ABSTRACT

Language skills,study skills, argument skills and legal knowledge are vital to every law student, professional lawyer and academic. Legal Method  Reasoning offers a range of 'how to' techniques for acquiring these skills. It shows how to handle and use legal texts, how to read and write about the law, how to acquire disciplined study techniques and how to construct legal arguments.

This new edition will be of value to both undergraduate and postgraduate law students.

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INTRODUCTION

Successful legal study depends upon the simultaneous development of the following different but complimentary skills:

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competency in a narrow field of practical legal method and practical reason. Then, a philosophical argument will be appreciated, considered, evaluated and either accepted or rejected. This is not a theoretical text designed to discuss in detail the importance of a range of legal doctrines such as precedent and the crucial importance of case authority. Other texts deal with these pivotal matters and students must also carefully study these. Further, this is not a book that critiques itself or engages in a post-modern reminder that what we know and see is only a chosen, constructed fragment of what may be the truth. Although self-critique is a valid enterprise, a fragmentary understanding of ‘the whole’ is all that can ever be grasped. This is a ‘how to do’ text; a practical manual. As such, it concerns itself primarily with the issues set out below: How to … (a) develop an awareness of the importance of understanding the influence and power of language; (b) read and understand texts talking about the law; (c) read and understand texts of law (law cases; legislation (in the form of primary legislation or secondary, statutory instruments, bye-laws, etc), European Community legislation (in the form of regulations, directives)); (d) identify, construct and evaluate legal arguments; (e) use texts about the law and texts of the law to construct arguments to produce plausible solutions to problems (real or hypothetical, in the form of essays, case studies, questions, practical problems); (f) make comprehensible the interrelationships between cases and statutes, disputes and legal rules, primary and secondary texts; (g) search for intertextual pathways to lay bare the first steps in argument identification; (h) identify the relationship of the text being read to those texts produced before or after it; (i) write legal essays and answer problem questions; (j) deal with European influence on English law. The chapters are intended to be read, initially, in order as material in earlier chapters will be used to reinforce points made later. Indeed, all the chapters are leading to the final two chapters which concentrate on piecing together a range of skills and offering solutions to legal problems. See Figure 1.1, below, which details the structure of the book. There is often more than one solution to a legal problem. Judges make choices when attempting to apply the law. The study of law is about critiquing the choices made, as well as critiquing the rules themselves. However, individual chapters can also be looked at in isolation by readers seeking to understand specific issues such as how to read a law report (Chapter 4) or how to begin to construct an argument (Chapter 7). The material in this book has been used by access to law students, LLB students and at Masters level to explain and reinforce connections between texts in the construction of argument to non-law students beginning study of law subjects.

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The text as a whole will introduce students to the value of alternatives to purely textual explanations. An ability to comprehend diagrammatic explanations will be encouraged. Diagrams present another way of seeing, and the sheer novelty value of seeing the interconnections in a diagram can sometimes be enough to change confusion into comprehension. It is hoped that students will begin to draw them for themselves. The numerous diagrams used in this text are integral to the successful understanding of legal method as presented here. They have been specifically designed to: • provide a way of taking students to deeper levels of understanding; • give a basic description or blueprint for an area; • demonstrate interconnections between seemingly disconnected areas/texts/ skills. To emphasise the value of diagrams, Figure 1.1, below, sets out the disarmingly simple, broad structure of this text. Where specific materials are required to be read, these will be found in Appendices 1–3. Patient study will be rewarded by clear progress in substantive law areas. If students work through the text methodically, they will reach a place of understanding where they know how to competently present arguments. They can then develop these skills during the course of their studies. 1.1.1 The structure of the book Careful thought has gone into the structure of this book. If it is approached in order, students will obtain a systematic introduction to the skills vital to the academic stage of legal education. If students already possess some knowledge and wish to look at specific skills, then discrete chapters do stand alone. This book is, however, no substitute for English legal texts or texts in substantive areas such as European Community law. The book draws on a range of areas of law to demonstrate skill development, and to alert students to some of the confusions and mistakes easily made by new law students. It is a book that bridges the gap between substantive legal subjects and the skill base that needs to be acquired in relation to reading law, writing legal answers competently and engaging in competent argument construction. It will be of use within certain parts of legal method programmes. However, its overall practical approach will require supplementing with critical texts in the area of legal method. 1.2 LEARNING OUTCOMES By the end of this chapter, readers should: • be aware of how to use this book; • understand the range of skills required for competent legal study.

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Figure 1.1: overall structure of the book 1.3 SKILLS REQUIRED FOR COMPETENT LEGAL STUDY This text is about legal method. However, as noted in the introduction, a number of skills are necessary for successful legal study. This section identifies these skills. Studying is about learning: learning about self, academic subject areas and how to learn; new information about subjects, ideas, ways of seeing, arguing and thinking have to be understood, evaluated and used. The Shorter Oxford English Dictionary defines ‘learning’ as the obtaining of knowledge about a skill or an art through study, experience or teaching. In fact, study is defined in several ways, although perhaps the definition that sums up the view of many students is as follows: …a state of mental perplexity or anxious thought.

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• how study time is managed, ‘pre-planning the week’; • knowledge of course organisation; • knowledge of the lecture role, small groups timetable; class contact based; or knowledge of distance learning guides if you are taking a distance learning course or a self-study scheme; • the development of powers of concentration. Some students find it physically or emotionally impossible to sit down for two hours or even less and read in a useful, meaningful manner. Concentration is a skill acquired over time; it is a process; • organising a place to study; • setting up filing systems for: handouts; notes made from books, articles or lectures; subject specific problem questions, essay questions and past examination papers; • learning to be a highly competent user of the library facilities (real or Virtual’); • developing computing skills; • developing writing and reading skills (also comes under language and legal method skills); • developing the ability to answer questions (also comes under language and legal method skills). 1.3.1.2 Language usage skills Students need to be competent language users. This involves demonstrating a competency in the following areas: • grammar; • punctuation; • spelling; • vocabulary; • reading (primary texts of law and secondary texts about law); • writing (notes, summaries and extended academic writing); • interpretation of arguments by the analysis of the language in which the arguments are presented. Again, not all of these areas are specifically dealt with in this text but the bibliography makes useful suggestions for further reading. 1.3.1.3 Legal method skills These are skills concerning formal ways of understanding and analysing issues relating to the law. Much of this book is concerned with a few aspects of practical legal method; there are many more.

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Legal method skills include: • handling, applying and interpreting law reports; • handling, applying and interpreting UK legislation and delegated legislation; • handling, applying and interpreting European Community legislation, treaties generally, and human rights law; • argument construction and deconstruction; • answering legal questions, both problems and essays; • legal reading and writing skills; • oral argument skills. 1.3.1.4 Substantive legal knowledge skills (for example, criminal law and tort– which, of course, are dealt with in your discrete courses) So, as you can see, there are many skills to be acquired and these are set out in diagrammatic form in Figure 1.2, below, to give another way of seeing the interrelationships between the range of skills. Deficiency in one group of skills can affect performance in all areas. It is possible to divide sub-skills into even smaller constituent parts and the diagram does this merely to illustrate the complex nature of the undertaking of such studies. This complexity is not peculiar to the law either. If the course being undertaken was life sciences, again one would need similar generic skills of: • general study skills; • language usage skills (and perhaps foreign language skills); • scientific method skills; • understanding of substantive science subjects. Students who think that it is enough to memorise chunks of their substantive law subjects are unsuccessful. They do not understand the need for the skills required in the other main areas of general study skills: English language skills, method skills, critical thinking and the balance of expertise required among them. All of these skills need to be identified; students need to know which skills they have a basic competency in, which skills they are deficient in and which skills they are good at. Then, each skill needs to be developed to the student’s highest possible competency.

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THE POWER OF LANGUAGE

Language, like the air we breathe, surrounds us and, also like the air we breathe, rarely do we question it. However, at the outset of legal studies it is vital to take an opportunity to consider the potential language has for both the exertion of power

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Parliament that has inherited its power from the monarch, and in the body of the monarch itself which contains the promises of both God and people. Today, law also finds its sources in the legislative acts of the European Community and the decisions of the European Court of Justice and the European Court of Human Rights (religion will often refer to a sacred text). All our understanding is reducible to the ability to comprehend the expansiveness and limits of our language and the cultural boundedness of our language. It was Edward Sapir who most poignantly maintained that the limits of our language are the limits of our world. Over the years of socialisation, ‘ways of seeing’ are developed that are socially constructed by the limits of a particular language. Yet, as language is all around, there is a temptation to see it as a neutral tool, a mirror that tells it ‘like it is’. All language does is to give someone else’s interpretation of their belief, or their experience. It is no more, and no less, than a guide to social reality. What is seen as, or believed to be, the real world may be no more than the language habits of the group. It is, therefore, often a biased view. Languages also have their limits: if language does not have a word for something or some concept then that ‘something’ will not be seen nor that ‘concept’ thought. All language is, however, responsive to what linguists call the ‘felt needs’ of its speakers. Indeed, it is more likely that not only are thoughts expressed in words but that thoughts themselves are shaped by language. An example of felt needs can be given from the vocabulary of weather. Although the English are often said to enjoy talking about the weather, for many decades our essentially mild climate has provided us with the need for only one word for ‘snow’ (that word is ‘snow’!). In English there are several words for cold, but only one word for ice. By contrast, the Aztecs living in the tropics have only one word to cover ‘snow’, ‘ice’ and ‘cold’ as separate words were unlikely to be used. As English speakers, it is impossible to state that ‘cold’ is synonymous with snow. Coldness is a characteristic of snow, but there can be ‘cold’ without ‘snow’. We would not be able to understand how snow and ice could be interchangeable. In English it is not possible for these two words to become synonyms. However, Inuits have many different words for ‘snow’. Words describe it falling, lying, drifting, packing, as well as the language containing many words for wind, ice and cold because much of their year is spent living with snow, ice, wind and cold. The above is one small illustration of the relationship between living, seeing, naming, language and thought. Language habits predispose certain choices of word. Words we use daily reflect our cultural understanding and at the same time transmit it to others, even to the next generation. Words by themselves are not oppressive or pejorative, but they acquire a morality or subliminal meaning of their own. A sensitivity to language usage therefore can be most revealing of the views of the speaker. For example, when parents or teachers tell a boy not to cry because it is not manly, or praise a girl for her feminine way of dressing, they are using the words for manly and feminine to reinforce attitudes and categories that English culture has assigned to males and females. Innocent repetition of such language as ‘everyday, taken-for-granted’ knowledge reinforces sexism in language and in society. In this way language determines social behaviour. Language, as a means of communication, becomes not only the expression of culture but a part of it. The

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feminine, masculine vocabulary is rarely questioned, yet its usage creates expectations that determine male as the norm, female as the secondary. Verbal descriptions of sex and gender construct, not merely describe. Such construction of belief can be found transmitted through dictionaries. When defining ‘manly’ Webster’s Dictionary says that manly means: …having qualities appropriate to a man: open in conduct bold resolute not effeminate or timorous gallant brave undaunted drinks beer. [Give me a break!!!] For ‘womanly’ one finds: …marked by qualities characteristic of a woman, belonging to attitudes of a woman not a man. Female is defined by the negative of the other, of the male. In this way, sexism pervades the ‘objective’ nature of the dictionary, subordinating the female to the male. Sexist language pervades a range of sacred texts and legal texts and processes. Religion can be and is one of the most powerful ideologies operating within society, and many religions and religious groupings are hierarchically male oriented. The law maintains that the male term encompasses the female. Many religions maintain that man is made in the image of God; woman in the image of man. The female is once removed in both law and religion. Even in the 19th century, English law continued to maintain that the Christian cleaving of male and female meant the subjugation of the female and the loss of her property and identity to the male. English family law was based upon Christian attitudes to family and accounted for the late introduction of flexible divorce laws in the 1950s. Both law and Christianity reflect a dualism in Western society. The power of language is illustrated here. A pervasive sexism is made possible and manifest through language which, therefore, easily carries discrimination. So far, the discussion has centred on the construction of the world by, and through, language as written word. There are different ways of speaking and writing. People use the modes of speaking and writing experience and education notes as the most appropriate. However, language exerts power, too, through a hierarchy given to ‘ways of speaking’; through a hierarchy based on accent as well as choice of, or access to, vocabulary. People often change the way they speak, their accent and/or vocabulary. Such change may be from the informality of family communication to the formality of work. It may be to ‘fit in’: the artificial playing with ‘upper class’, ‘middle class’, ‘working class’, ‘northern’ or ‘Irish’ accents. Sometimes presentation to a person perceived by the speaker as important may occasion an accent and even a vocabulary change. Speakers wish to be thought well of. Therefore, they address the other in the way it is thought that the other wishes or expects to be addressed.

