Legal Method and Reasoning
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Scanning for argument: the argument was relatively well signalled by the introduction and the headings. What is the main argument? The following has been divided into proposition and evidence supporting it. Many readers do not differentiate the two which is a major error and leads to confusion and misunderstanding. A proposition is a statement being put forward as a point in argument construction. It can be given strength by evidence supporting it. • Proposition 1, para 2: The Maastricht Treaty was not the remarkable diplomatic achievement it was claimed to be. Evidence: street reaction apathetic, confused, hostile, fearful: (i) Danes voted against it; (ii) French approved it marginally (1%); (iii) commentators at the time said that if there had been greater scrutiny in Great Britain and Germany the outcome would have been uncertain; (iv) even those supporting it were just plain greedy. • Proposition 2, para 3: There was a ‘growing disillusionment with the European construct as a whole’. • Proposition 3, para 3: The ‘moral and political legitimacy’ of the European construct is in decline. Evidence: There is ‘a sense of disempowerment of the European citizen’ which has many roots, but three stand out: (i) democratic deficit; (ii) remoteness; (iii) competencies of union. • Conclusion: a package of three proposals (a limited ballot by citizens concerning legislation; internet access to European decision making; establishment of a constitutional council), taken from research, initiated by the European Parliament, can make a real difference to increase the power of the European citizen without creating a political drama. The argument as set out in the introduction (in paras 1–3) The Maastricht Treaty was not the diplomatic achievement it was claimed to be. The European citizen continues to be disempowered. There remains a growing disillusionment with the European construct as a whole which is suffering from a decline in its moral and political legitimacy. However, a package of three proposals (a limited ballot by citizens concerning legislation; internet access to European decision making; establishment of a constitutional council), taken from research, initiated by the European Parliament, can make a real difference to increase the power of the European citizen without creating a political drama.
However, before previous cases can be considered as potential ratios, they need to be located according to whether or not they are similar to the present case. Sometimes, counsel for the litigants will strenuously argue that previous cases are not precedents because they can be distinguished on their facts. In other words, they are not similar; the court may agree out of persuasion or policy. In this way extremely subtle ‘differences’ are found between two cases. It is difficult if not impossible to come up with a clear formula that will always work for ascertaining the ratio of a case. But a reasonable idea of the difficulties in ascertaining the ratio is a necessary and revealing step for any interpreter engaged in the search for a ratio. Appreciation of the difficulties prevents simplistic case analysis which will ultimately lead to simplistic and inadequate construction of legal arguments. If an argument is being made on weak, tenuous or stretched grounds, it is better to know than be ignorant as to the basis of the case one is constructing. One of the major difficulties involved concerns the different types of information and skills that have to be utilised in deciding whether a case is a precedent. To provide some light relief, work through the questions in the chart in Figure 4.6, below. It is an over-simplistic chart asking some of the necessary questions to decide if a previous case constitutes a precedent to be followed in a current case. As mentioned above, the law tends to work through generalised rules which have to be applied to specific circumstances. This is why lawyers spend so much time comparing, contrasting and differentiating situations, for they are constructing arguments based upon similarity and difference. Legal rules are, by convention and necessity, expressed as general rules. Lawyers have to reason from the generality of the rule to the specificity of the situation. At times, lawyers have to research previous cases meticulously to assist in predicting the outcome of the current case. After all, there is no point in going to court if the exact point the client wishes to make has already come before a court and been determined to his detriment. Part of the lawyer’s particular expertise is knowing how to look quickly through past cases to find relevant decisions either supporting or opposing a client’s case. The location of materials is relatively easy given the range of on-line databases available. Unfortunately, students often do not have unlimited access to training in how to use such databases. So, there is a need to rely on one of the citators to locate relevant cases. Searches can be made, first, to pinpoint cases dealing with specific legal rules; secondly, a range of cases with similar facts can be located through analysing the first trawl of data. These cases then need to be carefully read and analysed. The lawyer has to construct an argument and predict the opponent’s arguments. This is done by, initially, checking relevant cases. It must be evident by now that the ability to locate and subsequently analyse law reports is extremely important. After careful reading, the lawyer has to construct detailed arguments concerning similarities with other cases that help the client’s position, and arguments need to be constructed demolishing the potential precedential value of cases not helping the client. This latter skill is called distinguishing, and it is a particularly important skill for those who wish to ensure that a precedent is not followed.
