form of litigation, namely, litigation based on a dispute of facts. These tasks are applying law to facts and proving facts. Applying Law to Facts One of two major tasks in litigation consists of applying law to facts. As noted and explained above, the process of applying law to facts is a syllogism based on the method of reasoning called deduction. Issues Litigation involves a dispute over one or more of thee types of issues. These issues concern law, facts and discretions. Issues of Fact In an actual trial of a case, Facts 1 n need to be proved. The evidence that might be used to prove Fact 1 can be labelled Evidence 1, the evidence that might be used to prove Fact 2 can be labelled Evidence 2, and so on. Collectively Evidence 1 n is the evidence that might prove Facts 1 n. In litigation facts can be difficult to prove because the evidence may be flimsy and the other side produces contrary evidence. Several means are used to prove facts. Some of these are relatively uncontentious. These means of proof are, broadly stated, as follows: 1. Human Observation. Humans can observe facts with any of their five senses, namely sight, hearing, touch, taste and smell. Once a person has observed facts they can give evidence of those facts in court. The accuracy of this observation is assessed in two ways. A court can directly assess it by cognitive science or some common
12 Chapter 1 Outline assumptions that pass for cognitive science regardless of their validity. A court can indirectly assessed it by the form of reasoning known as induction. This is explained below. 2. Induction. Induction (or inference as courts are wont to call it) rests on the common observation that behaviour often has patterns based on custom or good sense. For example if X, Y and Z commonly occur together and the court is satisfied that X and Z happened, it may find by induction from X and Z that Y also happened. Or if a witness gives evidence of P and Q happening and P and Q are not likely to occur together, it lessens the credibility of the evidence. 3. Deduction. A court can find facts by reference to science and technology. In an obvious case, a clock can tell the time or a security camera can record events. In the best case the underlying logic is deductive. In some cases, though, it may be qualified deduction. The science may be uncertain. Or the science may depend on an observation of some fact and that observation is questionable. 4. Deeming Provisions. Some rules of law deem facts to be legally true. These deeming rules apply in the following case. 4.1 Agreement. Parties to the case can agree on some facts. 4.2 Admissions. One party admits that certain facts are true. 4.3 Presumptions. There are some common law presumptions that certain facts are true or are true in certain circumstances. 4.4 Statute. A statute can deem certain facts as true. 4.5 Judicial Notice. A court can take judicial notice of facts that everyone knows to be true (for example Christmas Day falls on 25 December). In theory, courts could insist that facts must be shown to be absolutely true to be proved for the purposes of a case. This, however, would be unrealistic. Instead courts adopt an abductive approach and require that facts be proved according to some stipulated level of probability. This is described in law as the standard of proof. Two common standards are the preponderance of evidence or balance of probabilities that involves proof that is 51% probable and the standard of proof for criminal cases which is proof beyond reasonable doubt (for which there is no agreed numerical measure). Issues of Law An issue of law arises when the parties dispute how a part of a legal rule should be interpreted. Courts commonly resolve this issue by reasoning, based on policy, that seeks to find the best outcome. 17 Issues of Discretion Sometimes a legal rule authorises a decision maker to exercise a discretion. A decision maker should exercise this discretion by reasoning based on policy in order to find the best outcome. 18 17. See Chapter 10 Policy 18. See Chapter 10 Policy
Chapter 1 Outline 13 Using Law in Transactions People use law in transactions. Examples of a transaction are making a will, forming a company and transferring land. There are two major tasks in a transaction. One consists of applying law to facts, while the other consists of establishing facts. Applying Law to Facts Applying law to facts is a task in transactions, and also a task in litigation. As explained and illustrated above in the context of litigation, the process of applying law to facts is a syllogism based on the method of reasoning labelled deduction. Establishing Facts Parties to a transaction need to establish the necessary facts. In this task there is both a similarity and a contrast between litigation and transactions. The similarity is that each operation involves establishing facts. The contrast lies in the means of establishing facts. In litigation parties seek to prove past facts by evidence. In a transaction parties establish facts in present time by creating them. They create facts by following legally designated processes. Here is an example. A required fact for a transfer of land might be that a vendor hands a signed transfer form for the land to the purchaser. To create this fact, the vendor prepares the transfer form (or uses a ready made form), fills in the detail of the land that is to be sold, signs the form then hands it to the purchaser. To emphasise the point, as this illustration shows, in a transaction parties control the processes by which facts are established. This is why transactions possess a high degree of certainty, in contrast to litigation, which can have a high degree of uncertainty about proof of facts. Models The propositions enunciated above enable us to develop a model for using law, which incorporates two specific models. One is a model for litigation and the other a model for transactions. 19 Irrationality Ideally the part of the world inhabited by law would always function in a rational way. Clearly, though, that is not the case. This is why Part 3 of this book considers various illustrations of and explanations for irrationality. 20 Legal Method Legal reasoning is an interesting study in its own right. It also has a practical benefit. It is possible to build on our understanding of legal reasoning to create methods for working with law that achieve three goals. These methods are effective because they do what needs to be done. These methods are efficient because they incur minimum costs. These methods are ethical since they rest on accepted values. 19. Chapter 33 Model for Using Law 20. Chapter 27 Irrationality
14 Chapter 1 Outline The relationship between legal reasoning and legal method bears a strong analogy with science and technology. Legal reasoning furnishes the science that explains how law should work if it is to be rational. Legal method builds on this to devise ways of working with law that impound this rationality in a technology based on models. Devising ways of working with law that make the legal system effective, efficient and ethical is worthwhile in itself. However, it also confers an additional advantage. It enables law to lay a solid claim to be legitimate. This is the reason that this book also focuses on legal method. Parts 2 and 3 lay the groundwork by explaining and distinguishing between what is rational and what is not rational. Specifically Part 2 provides an account of the reasoning processes that should underlie working with law, while Part 3 ventilates various possible illustrations of and causes of irrationality. Part 4 then draws on the ways of thinking rationally explained in Part 2 to devise rational methods for working with law. These methods are embedded in models. Part 4 outlines these methods. They are explained in some greater detail in the companion volume to this text, Legal Method. 21 Summary Since this subject is hard wrought there may be an advantage in reading a summary before commencing the rest of the book or just reading a part of it. The advantage of a summary is that it highlights both the key concepts and the relationships between them. If during the course of reading the reader is overcome by detail it may settle the structure to read the summary. Finally, when a reader has finished the book reading a summary is a way of refreshing and recapping. To further any and all of these purposes there is a summary of the entirety of legal reasoning as covered in this book in the preliminary pages. Commentary Commentary 1.1 Footnote 5 The proverb handsome is as handsome does means that good deeds are more important than good looks. The saying was parodied in the movie Forrest Gump in the line, Stupid is as stupid does. The first recorded use of the proverb is found in Geoffrey Chaucer s Canterbury Tales (c. 1387) in The Wife of Bath s Tale. 21. Christopher Enright Legal Method