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It has been said that Britain in the 1940s and 1950s was the only place in the world that a person’s social status could be noted within seconds by accent alone. Oral communication and vocabulary was status laden. Accent revealed education, economic position and class. Today, particularly in certain professions (including law), regional accents can often be a source of discrimination. Such discrimination is not spoken of to those whose speech habits are different; only to those whose speech habits are acceptable, creating an elite. Given the variety of oral communication, accent, tone and vocabulary, it is clear that it is not just the language that is important but how it is communicated and the attitude of the speaker. Does it include or exclude? Written expressions of language are used to judge the ultimate worth of academic work but also it is used to judge job applicants. Letters of complaint that are well presented are far more likely to be dealt with positively. The observation of protocols concerning appropriate letter writing can affect the decision to interview a job applicant. So, language is extremely powerful both in terms of its structure and vocabulary and in terms of the way it is used in both writing and speaking. Rightly or wrongly, it is used to label one as worthy or unworthy, educated or uneducated, rich or poor, rational or non-rational. Language can be used to invest aspects of character about which it cannot really speak. An aristocratic, well spoken, English accent with a rich vocabulary leads to the assumption that the speaker is well educated, of noble birth and character and is rich; a superficial rationale for nobleness, education and wealth that is quite often found to be baseless. 2.4 CASE STUDY: THE RELATIONSHIP BETWEEN LANGUAGE, LAW AND RELIGION Religion, politics and, of course, law find power in the written and spoken word. Many aspects of English law remain influenced by Christianity. The language of English law, steeped in the language of Christianity, speaks of the ‘immemorial’ aspects of English law (although the law artificially sets 1189 as the date for ‘immemoriality’!). In many ways the Christian story is built into the foundation of English law. Theories of law describe the word of the Sovereign as law; that what is spoken is authority and power, actively creating law based on analogy just as God spoke Christ into creation. Since the 16th century, when Henry VIII’s dispute with the Holy Roman Catholic Church caused England to move away from an acceptance of the religious and political authority of the Pope, English monarchs have been charged with the role of ‘Defender of the Faith’. As an acknowledgment of modern pluralist society, there have recently been suggestions that the Prince of Wales, if he becomes King, should perhaps consider being ‘Defender of Faith’, leaving it open which faith; although the role is tied at present to Anglicanism, that Christian denomination ‘established by law’. English law recognises the Sovereign as the fountain of justice, exercising mercy traceable back to powers given by the Christian God. Indeed, this aspect of the

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monarch’s power, delegated to the Lord Chancellor, gave rise to a stream of English law known as equity, that area of law which rectifies the cruelties and injustices of the common law. An area of law where would-be litigants must prove their moral worth prior to the hearing of the case. It can be seen that it is the body of the sovereign that tacitly unites religion, law and politics. It is, of course, the Government that has acquired these powers in reality; the monarch is merely the symbol of their existence. English monarchs still retain, by law, the power to heal. The English system of secular justice, in terms of personnel, processes and rules, is steeped in the Judaeo-Christian justice as interpreted and mediated through English translations of the Greek translations of the Hebrew and Aramaic of the Bible. A Greek language whose vocabulary is shot through with the philosophy of dualism— light/dark, good/bad, good/evil, male/female, slave/free, gods/humans—a dualism not that apparent in Hebrew and Aramaic. This dualism has entered the law through language. So language is powerful, it enables the manifestation of the past in the present and the projection of the future into the present. Language, thus, facilitates easy discussion of complexities like time. Lawyers too, in a similar manner, have tried to prove that the integrity of the judge and/or legislator is carried in the words. A key problem in relation to the integrity of law is the maintenance of certainty despite the variability of language. Some legal doctrines relating to the interpretation of law deny that language has a flexibility, fearing that this would be a sign of its weakness and lack of certainty; others acknowledge the flexibility of language and look to the legislators intention. This, too, is a search for the mythical as legislation is changed for a variety of reasons during its drafting and creation stages. If language is seen to be too flexible, the law begins to look less certain. The root problem here is the language, not the law, yet the two are intimately connected, for the law is carried by the language; so is it not true that the law is the language? The following illustration of linguistic difficulties that concern translation, interpretation and application initially draws quite deliberately from religion to attempt to break preconceptions about language, and to illustrate the problems arising from the necessarily close relationship between language and law. There will be a return to law shortly. The Christian religion, rather than any other religion, is being considered because it is the religion that remains today at the core of English law. This is one reason why English law can have, and has had, difficulty with concepts from differing religious traditions that have presented themselves before the courts demanding acceptance and equality. Whilst English law states that it maintains neutrality in matters of religion and yet fails to resolve major tensions within it in relation to Christianity, discrimination remains at the heart of English law. The law’s understanding of Christianity has come from the collected texts that make up the Bible: texts that different Christian groups in England, Scotland and Wales went to war over in the 16th and 17th centuries. The wars were initiated and supported by differing political factions established after Henry VIII made his break with the authority, but not the theology, of Rome in the early 16th century. Henry VIII took for

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himself the title ‘Defender of the Faith’ and it has remained as a title of English monarchs since. Christianity has played an influential role within English politics since the 8th century. The laws of Alfred the Great are prefaced by the Decalogue, the basic ten commandments to which Alfred added a range of laws from the Mosaic code found in the old testament. So, even at this stage there was a strong Judeo-Christian stamp on the law. But it was the close connection between Crown and Church which developed after Henry’s break from Rome that allowed English law to be greatly influenced by Christianity This has led to the situation that now prevails in contemporary England that there is a close interdependency between the norms of Christianity, the law and the constitution. In the coronation oath, the monarch promises to uphold the Christian religion by law established. The Archbishop of Canterbury asks the monarch ‘Will you to the utmost of your power maintain the laws of God, the true profession of the Gospel and the Protestant reformed religion established by law?’ To which the Monarch responds ‘All this I promise to do’. No monarch can take the throne without making the oath. The next section brings together the issue of language, Christianity and law to draw out some of the problems of language. 2.4.1 Sacred texts, English law and the problem of language The sacred texts of the Old Testament and the New Testament collected in the Bible have been translated into numerous languages. Many misunderstandings of texts can be caused by mistranslations. English translations of the Bible are translations of translations. The Aramaic of the original speakers of the Christian message was written in Greek during the first century and from there translated into other languages. The historical Jesus did not, so far as we know, speak to people in Greek; he most likely spoke Aramaic. A few fragments were written in Aramaic, yet the English translations are made from the ‘original’ Greek! The Old Testament was written in Hebrew. However, the English translation is from an ‘original Greek translation’ of the Hebrew. To suggest why the source of translation might matter is also to illustrate the importance of other readings, other interpretations. Other readings and other interpretations are core issues for lawyers: what do these words mean for this situation rather than what do these words mean for ever. To illustrate this point within religion the first phrase in the first sentence from a Christian prayer known as the ‘Our Father’ or ‘The Lord’s Prayer’ will be considered. The English translation found in the ‘King James Version’ from the ‘original’ Greek will be compared to an English translation from an Aramaic version dating from 200 AD. The King James version is authorised by law for use by the Anglican church established by law. The King James Version of the Bible was developed after much bloodshed in the 17th century, and the Aramaic comparison is derived from Douglas Koltz who tried a reconstitution of the Aramaic from the Greek. This latter translation is, therefore, a little suspect as Aramaic is far more open textured than Greek (or indeed English) as will be discovered. However, the exercise provides a useful illustration of the flexibility of language, as well as the manipulation of language users!

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Figure 2.2: characteristics of legal language Many characteristics of legal language have their roots in the historical origins of legal procedure and it is now difficult to provide rational justification for them. They have become fossils, indicators of historical development. Other characteristics remain as justifiable attempts to reach precision in language usage. Lawyers want to be able to use a distinctive language that is precise, brief, intelligible and durable, but of course, they fail. Failure is inevitable. Lawyers are particularly reliant on being able to persuade by argument. Argumentation will be considered in Chapter 7. It is useful now, however, to spend a little time considering language as used for the purposes of persuasion. 2.5.2 The persuasive power of language: political and legal rhetoric Rhetoric was defined by Aristotle as the universal art of persuasion and, before him, Plato called it in typically sexist form:

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verbatim will be considered in order to explore poetic language, its function and its existence. The first extract in Figure 2.3, below, is from a speech by a civil rights activist committed to peaceful protest in 1960s America, the second and third extracts are from the summing up in an English libel case in 1983. 2.5.2.1 Extract 1: ‘I have a dream’: Martin Luther King (28 August 1963) Read Figure 2.3, below. This is a political speech, using religious imagery, poetic and emotional language to construct an argument challenging the American Government, calling upon it to honour the promises made in the Declaration of Independence. Obviously this speech has a particular context, ie, geography. Its immediate context is with American civil rights canvassing for race and sex equality laws. With regard to geography, many students may not properly take in the importance of the place where the speech is made. It is made at the Lincoln memorial. This is the memorial to Abraham Lincoln who went to war in the 19th century on the issue of slavery, won and secured the freedom of slaves in the Emancipation Declaration. So, the opening sentence most importantly draws attention to Lincoln:

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Third paragraph (1) ‘…to cash a check’ (2) ‘…the architects of our Republic’ (3) ‘…were signing a promissory note’ (4) ‘…every American was to fall heir’ (5) ‘…a promise that all men would be’ (6) ‘…guaranteed the inalienable rights of life, liberty, and the pursuit of happiness’ The idea could be expressed in non-poetic terms as follows: In addition to metaphor and simile the text also provides many examples of repetition. As a figurative device utilised in the text, it tends to add emphasis, to thicken the impact, aid the memory in recalling the argument or illustration, yet nothing is added except momentum which is poetic. Repetition which concerns calls for justice is also given a momentum that is emotionally charged, for example, in the fourth paragraph the following clusters of repetition occur:

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Another device used is particular to the Greek dualism favoured by the West, that of a range of illustrations based on opposites (set out in Figure 2.5, below). Figure 2.5: illustrations based on opposites Several devices carry the message of this speech, for example: • the emotive, poetic language; • the imagery of the opposites; • the image of the cheque and the fraud. All these build up to stating the core argument: that the emancipation agreement and the Declaration of Independence assured all Americans that they had rights that could never be taken away. Negroes had asked for those rights and had not been given them. America had unjustifiably denied these rights. This is a forceful argument made far more immediately forceful and poignant by the use of the poetic and emotive, passionate language. People may acknowledge the logic of an argument without agreeing to concede to demands. Persuasion can therefore be an essential device to encourage people to move from concept to action. Figurative Figure 2.6: imagery used in extract 1