common law. This is a far reaching power to interfere with the freedom of individuals to contract. The court can say ‘no’, you cannot freely agree this, because, in our opinion, it is not fair and reasonable. The actual decision in this case specifically regarding s 55 is of limited importance (as we are told s 55 is protecting the contracts made between 18 May 1973 and 1 February 1978) and, as such, would soon outlive its usefulness. However, the wording of s 55 is substantially replicated in s 11 and Schedule 2 of UCTA 1977, which Bridge predicts will be of increasing importance (and he was correct). • He discusses the fact that the exercise of any power to decide what is fair or reasonable will involve legitimate judicial differences and that the courts should refrain from interfering with the decision of the previous court unless they feel that there was a clearly wrong decision or that the case was decided on some clearly erroneous principle. • Lord Bridge turns to a question of construction, of the meaning of words used in the statute. • The onus is on the respondents to show that it would not be fair or reasonable to allow the appellant to rely on the relevant condition. • Appellants said the court must look at the situation at the date of the contract, but Lord Bridge said that the true meaning of the phrase in s 55(5) ‘regard shall be had to all the circumstances of the case’ must mean that the situation at the time of breach and after breach must be taken into account. • Lord Bridge discusses another issue of the meaning of words used in the statute. The meaning of the words ‘to the extent’ in s 55(4). • Lord Bridge asks: ‘Is it fair and reasonable to allow partial reliance on a limitation clause, to decide…that the respondents should recover say, half their consequential damage?’ • Lord Bridge goes on to say that he considers that the meaning of the phrase ‘to the extent’ is ‘in so far as or in circumstances in which’. • He suggests that the phrase does not ‘permit the kind of judgment of Solomon illustrated by the example’. The reference to Solomon is typical of the literary/religious referencing that one often finds in cases. Solomon was an Old Testament king accredited with much wisdom in his judging. When confronted with a baby claimed by two mothers he suggested cutting it in half so each could have half. The false mother agreed, the real mother said no, the other mother could have the baby. Thus, he located the real mother.
3.8 The standard layout of a treaty A treaty, like English legislation, has a standard format. At the beginning of the treaty is a preamble setting out the main goals of the treaty and the aspirations of the parties. It is divided into clusters of items dealing with similar matters. Each cluster is called a title (which roughly equates with the division of an English statute into parts). Titles contain numbered items called Articles, each one setting out a basic rule or principle. Articles can be divided into paragraphs and subparagraphs. The numbering system is Arabic and it not as dense and complex as that used by English statutes. Figure 5.3: standard layout of a treaty 5.3.9 How do obligations entered into through treaties become part of English law? If the UK government wishes all, or part of a treaty, to become part of English law it must specifically incorporate the treaty, or part of it, into the English legal system via legislation. This legislation goes through the same procedures as any other piece of legislation. If the government expects the treaty to give rise to a range of other measures over time it will usually place sections in this legislation delegating the authority to make later legal changes to others (such as the minister of appropriate government departments). This saves time as there is no need for the full legislative process in Parliament. Whilst it is still the subject of parliamentary debate, it does have a fast track procedure. In relation to treaties becoming part of English law in this way, there is always the possibility that Parliament may refuse to enact the legislation, which would leave the government in an extremely difficult situation. However, the UK Parliament is usually controlled by the political party forming the government and the government would not risk the embarrassment of failure but would guage its position in Parliament prior to signature of a relevant treaty.