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language is drawn from a range of sources (see Figures 2.4 and 2.5, above) and given a new target domain. But it is the hearer/reader who makes the ultimate connections. That such language is used in politics is not surprising. Politicians seek to persuade by all means possible and, as Aristotle remarked, persuasive language is used to effect by the introduction of figurative language. Such language is only one aspect of rhetoric, but, as this extract demonstrates, it is a powerful aspect. Lawyers and the judiciary will always state that emotional and poetic language has no place in the courtroom, in the language of law. Part of the rationale for this is that poetic and emotional language can exercise much power and in matters of innocence and guilt it is surely more just to rely on rationality not emotion. This view can be particularly traced back to the insistence by Francis Bacon who, in the 17th century, insisted that law must be seen to have an objective, scientific, rational methodology. However, it is impossible for there to be a pure science of law given its necessary reliance on language, and the imprecision of language. Therefore, often it is the appeal to the rational neutrality of the science of legal decision making that is misleading. Figurative language is often used in the courtroom despite the view that it is inappropriate, as extracts 2 and 3 illustrate (in Figures 2.7 and 2.9, below, respectively). 2.5.2.2 Extracts 2 and 3: Lord Justice Comyn in Orme v Associated Newspapers Group Inc (1981) Figure 2.7: extract 2—Lord Justice Comyn summing up in Orme v Associated Newspapers Group Inc (1981) (This case was a defamation case involving membership of the Unification Church. Orme is the UK Director of the church.) This is not a battle between the freedom of religion and the freedom of the press; two freedoms which we treasure greatly. This is rather a battle of right and wrong. Has the Daily Mail infringed the plaintiff’s right to a good, clean reputation, or has the plaintiff Mr Orme in all the circumstances no right to any reputation at all in this case because of what he and his organisation have done and do? Was the Daily Mail wrong about its allegations in its article? Was it wrong about its allegations during this case? Or was the plaintiff wrong; was the plaintiff giving a false picture? That is what it is, members of the jury, not a battle between freedom of the press and freedom of religion, but a battle of right and wrong. This extract is useful as an illustration of language techniques, repetition, figurative language (particularly, metaphor) in action; as well providing the basis for a necessarily limited discussion of what the function of these techniques may be. It is set out again below, with phrases and sentences numbered for discussion purposes.

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Figure 2.8: numbered format of extract 2 1 This is not a battle between the freedom of religion 2 and the freedom of the press; 3 two freedoms which we treasure greatly. 4 This is rather a battle of right and wrong. 5 Has the Daily Mail infringed the plaintiff’s right to a good, clean reputation, 6 or has the plaintiff Mr Orme in all the circumstances no right to any reputation at all in this case because of what he and his organisation have done and do? 7 Was the Daily Mail wrong about its allegations in its article? 8 Was it wrong about its allegations during this case? 9 Or was the plaintiff wrong; 10 was the plaintiff giving a false picture? 11 That is what it is, members of the jury, not a battle between freedom of the press and freedom of religion, 12 but a battle of right and wrong. Looking at Figure 2.8, above, the first two and last two sentences of the extract (lines 1, 2, 11 and 12) form a ‘sandwich’ comprising repetition of the main assertion that the case is not a battle between freedom of the press and freedom of religion. It is as if he is saying that the argument is so because ‘I say so, twice!’. Another example of repetition is found in the structure of the run of three rhetorical questions, both in terms of length and the use of amplification through alliteration: ‘was juxtaposed with wrong’ in lines 7, 8 and 9. The structure of the extract also demonstrates that the judge has the authority to impose that reading of events. For he says, in line 11, ‘This is what it is, members of the jury’. Who is the ‘we’ found in line 3? (a) Is it the royal ‘we’, symbolising the ultimate authority of the court? (b) Is it merely the judge? (c) Does it include judge and jury? ‘We’ is undeniably an inclusive term. It is suggested that, in this instance, the judge is talking in relation to the court and the law, as an official spokesman of the law. The choice of the word ‘battle’, as part of what turns out to be a continuing war metaphor which runs throughout the entire summing up, as a major organising theme that argument is war, is interesting. The word ‘fight’ or ‘skirmish’ is not chosen, but ‘battle’. The reference to battle puts the case ‘high up’ in a hierarchy of modes of physical fighting—for example skirmish, scrap, fight, battle. Battle denotes that opposing armies gather together with their greatest degree of strength to fight for as long as it takes for a clear victor. Of course, it is not unusual to find ‘fighting’ metaphors used to describe English trials. Because of their accusatorial nature (‘He did it judge.’ ‘No, he did it judge.’). Early in the history of English dispute resolution, trial by battle (a physical fight) was used to determine guilt and innocence as a perfectly acceptable alternative to trial by law.

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There were also other alternatives such as blood feud (speaks for itself) and trial by ordeal. At the latter, the Church was in attendance to oversee a range of tests that, to an observer, would look like the infliction of punishment after guilt had been determined. If the test was successfully passed—and it could only be ‘won’ if the Christian God intervened—the person taking the test was innocent. For example, in one form of trial by ordeal the person claiming innocence would plunge a hand into boiling water. If there was no blistering after a few days (highly unlikely, it was believed at the time, without supernatural intervention), the person was judged to be innocent. For those who feel adventurous, trial by battle remains on the statute books. Relief may be felt that trial by ordeal is no longer an option. Gradually, royal justice as trial by law took over through a combination of efficiency and threat by the crown. Later in his summing up, Comyn J refers to the battle as a ‘Battle Royal’. This connection could be taken as a reminder that the majority of battles from the 16th century onwards involving the monarch were indeed battles concerning religious differences. A serious event about right and wrong. The notion of ‘right’ suggesting ideas of ‘good’ and the notion of wrong suggesting ideas of ‘evil’. The text also discusses Christian cosmology and the existence of Satan. Throughout the text, the discussion of the battle between ‘good’ and ‘evil’ shadows here the religious. ‘Right’ and ‘wrong’ are also suggestive of the moral dimensions of the case. Whilst the English adversarial system lends itself to the use of such war imagery, the judge reserves the right to say what the battle is about and he clearly rules out the possibility that it is a battle between individual freedoms of expression (religious freedom and the freedom of the press). This is a classic example of setting boundaries by stating what is not legitimately involved and a classic illustration of an everyday activity in the court. No rationale is given for the boundaries and exclusion. Indeed the elaborate explanations given for exclusion could be evidence that strongly suggest that, insofar as the judge is concerned, the dispute before him is indeed a battle concerning religious freedom. Comyn J defines the area of dispute. He draws its boundaries without the slightest recognition of another interpretation of events. It is good to realise at the beginning of legal studies that the court has the power to draw boundaries without explanation, in this way. It is part of its exercise of power. In Figure 2.9, below, extract 3: Orme v Associated Newspapers Group Inc (1981) is set out. It contains 16 examples drawn from the totality of the summing up which runs to over 200 pages. They give the flavour of the summing up but have been chosen particularly to illustrate the use of repetition and alliteration.

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Figure 2.9: extract 3—Orme v Associated Newspapers Group Inc (1981) 1 ‘Are the moonies a malevolent menace?’ 2 ‘has the Daily Mail behaved dishonestly and disgracefully?’ 3 ‘that poor man, his poor wife, his poor son’ 4 ‘searching, perhaps more than we did, searching searching searching for the truth and for reason’ 5 ‘Decide it fairly, squarely, and truly’ 6 ‘mean, merciless, materialistic and money-grabbing’ 7 ‘bad press, bad deal, bad treatment’ 8 ‘matching, matching and mating’ 9 ‘ramp and racket’ 10 ‘devious and deceitful’ 11 ‘chanting, cheering and giggling’ 12 ‘A fraud, a fake, a hoax’ 13 ‘Is this a mad man or a bad man…or a megalomaniac’ 14 ‘human and humane people’ 15 ‘inherent badness, inherent greed’ 16 ‘Is he an old humbug, is he a hypocrite or is he a decent honourable man standing up manfully for an honourable bona fide religion?’ Even from the disconnected statements in Figure 2.9, above, it can be gathered that the dispute revolves around the character of a man or group and it is noticeable from the figurative language that there are more references to ‘bad’ qualities than to ‘good’ in relation to the qualities of this man or group—a characteristic feature of the entire summing up. It is clear that some authority needs to decide whether the individual or group is, therefore, good or bad. The examples illustrate quite clearly Comyns J’s preference for alliteration and repetition and the instances have been highlighted in bold. In addition, examples 12 and 13 are framed according to a classic argument within Christian theology concerning the claims of Jesus Christ to be the son of God. Is he mad, or bad or who he says he is?’ However, the two examples cited only allow for pejorative choices. Example 15 instills a sense of balance in that the third choice is ‘an honourable’ choice and, in that sense, correctly mirrors the theological argument referred to above. The summing up in Orme contains in excess of 162 metaphors. In many instances, there are several to a page, often repeated up to 50 pages later and expanded to become organising thematic metaphors for the text, the predominant themes relating to nature or war. Elaborate metaphors are repeated much later in the text in shorter format. However, the immediate effect is to recall the vividness of the original format. These three examples of figurative language interwoven with persuasion give an illustration of poetic language in action: • enhancing argument making it appear stronger (without cause); • thickening it without adding substance; • adding effect;

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• carrying weak substantive arguments; • making weak arguments appear strong. Later, when the mechanics of argument construction have been identified, it will be useful to return to these extracts and read them again with an eye on argument connected to figurative language. 2.6 SUMMARY This chapter has considered a range of issues to underline the importance of language in the study of law: • religion and language; • law and language; • the power of language to limit, express and shape the world; • law and figurative language. Law is carried by words: excellent English language skills are the beginning of basic competency in handling legal rules that are either derived from the common law, statutory activity or the European Community. Sophisticated language skills, coupled with meticulous attention to detail and a thorough understanding of the substantive field of law, ensures appropriate levels of analysis; for the skills of handling complex legal rules, communicated through language, constitute the major practical and intellectual skill of the lawyer. 2.7 FURTHER READING For those of you who have found the links between language and law, and the basic introduction to the power of language interesting, you may enjoy reading the following book which takes yet another perspective on the issue of language and law: Goodrich, P, The Languages of Law from the Logics of Memory to Nomadic Masks, 1990, London: Weidenfeld & Nicolson.

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READING AND UNDERSTANDING LEGISLATION

This chapter introduces ‘legislation’: the first of four sources of English legal rules discussed in detail in this book. The others are common law/case law (see Chapter 4), the law relating to European human rights and fundamental freedoms, and

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Figure 3.1: main sources of English law One factor which may seem difficult at first is getting to grips with these various legal rules. To competently handle primary texts of law, there is a need to: (a) locate and understand the various sources of the rules; (b) learn how they can be used to provide a resolution to disputes of a legal nature; (c) learn how to engage in applying and interpreting the rules; (d) understand the interconnections between the main sources of English law and in particular the relationship between cases and legislation. In order to give a context for the reading and analysing techniques that enable primary texts of law to be properly understood, it is necessary to describe briefly each of the main sources of law. These important sources of law are of course studied in more detail in courses on constitutional and administrative law (or public law), English legal system and European law and human rights. 3.3.1 The common law The phrase ‘common law’ has several meanings which vary according to context but as used in this text it means no more and no less than:

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all the laws made by judges relating to England and Wales There has been, and continues to be, much argument among legal philosophers as to whether judges actually make or create law out of nothing, or merely declare what the law has always been. Many judges state that they do not make the law, they discover it and thus declare what it has always been. This latter viewpoint is referred to as the declaratory theory of law making and these matters will be discussed in detail in other courses. This is a practical book about how to analyse the existing common law as recorded in the law reports and how to understand UK and European legislation. It is, therefore for the reader to come to a conclusion about who is right over the issue of declaring or creating. 3.3.1.1 The doctrine of precedent An English judge when deciding a case must refer to similar prior decisions of the higher courts and keep to the reasoning in those cases. If a previous case has dealt with similar facts and the same rules, then the present case has to be decided in the same way. This process is known as the doctrine of precedent. The doctrine is referred to by the use of a Latin phrase which is usually shortened to:

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It is said that among the advantages of the doctrine are the following: • it gives certainty to the law; • it is a curb on arbitrary decisions; • it is based on a notion of justice which maintains equality; • it provides a rational base for decision making. As is to be expected, many argue there are disadvantages of the doctrine: • it makes the law inflexible; • change is slow and convoluted; • it encourages a tedious hairsplitting tendency in legal argument. In addition, to understand the relationship between cases and legislation and the theory and practice of the doctrine of precedent it is also essential to understand the importance of accurate reporting of legal cases The importance of cases and the extent of the legal rule developed only become apparent after the case, and one needs good reports. If you cannot trust the reporting, then you cannot trust the law. 3.3.2 Legislation Legislation is the law made by Parliament or by individuals and groups acting on delegated parliamentary authority. The technically correct term for a piece of primary legislation is ‘legislative Act’. It is the dominant form of law making. In addition to creating legislation, Parliament can delegate, to another person or group, by an Act of Parliament, the power to create a limited range of laws for others. For example, powers can be delegated to: • a local authority; • a government minister; • a professional body. When this occurs, the legislation that is created is referred to as: a statutory instrument OR delegated legislation OR secondary legislation (for it is once removed from parliamentary power) The legislation giving the power to make such secondary or delegated legislation is referred to as the primary legislation, or the parent Act.

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3.3 Statutory interpretation: consideration of legislation by the courts Quite often, the law created by Parliament, as well as that created by delegated parliamentary authority, is considered by judges in courts. Most commonly, judges will be called upon to decide the precise meaning of a phrase or a word. Given the discussion above concerning the flexibility of language and the problems of interpretation, the difficulties that such consideration can cause are obvious. Issues of tremendous importance can be raised when a problem about the meaning of a statutory provision goes before a court. How do judges interpret statutes? The ability to have the final say in this manner gives judges, an undemocratic body, unprecedented power. Judges have to: • apply legislative rules to various fact situations; • decide the meaning of words and phrases used in the statute (and of course words can mean many things, and can change over time); • deal with judicial disagreement over the meaning of words. A range of purported rules of interpretation has been developed over time for use by judges: • there are three known rules of statutory interpretation, set out in Figure 3.2, below; • there are probably many unknown rules. For example, the ‘gut-feeling rule’! Figure 3.2: the three main rules of statutory interpretation

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4 UNDERSTANDING THE FORMAT OF A STATUTE 3.4.1 Introduction Having spent time discussing the power of language, considering issues of meaning and becoming alerted to the influence of figurative language, the importance of excellent language skills for the study of law should be clear. In its legislative format, the language of the law will be found to be: • in an unusual grammatical form; • potentially confusing; • tediously literal, dense text; • exhibiting scant punctuation; • liberally peppered with alphabetical and numerical dividers. To read legislation and work to understand it involves the reader in the act of interpretation. Legislation is read for a range of different purposes but they all involve interpretation. Interpreters of legal texts strive to ascertain what is being suggested at all levels of the text. Some interpret from a biased position, for example, the prosecution or defence. Others interpret from an open position, merely asking: what does this legislation provide for? How might these legal rules apply to this fact situation? What is the general social impact of this legislation? Does this legislation effectively address the issue? It can be argued that an interpreter is creating something which is new by their act of interpretation: an interpretation which is triggered by the text but which, in reality, bears no resemblance to the writers’ intention. This concept may be the basis of the school of art criticism which says: do not confuse the intellect of the artist with the beauty of the work created; do not expect the artist to know the meaning of the work! Interpreters of legal texts have to adapt their methods according to the type of document they are dealing with, the myth of ascertaining the real meaning of words always being held out as an attainable and sensible goal. Much of the authority of English courts lies in their ability to know what the law means and to apply it. This chapter will demonstrate the importance of students developing expertise in using various techniques for breaking into texts containing statutory legal rules, using a range of skills and methods in preparation for evaluating, analysing and critiquing them. All these skills require constant practice and reflection, and each type of legal text requires different methods of analysis. Practice steadily increases intellectual awareness, language appreciation, skills of prediction concerning interpretation difficulties and the ability to evaluate. Immediately the interconnections between a range of skills becomes apparent: (a) skills of language analysis: • sophisticated comprehension skills; • vocabulary skills; • grammar skills; • excellent reading and writing skills;

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(b) diagrammatic methods for organising texts: • tree diagrams; • flow charts; • algorithms; • Venn diagrams; (c) textual methods for organising texts: • tables; • paragraph analysis, linking and summarising; (d) identification of interrelationships between different types of legal rules; (e) knowledge of substantive law, eg, the law of contract. Many people do not know how to listen to, or read for, an argument. They hear or see words and do not know how to capture the potential meanings, arguments, truths and errors that they carry. They do not know how to split the text into its constituent parts to locate argument. Every skill that is necessary for the competent study of law is interconnected and most problems, whether purely theoretical (what is law?) or practical (what does this law mean for the defendant?) require the competent handling of interconnected skills of language use, legal rules and facts. Figure 3.5, below, demonstrates some of the complexities and interrelationships referred to in this introduction. It is important to internalise these issues. Those who grasp these interconnections and become competent handlers of rules Figure 3.5: skills required for competent legal rule analysis

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and facts are successful interpreters of rules, assessors of situations and excellent problem solvers. They are, by definition, excellent lawyers. 3.4.2 Types of legislation: primary and secondary Parliament authorises the creation of a range of different types of legal rule, as set out in Figure 3.6, below. They are all united by the fact that they are created in a fixed verbal form. Only those words were agreed by Parliament as containing the legal rule, not other words. A characteristic of such rules is that they rarely come as single units—they are usually a collection of rules. They also come with attached definitions, defences, modes of interpretation and guidelines for operation. Sometimes legislation is a reasonably well considered response to a particular issue such as: • consumer protection; • law and order; • European Community obligations; • family law. Sometimes, legislation is quickly created as a reaction by parliament to a crisis or public outcry or a one off situation, for example, terrorism. Of course, in reality, it is the government of the day that determines what issues are put into the parliamentary law making machinery. Figure 3.7, below, illustrates the major procedure for the creation of legislation. However, this text concentrates on the techniques for understanding such rules and the processes of interpretation that the courts, officials, ordinary people and law students follow in order to apply these rules. Although each piece of legislation responds to particular issues, the finer details of the situations that the rules will have to be applied to will vary enormously. Therefore, another characteristic of legislation is that it is drafted in a general way, in order, it is hoped, to be applicable to the widest possible range of situations. This often presents a major challenge to those drafting the legislation and to those who are subsequently called upon to interpret it. Another factor that must be borne in mind when considering the meaning and application of legislation is that it may have been changed in some way since enactment. For example, it may have been changed: • by parliamentary authority, through legislation amending it (adding to or subtracting from it) or by repeal (abolishing it); • by the House of Lords or the Court of Appeal determining the meaning of words and phrases used to make up the legal rule; UK courts have no power to amend or abolish legislation. But their power to interpret legislation can have a major impact on the application of the legislation; • by European Community legal obligations directly entering English law and conflicting with the legal rule.

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4.3 The internal layout of legislation: a statute There is a standard method of laying out statutes which, when recognised and understood, becomes a great help for analysis or evaluation. Most large statutes will be divided into parts for ease of reference. Each part will deal with different aspects of the overall collection of rules and their meanings. Each part contains sections which give more details in each area. Where appropriate, sections will deal with definitions. Sections can be further divided with the use of arabic numerals into sub-sections. Sub-sections are capable of further division, with the use of roman numerals, into paragraphs. Paragraphs can be further divided with alphabetical ordering into sub-paragraphs. At the end of the statute, there will often be schedules and these are numerically divided as well. These deal further with matters raised in the various parts. Schedules can only relate to previous sections in the Act. They cannot create anything new without an anchoring in the main body of the statute. All statutes also contain marginal notes, headings and sub-headings. These organising devices, however, are said not to form part of the law. Correct understanding of the relationship between parts, sections, sub-sections, paragraphs, sub-paragraphs, marginal notes, headings and schedules enables the general layout of the Act to be ascertained. Assistance is also obtained from the ‘long title’ of the Act, which looks more like a long sentence about what the statute is about! Central to the analysis of statutes is the ability to understand these intratextual relationships. Figure 3.8, below, sets out the general layout of statutes and Figure 3.9, below, is an annotated first page of the Human Rights Act. Figure 3.8: general layout of statutes

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A statute is divided into: Vocabulary • sections; Repeal— abolition of all or part of a • sub-sections; previous statute. • paragraphs; Amend— changing part of a previous • sub-paragraphs; statute. • Parts; • Schedules (at the end). Parliament can enact laws about anything—but a law may prove impossible to enforce. Legend records that one particular King of England, Canute, was humbled when he attempted to demonstrate his sovereign power by seating his throne on the beach and ordering the tide not to come in! For come in it did, much to his embarrassment. When approaching a statute as a new law student the most difficult task is understanding, at a basic macro- (wide) level, what the statute as a whole is striving to do and at the micro- (narrow) level what each section is saying. As proficiency is gained in handling statutory rules it will be found that it is not usually necessary to deal with the entire statute. The overall statute can be briefly contextualised and only relevant sections need to be extracted for detailed consideration, analysis, or application. However, ‘sections’, those micro-elements of statutes, will be all the more confidently analysed because, at any given moment, it is known how to relate any aspect of the statute to its general layout. Often, initial understanding eludes the law student. Doubts concerning the meaning of parts of the statute do not occur at the level of sophisticated analysis. They occur at the basic level of combining English language skills and legal skills to obtain foundational understanding. If doubts remain at this level, there can be no possibility of attaining sophisticated analysis! 3.4.4 Case study: breaking into statutes 3.4.4.1 Unfair Contract Terms Act 1977 To explore methods of breaking into statutes and understanding statutes at the macro- and micro-level the rest of this chapter will deal with a real statute, the Unfair Contract Terms Act (UCTA) 1977. Figure 3.10, below, builds on the abstract general layout of Figure 3.8, above, by customising it to fit UCTA 1977. This statute will continue to be used for demonstration purposes for the rest of the chapter. The full text of the statute can be found in Appendix 1. Study Figure 3.10, below, carefully. Note which parts are linked and which are not by following the lines and arrows. Reading the summarised headings constructs a basic overview of what the statute is about. Before considering how to break into statutory language in such a way as to be able to confidently précis whole sections for the purposes of such a layout, it is important to study the layout until it is familiar and comprehensible. There are no shortcuts; this takes time.

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Figure 3.11: general layout of the Unfair Contract Terms Act 1977—schedules To test your comprehension, answer the following questions by recourse only to Figures 3.10 and 3.11, above: (1) What areas of the statute need to be considered to find out if the exclusion terms in a contract are reasonable? (2) What areas of the statute need to be considered to ascertain the repeals and amendments made by the statute? (3) Where can the definition of dealing as a consumer be found? (4) If I want to bring an action under s 4 in Part I of the statute, what other sections may be relevant and would, therefore, need to be considered? This should have been a reasonably simple exercise and should also demonstrate both the use of such a layout and the importance of understanding how an entire piece of legislation fits together. The next stage in building up expertise in the basics of handling statutes is to turn to the minute detail and consider how to break into the text as a piece of comprehension. Let us, therefore, consider s 3 of UCTA 1977:

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indicators between s 3 and its sub-sections, paragraphs and sub-paragraphs. It can be seen to hang together like a two-dimensional mobile. The value of such a diagram is that the links are immediately apparent, simplifying the task of considering grammatical connections. Figure 3.12: relational diagram of s 3 Look back to the text of s 3 and read it. There are only two sentences in s 3. Sub-section (1) and sub-s (2) are both a sentence each. However the sentence making up sub-s (2) is 96 words long! The semi-colon in s3(2)(a) suggests an appropriate end to a sentence but for the fact that the drafter presumably felt it that it would be misleading as the intimate idealink desired with the rest of s3(2) might not be made. Let us look at these two sentences in s3(1) and s3(2).

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Remember that sub-sections within a section are intimately linked so that just as sub-s (1) appears to refer forward by use of the phrase ‘This section applies’, then a reader of sub-s (2) may need to refer back to sub-s (1)—it may not stand alone. Sub-section (2) is no exception as this cross-referencing takes place immediately in the first words of sub-s (2), ‘As against that party, the other’. Some simple questions begin the process of clarification. Q1: (a) Who is ‘that party’? (b) Who is the ‘other’? Answer: (a) That party is the ‘one’ who is ‘dealing as a consumer or on the other’s standard terms of business’ in s3(1). (b) Therefore, by process of elimination, the ‘other’ is the one who is not ‘dealing as a consumer or on the other’s standard terms of business’. Q2: How can we know the answer to Question 1? Answer: Because ‘other’ is specifically referred to in the first few words of sub-s (2). This other is: (a) first, the hidden ‘other’ party referred to by implication in sub-s 3(1) (that is, the one who is not dealing as a consumer); (b) secondly, there is the hidden ‘other’ party who actually writes the ‘standard terms of business’. There are, therefore, two categories of ‘other’. Q: So what is the subject of sub-s (2)? A: It is the ‘other’. Q: How do we know this? A: Because the person or company referred to as ‘that party’ has already been: (a) identified; and (b) defined in sub-s 1. Sub-section 2, therefore, is concerned with what that ‘other’ can and ‘cannot’ do. That is outlined in paras (a) and (b). It has taken time to explain the interconnections between sub-s (1) and the first seven words of sub-s (2) at a basic level. The full complexities of sub-s (2), paras (a) and (b) have not yet been touched. Luckily, once alerted to the types of issues to look out for, our minds are powerful tools and all of the foregoing discussion, questions and connectors will begin to be answered and noticed purely mentally and automatically whilst reading on and looking at s3(2). A point will be reached later in your studies when only a few points would actually be noted down, as your familiarity with language and structure will enable ease of reading. It is useful at this stage to turn again to the words of s 3 so far considered as laid out in Figure 3.13, below, and annotated.

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Figure 3.13: annotation of s 3 The discussion of ‘breaking into’ the text has been tedious because it is necessary to set out in minute detail what the experienced reader and analyst scans in seconds, virtually instantaneously, so that the process can be examined. Language skills (in terms of grammar and general/specialist vocabulary) are united with an understanding of drafting, structure and scope of the law. Figure 3.15, below, sets out s 3 in full; study it carefully and be sure that textual intraconnections are understood. Note that, as in Figure 3.13, above, certain words have been outlined. This is to highlight the fact that the key to understanding statutory language and structure is to pay strict attention to grammatical clues as already indicated. In addition, it is vital consistently to look for the prepositional links. Words such as: (a) to; or;

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4.6 Section 11 task Now try another difficult section: s 11 of UCTA 1977 (which sets up what has come to be called the reasonableness test) and start to put into practice what it is that you have learned. Figure 3.16, below, sets out s 11 and the guidelines for the application of the reasonableness test as set out in Schedule 2 of the Act. Figure 3.16 is a complicated diagram and, as expertise develops in the reading of statutory material, much analysis is done mentally and summarised notes taken. Confidence can result in the ability to paraphrase main provisions in order to catch intratextual references alone. Figure 3.17, below, is such a summarised version of s 11 together with Schedule 2 of UCTA 1977. Or, to put it another way, Figure 3.17 is a summarised version of Figure 3.16. Given the relationship between law cases and statutes, it would also be useful to add, initially in list form only, to a ‘section tree diagram’ any cases dealing with aspects of the section—cases which may define the meaning of words or phrases or which apply aspects of the section. Figure 3.18, below, merely adds one case, the case that will be the subject of consideration in Chapter 4: George Mitchell v Finney Lock Seeds (1983). First of all just read s 11 of UCTA 1977 set out in the box on p 55, below, followed by Schedule 2 to UCTA 1977 set out in the box immediately following. Take some time to digest the narrative. You could also try to turn s 11 and Schedule 2 into diagrams. When you have put the time in then, and only then, turn to the diagrams and follow them through.

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5 SUMMARY This chapter has been concerned with giving a broad introduction to the layout, interpretation and methods of applying statutory rules. As such it has therefore concentrated on the issue of handling rules, and the areas where competent English language skills are an integral part of understanding the legislation. It has also introduced the systematic use of diagrammatic methods to break into legislation. This chapter provides a firm foundation for skills introduced later in the book concerning the interpretation of legislation by judges (Chapter 4), the European dimensions of law (Chapter 5) and the essentials of argument construction in Chapter 7. 3.6 FURTHER READING If you are a law student you will be studying the areas covered in this chapter from different perspectives in English legal system and constitutional (or public) law courses. However, you may find the following texts useful reading. They are excellent texts relating to both the theoretical and practical aspects of legal method: • Sychin, C, Legal Method, 1999 (3rd edn due 2003), London: Sweet & Maxwell, Chapters 7 and 8. • Twining, W and Miers, D, How To Do Things With Rules, a Primer of Interpretation, 4th edn, 1999, London: Butterworths, Chapters 7 and 8.

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READING AND UNDERSTANDING LAW REPORTS

The few legal disputes that cannot be resolved by negotiation between lawyers or last minute settlements outside the court are determined by the judges in the trial courts, and in even fewer cases, decided in the appellate courts by the senior

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Many legal systems throughout the world have a rule of thumb adherence to the doctrine of precedent. However, few keep to the concept of binding precedent as rigidly as the English legal system. Indeed, it has been said that it is more difficult to get rid of an awkward decision in England than it is anywhere else in the world. 4.2 LEARNING OUTCOMES By the end of this chapter, readers should: • understand the basic rationale for the doctrine of precedent; • be able to explain what the doctrine of precedent is; • understand the difference between the theoretical dimension and the practical dimension of the doctrine of precedent; • be able to competently read a case and prepare a case note; • understand the relationship between reliable law reporting and the doctrine of precedent; • understand the relationship between statutes and cases; • be able to distinguish between year books, nominate reports, general and specialist series, and official reports; • understand the constituent parts of the ratio of a case. 4.3 THE RELATIONSHIP BETWEEN LAW REPORTING AND THE DOCTRINE OF PRECEDENT The only way of being able to keep successfully to the doctrine of binding precedent is to have a reliable system of law reporting. The competent production of volumes of reports of past cases is indispensable to the operation of the doctrine. Reliable law reports have only been available in England since 1865 although there are a range of fragmentary law reports going back to the 12th century, which are known as yearbooks. Reports existing in the Yearbooks cover the period from the late 12th century to the early 16th century. However, it is not always possible to discover if the report is of an actual case or a moot (an argument contest between lawyers). This makes them an unreliable source and also the detail that was given and the quality of the reports varies considerably. Some reports record outcome, but not facts, others record facts and outcome, but give no reasoning process. Reports also exist in the nominate (named) reports dating from the late 15th century to 1865. By the 19th century, a court-authorised reporter was attached to all higher courts and their reports were published in collected volumes again by name of reporter. By 1865, there were 16 reporters compiling and publishing authorised reports. They were amalgamated into the Incorporated Council of Law Reporting and the reports were published in volumes known as the Law Reports. These reports are checked by the judges of the relevant case prior to publication and a rule of citation has developed that if a case is reported in a range of publications, only that version printed in the Law Reports is cited in court. However, the accuracy of reports pre-dating the setting up of the Incorporated Council of Law Reporting in 1865 cannot be guaranteed.

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Surprisingly, there are no official authoritative series of law reports in England to equate with the Queen’s Printers copy of an Act of Parliament. The Stationery Office is responsible for publishing revenue, immigration and social security law cases. However, traditionally, law reports remain in the hands of private publishers. Today, there are numerous, often competitive, private publishers. Although there are no official series of law reports, the courts do respect some reports more than others. A long established, conventional rule is that a law report, if it is to be accepted by the relevant court as an authority, must be prepared by and published under the name of a fully qualified barrister. The greater accuracy of modern reporting, and the vetting by judges, necessitates longer delays before the cases are published. Also, the Law Reports only cover 7% of the cases in the higher courts in any given year. Interesting issues are: (a) who selects which cases to report? (b) how are they selected? Editors select the cases for inclusion in the series of law reports. These are highly trained lawyers, well acquainted with precedent and the likely importance of cases. During the past 150 years publishers of law reports have been generalists or specialists. Some law reports are annotated, particularly for the use of practitioners, others left without annotations, introductions, etc. In addition to reported cases, the Supreme Court Library contains thousands of files of unreported cases. In 1940, the Lord Chancellor’s Department prepared a report: The Report of the Law Reporting Committee. The Committee considered that, after editors had made their choices, ‘What remains is less likely to be a treasure house than a rubbish heap in which a jewel will rarely, if ever, be discovered’ (p 20). (Note the poetic language that forcefully carries the point.) Of course, today, there is a vast range of electronic retrieval systems for accessing details of thousands of unreported cases. This has caused its own problems and there was a legitimate concern that courts would be inundated with cases that did not really contain any new law, but which had been retrieved from electronic sources. In the case of Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192, the House of Lords took the step of forbidding the citation of unreported cases of the civil division of the Court of Appeal without special leave. The rule remains, however, that to be an accepted version that can be quoted in court the report must have been prepared and published by a barrister. When law students read law reports they must ask: (a) is this report the most authoritative version available? (b) are there fuller versions? (c) if unreported, does this case add to the law? Figure 4.2, below, sets out the types of reports available for the law student to consult.

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4 THE THEORETICAL DIMENSIONS OF THE DOCTRINE OF PRECEDENT Many legal theorists and practitioners have attempted, over the years, to give precise definitions of the English doctrine of precedent. Unfortunately for law students, there are no simple shortcuts to understanding the practical everyday working of the doctrine of precedent. However, a few theoretical ground rules can be established, which at least place the operation of the doctrine of precedent within a context: (1) judges at all levels of the court hierarchy must follow decisions of the higher courts; (2) judges in the higher courts must follow previous decisions of their own courtor that of a higher court if the case was similar, and does not fall into any allowed exceptions. It is accepted, however, that in the Court of Appeal, a more relaxed attitude can be taken in relation to criminal appeals; (3) since a Practice Statement by the Lord Chancellor in 1966, judges in the House of Lords have the freedom to decline to follow their own previous decisions (Practice Direction (Judicial Precedent) [1966] 3 All ER 77). This freedom is exercised sparingly—but in a more relaxed way in its criminal jurisdiction than in its civil jurisdiction. Much depends on the definition of similar. How similar must a previous case be before it becomes a precedent to be followed in a current case? Notice, again, how everything turns on language and the meaning of words. The facts of cases usually vary in some way Law is about life and life rarely replicates itself exactly, but trends and degrees of similarity can be noted. The following issues need to be dealt with: (1) must the law be similar now as then? (2) what happens if there are small fact differences? (3) what if there are a range of small differences—is the case sufficiently similar? There are no definitions of similar for the purposes of the doctrine and this is where the judge can bring subjective influences into the decision making processes. He or she can determine what ‘similarity’ is. In addition, how can the reason for the case be extracted? Similar cases must be decided in accordance with the same reasoning process. The actual doctrine as it has developed refers to keeping to the reasons for deciding past cases. How does one find the reasoning? Wambaugh, a theorist working in America in the late 19th century, suggests that one way of ascertaining the reason for the decision (ratio decidendi) is to look for a general rule of law in the judgments and test whether it is foundational for deciding the case by translating it into the negative form and seeing if the case would then have been decided differently. In other words, he suggests locating the ratio by using a negative method as illustrated by the flow chart in Figure 4.3, below. Wambaugh emphasises the search for a rule.

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Another famous legal theorist, Goodhart, wrote an influential essay ‘Determining the ratio of a case’ which refers far more to the ‘principle’ in the case than the ‘ratio’ (1930) 40 Yale LJ 161. He emphasises facts: (a) what are the material facts as found by the judge? (b) what is the judge’s decision? (c) unless there is a new material fact (or there are some missing material facts) a future court, depending upon its place in the court hierarchy, and thus its obligations under the doctrine of precedent, must follow it. Goodhart does consider the rule, or what he calls the principle of the case. He gives a thorough discussion of finding the principle of a case, which revolves around the tension between a range of issues and he also appears clearer about where he considers the principle cannot be found. A major problem with Goodhart’s suggested method, an aspect of which is set out in Figure 4.5, below, is that he places rather a lot of emphasis upon the facts. Although it can be said that reading a judgment in the light of the facts of the case is a core requirement of the doctrine, there also needs to be attention given to the way that the case is: (a) argued; (b) pleaded (exactly how have the lawyers formally lodged the complaint?); (c) reasoned, in relation to other precedents. Every judgment has to be read in the light of previous and, if relevant, with a view as to how subsequent cases may be affected. Even taking these two methods together, problems remain: (a) what should an interpreter do when there is a decision without reasons? Can the ratio be inferred? (b) what can be done with the diversity of forms of judgments? While it is true to say that the ratio decidendi of a previous case comes from the language of a judge, the interpreter (as seen from Chapter 2) can bring new meanings. In the appellate courts, depending upon the importance of the case, three, five or seven judges can sit. Each can give judgment, although often a judge says ‘I concur with my learned colleague, Lord Bridge’ or some such similar phrase. At times there may be one or more judgments disagreeing with the majority view that a certain litigant should win the case. In such cases, there is no doubt that each reasoned judgment has a ratio. But can it be said that there is a ratio of the court? There is, of course, no problem where it is clear that the majority agree with the same statements of the application of the law. But what if the different judges agree on outcome and disagree on reasons for the outcome? This can happen. Consider Figure 4.4, below.

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Figure 4.4: same outcome for different reasons How can these differences be reconciled? There are therefore a range of situations which complicate statements about the bindingness or strength of a given precedent. Lack of agreement among judges in relation to the reasoning process can weaken the precedential value of the case, because judgments in cases can result in different scenarios: For example: (a) the majority of judges agree to dismiss/allow the appeal on one ground. A minority of judges agree with the majority as to outcome, but base their decision on a different ground. In this situation, the ratio of the majority is binding and strong. The ratio of the minority is entitled to weighty consideration in a future case; (b) the majority agree to dismiss/allow the appeal but there is no common ground as to why the appeal has been dismissed or allowed. In this situation, there is no clear majority in favour of any ratio. The case, therefore, lacks authority for the narrowest interpretation of the ratio. But it is impossible to state clearly how such a case is viewed other than to treat it as a weak authority. When there is a strong original ratio that is wide, there is the most scope for later interpretation to mould the law. If, eg, case A has just been decided, the ratio for which the decision is binding being found in the actual opinion of the judge, in later cases (case E) which seek to interpret and apply case A, the judge may have to interpret case A in the light of the new set of facts before him and also interpretations given by subsequent case B, C and D. What seems to happen is that, when a judge is considering Case E currently before the court: (a) the judge states what is considered to be the ratio in the earlier Case A; (b) the judge then considers that ratio in the light of the facts in Case A; (c) the judge also considers the observations made by judges in later Cases B, C and D concerning Case A; (d) ultimately, the judge formulates a rule of law based on a number of cases—the original Case A and Cases B, C and D—and applies this composite reasoning to Case E before the court.

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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.

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A lawyer may need to argue convincingly that the part of the previous judgment that is being relied on by an opponent is not part of the reasoning process leading to judgment; that it was an ‘aside’ comment, based on a hypothetical situation (technically referred to as an obiter dictum comment). On the other hand, perhaps the only argument a lawyer has to support the client’s position is an aside comment. If the comment was made by a senior judge in the Court of Appeal or the House of Lords, and it is a relevant comment on the exact circumstances of the present case, then it could be argued that this is an important indicator of what that court would do if such a case came before it. Cases in the higher appellate courts, the Court of Appeal and the House of Lords, contain more than one judgment. Usually, there are three in the Court of Appeal and five in the House of Lords, but there can be more in an important case. Here, the lawyer’s task in ascertaining the strength of a precedent in a previous case may be more difficult. Often, there will be a dissenting judgment. This judgment can eventually, through a range of other cases, come to represent the majority view of an area of law. If the judge who is dissenting has a particular reputation for excellence, then the judgment will be seriously considered by those coming to read the case for the precedential value of the majority judgments. In time, the argument presented by the dissenting judge, the minority view, may be accepted as the more appropriate way forward. English law, as created, developed and refined in the courts, does not resemble a straight line of development; rather, it is a winding road of distinctions, consideration of majority and minority views, determinations according to similarity, more judgments, then more distinctions. Change is slow but English law remains flexible. 4.5 THE DOCTRINE OF PRECEDENT IN PRACTICE: HANDLING LAW REPORTS When law cases in any area are considered, it is important that the reader knows several things about the case for future usage. These are set out in Figure 4.7, below. Most importantly, law reports have a standard layout. Carefully consider Figures 4.8 and 4.9, below. 4.5.1 What happens if a judge does not like a precedent? Some judges are better than others at ‘dodging’ precedent: If a judge of reasonable strength of mind thought a particular precedent was wrong he must be a great fool if he couldn’t get round it. [Lord Radcliffe (House of Lords) in an interview with Alan Patterson (1984).] Yet, contrast this with the following quotation: I am unable to adduce any reason to show that the decision which I am about to pronounce is right—but I am bound by authority which of course it is my duty to follow. [Per Buckley LJ, Olympia Oil and Cake Co Ltd v Produce Brokers Ltd (1915) 21 Com Cas 320.]

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In the same way that religious texts can be said to be literature in terms of both prose and poetry, so the law report can also be considered as a literary text. The illustrations and aside comments made by judges in their judgments may be complex, relating to politics, history, art, religion, literature and so on. Quotations may be given in different languages and reports can sometimes be liberally peppered with Latin legal maxims (see Figure 4.10, below, for some of the most common). Law reports are complex pieces of written English and, therefore, of double difficulty to students in terms of their legal content and, generally, in terms of their sophisticated English usage. All judges have different ways of expressing themselves but they all share seniority within the English legal system. Unlike other jurisdictions there is no such concept as the career judge. Promotion to the ‘bench’ occurs as recognition of years of proven ability, usually, as a barrister. However, lower ranks of the judiciary are now appointed from successful solicitors. Therefore, although law students are very new to the enterprise of law, they are called upon to engage in sophisticated evaluation of the highly competent analysis of the English legal system’s most senior judges, who combine years of successful practice with excellent skills in language usage and technical substantive law ability. These judges may discuss several complex issues simultaneously, applying and interpreting the law to the facts of specific disputes. The student is, therefore, confronted by excellent and sophisticated written texts. What is required is for the student to obtain: • a good grasp of the relevant area of substantive law; • an appreciation of issues relating to language usage; • an understanding of the doctrine of precedent in practice; • a familiarity with statute; • a sound foundation in the mechanics of argument construction to make initial sense of the text. Judges are social actors with their own preferences who attempt to act fairly in judgment despite themselves and their natural inclinations. However, at root a judgment is a subjective text and a student’s or a lawyer’s interpretation of that text is also subjective. Any interpretation should be tested against the text and evaluated to see if it is a plausible reading. As noted already in Chapter 2, the language of the law tries to be injected with scientific objectivity, but flounders because of the imprecision of language. 4.5.2A case study of George Mitchell (Chesterhall) Ltd v Finney Lock Seeds [1983] 2 All ER 732–44 One law report will now be considered in depth in order to demonstrate one method of reading, note taking, evaluating and using a case to construct arguments. It will, initially, be approached as a sophisticated English comprehension exercise. This will demonstrate how far one can get by meticulous reading in the absence of detailed knowledge of a particular area of law (in this case, the law of contract). No assumptions will be made concerning the reader’s knowledge of the law of contract.

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Of the three main areas of the law of contract identified in Figure 4.11, above: (1) making it; (2) living it (keeping it); (3) ending it, the case under consideration concerns ‘ending it’, and of the various ways noted, it concerns ending it by breaking it due to a wrongful act. In other words, it is concerned with what should happen under the contract to compensate the claimant. (The claimant is the person or company complaining and bringing a case in the civil courts.) Usually, contracts contain provisions that lay down the compensation payable to one party if the other party breaks the contract by not doing what he or she says will be done. The contract in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds is no exception. However, to ascertain properly what the main issues are in the case it has to be broken into with some determination. This case has been specifically chosen for several reasons: • it is short; • there is only one main, agreed judgment by Lord Bridge; • the issues discussed are highly complex; • the case involves consideration of both common law rules and statutory rules operating side by side; • it links into the work already discussed in Chapter 3; • it links into Chapter 6. 4.5.2.2 Stage 1: the basic reading Any student successfully breaking into this case and comprehending the methodology will be able to use methodology to break into other cases. The case study requires the reader’s active engagement and asks for certain tasks to be carried out. It is divided into four stages. Stage 1 involves skim reading, stage 2 involves checking the skim reading and making a first note of Lord Bridge’s judgment, stage 3 spends time considering the issues in the case, stage 4 is concerned with a paragraph by paragraph summary of the judgment of Lord Bridge. This stage also involves a ‘statutory diversion’ looking at the statutory references brought up in the case. The final section of this chapter discusses case noting and uses George Mitchell as the case to be noted. (1) Turn to Appendix 1. (2) Read the case of George Mitchell (Chesterhall) Ltd v Finney Lock Seeds as quickly as you can. If this takes you more than 60 minutes you need to work on your reading strategies generally. (3) As you read, note how paragraphs begin and end, as these are often indicators of the progression of discussion or argument. (4) Carefully register differences in language as you move from the information packed first pages through to the different judgments. • Be aware of the use of any technical language. • Look up non-technical words you do not understand in a good dictionary.

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(c) the judgment of Lord Bridge; (d) list words and phrases that you do not know, check them out in a dictionary or in the text for sense, and make a full summary of the judgment in no more than 300 words making sure you include the discussion or issues. DO NOT CONTINUE OVER UNTIL YOU HAVE COMPLETED (1)–(5). WHEN YOU HAVF FINISHED, CONTINUE BELOW… • Did you find all the facts and issues? • Did you correctly ascertain the procedural history? Check your summary against the diagram in Figure 4.12, below. This diagram was constructed by a careful reading of the headnote together with the introductory summaries made by the law reporter of the decisions in the earlier courts and in the court deciding the actual report being read. These explanations are the reporter’s summaries and do not form part of the law. Sometimes it has been known for the headnote to actually be wrong. So it is always best to read the judgment to double-check the facts, issues and procedural history.

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So how can one begin to understand these issues? The immediate problems are: • unfamiliar vocabulary; • unfamiliar legal references; • complex grammatical structure; • dense (perhaps boring) text. The first task is to annotate the above text from the judgment to reveal the areas of lack of understanding, words and phrases that need defining and the areas of interconnection. This is similar in method to the annotation of s 3 of the Unfair Contract Terms Act (UCTA) 1977 in Chapter 3. This is done in Figure 4.13, below. But remember that where a statute is concerned the actual words are fixed in law by the statute. It is the law in a fixed verbal form. When dealing with a judgment any common rules contained and constructed in the judgment are not fixing rules with specific words. It is said that decisions of judges state rules in an unfixed verbal format. Figure 4.13: the two issues as set out by Lord Bridge—issue 1

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Figure 4.14: the two issues as set out by Lord Bridge—issue 2 As can be seen, a number of matters needing to be clarified arise from the mere identification of two issues. Note that Bridge gives the two issues a short-hand label: (1) the common law issue; and (2) the statutory issue. However, students often read and re-read without appreciating how to move from lack of understanding towards understanding. They do not notice how words can be clarified by an appreciation of the intertextual links and which words or phrases could be clarified by recourse to textbooks in the area. Again the two issues are found in a paragraph of Lord Bridge’s judgment. Reading carefully paragraphs in the immediate vicinity can assist in understanding. The responsibility of the reader is to read with understanding, therefore stopping to clarify points along the way. It is useful here to ensure that the procedural history of this case is understood. This will enable the student to obtain an appreciation of the differences in opinion by the various judges who have considered the case before its arrival in the House of Lords. Lord Bridge discusses the procedural history and it is set out in the headnote. The case was won by the plaintiffs (the buyers) in the trial court (the High Court) and the defendants (the sellers) appealed to the Court of Appeal, where

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they are called the appellants, and again lost. They then appealed to the House of Lords, where they also lost. There was a lot of money at stake: the difference between the £201.60 that the seeds cost as awarded by the Court of Appeal or the £90,000+ that the trial judge awarded. Consider, for a moment, what you have read and what you know so far. Does it seem fair to you that George Mitchell won? If so, why? If not, why not? So far we have considered: (a) Procedural history. (b) Facts. (c) The operative rules of law: • It is known that both common law rules and statutory rules are relevant to the case. • Further, it is known that if the common law rules are found to apply in the seller’s favour he still has to jump the hurdle presented by the statutory rules. • Recall, if there is a clash between common law rules and statutory rules, the statutory rules prevail. (d) A verbatim account of the two issues in the case (however, these are probably not fully comprehended yet, despite Figures 4.13 and 4.14, above!): • It is clear that Lord Bridge will argue through each of the issues. • If the appellants succeed in issue 1 they may still fail overall if they fail over issue 2. (Can you understand why? The answer is in the first sentence of text setting out ‘the second issue’. See Figure 4.14, above.) • Logically, one would expect Lord Bridge to commence with the arguments over issue 1, the common law issue, as this is the gateway to an argument over issue 2 which will only take place if issue 1 is decided in the appellant’s favour (and this is contentious limitation clause what he does). (e) Understanding the clause. This is set out in Figure 4.15, below. Until all of these matters are linked and understood it is not possible to fully comprehend the reasoning in the case. Now take time to consolidate the information we have so far and return to the judgment of Lord Bridge, concentrating on his arguments concerning issue 1 (Appendix 1, p 310, para 3). 4.5.2.5 Stage 4: breaking into Lord Bridge’s speech You will have already read Lord Bridge’s speech by now. It is also now appreciated that the arguments in this case are quite complex and the initial method of breaking into the text for understanding is to look at each paragraph. Paragraphs are intended to convey a new idea. So each paragraph represents an idea or a cluster of ideas. Careful ordering of paragraphs is essential in a piece of writing if a sense of progression is to be maintained. Therefore when reading for understanding a précis of each paragraph begins the process of understanding.

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Paragraphs must not be skipped over, as the task in hand is to ensure that each paragraph is understood. Each paragraph is a stepping stone, leading the reader to the end of the text and the conclusion of the argument. Yet often a student will read too quickly skipping over words and phrases that are not understood. As paragraphs relate to each other, any points not understood in a paragraph should be able to be cleared up in earlier or later paragraphs, unless they contain information assumed to be known to the reader. So if you find references you do not understand cast your eyes back to see if this has already been clarified. One of the most important connections in a text is the relationship between paragraphs. The paragraphs in the text of Lord Bridge’s speech will be numbered and summarised. As expertise is acquired, such summaries will normally take place in the head of the student with only a few paragraphs noted in rough. The paragraphs in the full text of the case in Appendix 1 are also numbered in square brackets (eg, [1]). This allows you to easily access the full text of the paragraph and compare it with the summary. I suggest you keep a hand in Appendix 1, read the relevant paragraph from the original and then read the summary. Did you understand the original? If not—why not? LORD BRIDGE’S SPEECH • Facts. The seller delivered the wrong cabbage seed to the buyer who, as a consequence, had a failed crop with grave financial consequences. The contract of sale limited the seller’s liability to a refund of the price of the seeds. • Issues arise from three sentences in the conditions of sale. • These are set out and identified. • States he will call the contentious limitation clause ‘the relevant condition’, and will refer to each sentence as a clause, so clauses 1, 2, 3 (see Figure 4.15, above). If a student reads carelessly this important explanation will be overlooked then the phrase ‘relevant condition’ and ‘clauses 1, 2, 3’ will cause confusion when they are used later in the text to refer to his divisions of the contentious limitation clause. • Sets out the two issues as the common law and the statutory issues. • Gives details of relevant legislation.

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• Discusses the finding of the trial judge that under the common law the ‘relevant condition’ could not be relied upon by the sellers. The reason being the seed delivered was ‘wholly different’. (As we have already noted issue 2 (see Figure 4.14, above), the statutory issue, need only be dealt with if issue 1 (see Figure 4.13, above) is decided in favour of the sellers.) • Discusses the finding of Denning LJ in the Court of Appeal. Denning LJ thought the common law issue should be decided in favour of the sellers. He said that the wording of the condition was sufficient to cover the situation. Kerr and Oliver LJJ decided the common law issue against the sellers. • Kerr LJ’s reasoning was that the condition would only cover them for defects in the ‘correct’ named seeds. Not for delivery of the wrong seeds. • Oliver LJ’s reasoning was that the condition did not cover the breach because it only happened through the negligence of the seller. • The Court of Appeal, however, was unanimous in deciding the statutory issue against the sellers. • Lord Bridge discusses the way that Denning LJ traced the history of the court’s approach to such conditions. The conditions being ones that limit’ or totally ‘exclude’ a contractual party’s liability for any damage caused. • Lord Bridge picks out two relevant cases (Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 101 and Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1983] 1 All ER 101) and uses these to explore the common law issue. Note that the judge is beginning to deal with cases decided previously and commenting upon them in relation to whether he is bound by the doctrine of precedent.

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• Lord Bridge brings up the phrase ‘fundamental breach’. Depending on the positioning of the student in a contract course, this phrase will be known or unknown. The word ‘fundamental’ suggests an important, core, foundation breach or break of the contract. The essence of the points made are that: the Photo Production case made it clear that, even if there is a finding of fundamental breach of contract by one party, like the seller here, this finding does not stop a party, the seller, relying on limiting or excluding conditions in the contract; the Ailsa Craig case drew distinctions between: limiting clauses; exclusion clauses. Basically, limitation clauses should not be judged according to the strict principles applied to exclusion clauses, although they remain to be construed contra proferentem against the party claiming their protection (contra proferentem means construed strictly/against the party relying on it). • Lord Bridge criticises the trial judge, Parker J, and the Court of Appeal judge, Oliver LJ, for trying to go back to the position. • Before the Photo Production case, Lord Bridge said a fundamental breach does not stop a party relying on exclusions or limitation clauses. • Lord Bridge points out that the condition applies to seeds sold and indeed seeds were sold! • Lord Bridge says that the condition unambiguously applies to the present situation.

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• Lord Bridge says that Kerr LJ (in the Court of Appeal) in finding for the seller had in fact misinterpreted what Lord Fraser had said about The Canada Steamship v R [1952] 1 All ER 303 in the Ailsa Craig case! This is an excellent paragraph for demonstrating the way in which judges argue about other cases, following, distinguishing, overruling or stating the precedent or a case erroneously. • Lord Bridge decides the common law point in favour of the sellers in agreement with Lord Denning in the Court of Appeal. • Lord Bridge turns to discuss the ‘statutory’ issue. We now begin to understand the reference to ‘the Act’ in issue (2) as set out by Lord Bridge at Appendix 1, p 310, para 2. • The modified s 55 of the Sale of Goods Act 1979 is set out. • The Sale of Goods Act 1979 was a statute that was pure consolidation. (This means that it merely collected together the existing law and put it in one place.) • Modified s 55 preserves the law between 18 May 1973 (the date that the Supply of Goods (Implied Terms) Act came into force) and 1 February 1977 (the date that the Unfair Contract Terms Act 1977 came into force). • Section 55, sub-ss (1), (4), (5) and (9) are set out. Students need to study s 55 carefully to ensure that they understand what it is providing for and that they can follow the discussion of it by Lord Bridge. So, let us stop here for a moment… for a statutory diversion.

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6 STATUTORY DIVERSION: THE MODIFIED s 55 OF THE SALE OF GOODS ACT This is an appropriate moment to look in more detail at s 55 of the Sale of Goods Act 1979 and to experiment with ways of breaking into it. To understand properly the development of the reasoning of the court on the statutory issue, it is vital to spend time understanding the basic layout, interconnections and effect of the provisions. Often, students do not pay sufficient attention to such matters and then wonder why they cannot understand discussions! The purely textual explanation is complicated and needs to be read in conjunction with the statutory provision. Two diagrams will follow: the first (Figure 4.16, below) sets out s 55 in its entirety according to the method used in Chapter 3 for s 11 of UCTA. This enables the parts to be seen as a whole and the interconnections are apparent. It will be similarly annotated.

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Now, the paragraph by paragraph consideration will recommence. • Lord Bridge observes that the contract in question is not a consumer contract but ‘any other contract’: This information is obtained by a careful reading of s 55(4) plus knowledge of what a consumer sale is; look back at Figure 4.16 and re-read s 55(4). As for consumer contract recall the phrase as it was referred to in Chapter 3 when UCTA 1977 was dissected. This contract is commercial not consumer and therefore falls under the second heading in s 55(4). • Lord Bridge further observes that cl 3 of the relevant condition exempts the seller from liability for breach of ss 13 and 14 of the Sale of Goods Act. This is a good example of the need to have an active dialogue with the text. Clause 3 is the third sentence of the relevant condition and the relevant condition is the condition limiting liability. How is this known? Because on p 310 Lord Bridge states (para 2 (see précis above)): issues arise from three sentences in the conditions of sale. These are set out and identified. He states he will call this the relevant condition, and will call each sentence a clause, so cll 1, 2, 3. See also Figure 4.15, above. • Lord Bridge goes on to say that ss 13 and 14 provide that: items sold by description should correspond to the description; items sold should be of merchantable quality, and that cll 1 and 2 substitute for the full protection of the legislation the limited obligation to replace seeds or refund price of seeds. • Lord Bridge sums up that the statutory issue depends on whether cll 1 and 2 are ‘fair and reasonable’ according to the criteria as set out in s 55(4) and (5). • Lord Bridge gives some general guidelines about how the judiciary should respond to the powers given to it in s 55. Students may be tempted to skip over this paragraph, but valuable information is given concerning judicial interpretation of statutes. One of the reasons that the case is important is that for the first time the House of Lords is being asked to consider a modern statutory provision that gives the court power to decide to override contractual provisions limiting or excluding liability that have been agreed between the parties at

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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.

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• Lord Bridge goes on to say that his answer in relation to the question is not necessary for the outcome of this case and declines to answer one way or the other! It is interesting to note that if he had categorically answered the question, yes or no, it would be a clear example of an obiter dictum statement in a strong case by a senior judge and may well have been used in argument in a later case where this issue is at the core of the case. • Eventually, Lord Bridge turns to the ‘application of the statutory language’ to the case. • He states that only s 55(5)(a) and (c) are relevant. (This is the moment to re-read s 55(5)(a) and (c) in Figure 4.16, above, if you do not remember the provisions. Otherwise, one loses sight of the argument!) • As to s 55(5)(c), he says of course the buyer knew of the condition as it was standard throughout the trade. • As to s 55(5)(a), he states that there was evidence that similar limitations had never been negotiated with representative bodies. • Witnesses for the appellant said that it had always been their practice in genuine justified claims to settle above the price of the seeds but that, in this case, settlement had not been possible. Lord Bridge said ‘this evidence indicated a clear recognition…that reliance on the limitation of liability imposed by the relevant condition would not be fair or reasonable’. • Lord Bridge concluded, therefore, that wrong seed was supplied due to the negligence of the applicant’s sister company. Seedsmen could insure against the risk of crop failure caused by the wrong supply without materially increasing the cost of seeds.

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• Lord Bridge felt no doubts about the decision of the Court of Appeal over statute. • Lord Bridge refers to an earlier point in para 15 that it is wise to ‘refrain from interference’ in matters of legitimate judicial difference (see Appendix 1, p 313, para 15). • ‘If I were making the original decision, I should conclude without hesitation that it would not be fair or reasonable to allow the appellants to rely on the contractual limitation of their liability.’ • Appeal dismissed. A quick review of the paragraphs begins to show the patterns of argument delivery. Re-reading the paragraphs looking at the statutory diagrams (Figures 4.16 and 4.17, above) allows the argument to be reviewed whilst looking at the entire provision. The paragraph approach has also allowed the common law issue and the statutory issue to be isolated. Reviewing Figure 4.12, above, dealing with the facts, issues and procedural history enables the appreciation of the differences between the reasoning in the Court of Appeal and the House of Lords, although both courts reached the same decision. It should be possible at this stage to identify the precise rationale behind the court’s view of the common law issue and the statutory issue. In relation to the statutory issue, it should be possible to pinpoint precisely the statutory areas of relevance and how the court dealt with the issue. A summary of this information has been put into diagrammatic form in Figure 4.18, below. As proficiency is developed, it is possible to read carefully and move straight away to a diagrammatic representation, although, ultimately, a brief conventional textual note should be made to supplement the diagram. Brief, of course, as you will have seen, does not mean easy or simple!

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7 CASE NOTING It is at this point that a case note can be made. The case note has to contain all of the information that enables the case to be used. One of the most important tasks of a law student or, indeed, a legal professional is the ability to read a case and make a usable record of it. The cases that are reported are invariably important as non-important cases remain as court transcripts. The case note must note all of the important issues for the application of precedent, such as: • date of court and formal citation; • hierarchy of court, judges; • facts; • issues before the trial court; • identification of applicable legal rules; • issues, if different before appellate court(s); • procedural history of the case (in what other courts has the matter been heard); • judicial reasoning as to: why those rules applied to those facts in that way. A case note cannot be used if it only records the facts and not the rationale for the outcome as everything in law depends upon the legal reasoning. A case can only be properly used in legal argument when the reasoning of the court is both known and understood. Many students misunderstand the purpose of case noting and think that it is sufficient to have the facts of the case and know the rules concerned. This is a little like having the ingredients for a cake and knowing that, when heated, something changes, but not knowing what to do with the ingredients. It is often not even necessary to rehearse the facts of a case in an argument in which the case is used. What is important is to know points of similarity and difference in facts so that adjustments can be made to the reasoning processes in applying the earlier case to the later situation. If strenuous efforts have been made to understand a law report thoroughly, the following benefits will be achieved: (1) the case note will contain all the ingredients to enable it to be competently applied to any problem question or incorporated into any relevant essay; (2) understanding of the topic and arguing techniques will be increased; (3) competent execution of assessments and examinations (if your analysis of the questions asked is not wrong!)

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CASE NOTE George Mitchell (Chesterhall) Ltd v Finney Lock Seeds [1983] 2 All ER 737–4 4 COURT HOUSE OF LORDS JUDGES Lords Diplock, Scarman, Roskill, Bridge of Harlow, Brightman DATE 23, 24 May and 30 June 1983 FACTS The respondents purchased 301b seeds from the appellants for £201.60 in December 1973. The invoice contained a standard limitation clause stating that the only liability of the appellants was replacement of the seeds or a refund of the cost of the seeds. All other liability was excluded. The respondent’s crop failed. The wrong seed and seed of an inferior quality had been delivered due to the negligence of the appellant’s sister company. ARGUMENT The respondents argued that the limitation clause did not apply: (1) at common law, because the wrong seed was delivered and it was not of merchantable quality; (2) under statutory provisions, because the clause was not fair and reasonable under s 55 of the Sale of Goods Act 1979; the limitation clause in the contract was unenforceable at law according to s 55(4). PROCEDURAL HISTORY Trial Parker J: The limitation clause was not operative at common law because of the negligence in delivering the wrong seed. Court of Appeal On appeal by Finney Lock Seeds: Denning, Kerr, Oliver LJJ. Kerr and Oliver LJJ held the limitation clause could not be relied upon because: (1) on its true construction the condition did not apply at common law because loss due to the negligence of sister company and the seed was wholly different than delivery of the wrong seed (Kerr and Oliver LJJ); (2) also, applying s 55 it would not be fair and reasonable (Note: comment by drafter of case note: Having said the clause did not apply at common law to negligence there was of course no relevance in dealing with the statutory issue which is only operative if the clause is deemed to apply at common law!); (3) Denning LJ held, in the minority, that the limitation clause could apply at common law. However, it was not a fair and reasonable clause under s 55 of the Sale of Goods Act 1979.

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DECISION IN CASE House of Lords (all judges agreed with the opinion of Lord Bridge.) Lord Bridge (1) The common law issue That the limitation clause was operative and could effectively limit liability. The wording of the condition was unambiguous in this regard. Limitation clauses do not have to adhere to the strict principles laid down for complete exclusion clauses (see Ailsa Craig (1983)), although they must be clearly expressed and must be strictly interpreted against the party relying on them (contra proferentem). Decision partly supported by the following precedents Photo Production Ltd (1980). Even in cases of fundamental breach, (core) limitation clauses are available to be relied upon by one party. Ailsa Craig (1983). There is a difference of approach appropriate between limitation and exclusion clauses. Limitation clauses do not have to be so strictly interpreted. (2) The statutory issue Even though the clause was enforceable at common law, after considering s 55(4), (5)(a) and (c), Lord Bridge decided that the common law provision was overridden by the statutory obligation in s 55(4) for such clauses to be fair and reasonable otherwise. The clause was therefore unenforceable. The grounds for deciding clause unfair and unreasonable were that: (a) in applying s 55(5)(a), it was clear that in the past appellants had sought to negotiate a settlement that was higher than the price and had not relied on the limitation clause; (b) supply of seed was due to the negligence of appellants sister company; (c) appellant could easily have insured against loss. Obiter dicta (a) The phrase ‘to the extent that’ discussed and said to mean ‘in so far as’ or ‘in the circumstances which’. Section 54(4). Although this is not relevant to this case it is possibly an important obiter dictum. (b) There may be some mileage in discussion concerning whether there can be partial reliance on limitation clauses again. Although this is not relevant to this case, possible important obiter dicta. (c) The phrase ‘in all the circumstances’ in s 55(5) means one should take account of circumstances at and after time of the breach.

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(d) Appellate courts in a case like this, where there is room for legitimate judicial difference, should refrain from interfering unless it is considered that the decision reached was based on the application of wrong principles or the case is clearly wrongly decided. Decision of court Appeal dismissed. 4.8 STATUTORY INTERPRETATION: THE RELATIONSHIP BETWEEN CASE LAW AND LEGISLATION 4.8.1 Introduction The discussion of George Mitchell (Chesterhall) Ltd v finney Lock Seeds (1985) has indicated what happens when a problem about the meaning of a statutory provision goes before a court. In this section, attention will be given to statutory interpretation in court. The courts and tribunals have, as one of their most important tasks, the application of legislative rules to various fact situations. They must decide whether these legislative rules apply to given situations. Already in this text there have been several illustrations of words not meaning what they appear to mean. Despite the supposed certainty of statutory rules, rules in ‘fixed verbal form’. Words can change over time, and courts will disagree over the meaning of words. Choices of meaning, not perceived by the drafters, may lie latent in the words and are drawn out in court in a manner defeating intention, narrowing, extending or making meaningless the ambit of the rule. Many people need to apply statutory rules, often this application will be purely routine but sometimes doubts will arise. Such doubts may, or may not, reach court. How do judges set about deciding the meaning of words? Reference has already been made to the three rules of statutory interpretation. The literal, the mischief and the golden rules (see Figure 3.2, above, in the introduction to Chapter 3). These rules it should be remembered are rules of practice not rules of law. Do judges really use the rules of statutory interpretation? If so, which rule do they use first? Judges rarely, if ever, volunteer the information that they are now applying a certain rule of interpretation. Often, judges look to see if there can be a literal meaning to the words used in the disputed statutory rule. However, there is no rule that states that they must use the literal rule first. Holland and Webb (1994) quite correctly assert that interpretation is more a question of judicial style than the use of interpretational rules. Indeed, should a student attempt to use the rules of statutory interpretation as a guide in the interpretation of a statutory word or phrase, the uselessness of the rules as an interpretational tool becomes immediately apparent. However, as a justificatory label they may have a function. As students gain experience in reading judgments they notice vast differences in judicial styles. Some judgments seem to be based on a blow by blow analysis of precedents and earlier usage of words, others seem based on tenuous common sense rationales. Decisions based on the external context of the statute will be identified. This covers situations where judicial decision making appears to be based on issues of

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public policy, a particularly favoured device in the 1960s and 1970s. Reliance on public policy rationale can be referred to as the ‘grand style’ or the ‘teleological’ approach. Cases may also turn on the form of the statute itself, that is, its internal context. Much of the analysis engaged in here is at the level of the internal. However, never forget the external world context. Judges who rigidly adopt the internal approach are often referred to as formalists. Such judges say that they do not create law, they find it. They find it by following the pathways of the rules of statutory interpretation by moving within the document this is the statute. A closer consideration of the simplest definitions of the rules of statutory interpretation enables the classification of the literal rule as the formalist approach and the mischief rule as the teleological approach. The golden rule, of course, allows one to ignore the formalist approach of the literal rule. It is most likely to result in a teleological approach as the judge, through the golden rule, is released from formalism! (See Figure 3.2, above, in Chapter 3.) 4.8.2 Case study of Mandla v Dowell Lee Read the extract from the judgment of Lord Fraser in the case of Mandla v Dowell Lee [1983] 1 All ER 118 in Appendix 1 and then read and reflect on the following discussion based upon the reading of the judgment as giving examples of formalism and a teleological approach. The case of Mandla v Dowell Lee involved the interpretation of legislative provisions in the Race Relations Act 1976 and went through both appellate courts (the Court of Appeal and the House of Lords) surrounded by much publicity. The crux of the case concerned whether Sikhs constituted an ethnic group and could claim the protection of the Race Relations Act 1976. The Court of Appeal decided that Sikhs did not constitute a racial group and could not claim the protection of the Race Relations Act. It was an unpopular decision, taken two days before Lord Denning MR’s retirement as Master of the Rolls (the senior judge in the Court of Appeal) and caused rioting in the streets before a quick reversal of the Court of Appeal’s decision by the House of Lords. The particular legislative provisions were ss 1 and 3 of the Race Relations Act 1976. Section 3 was the gateway provision. If this section gave Sikhs protection, then the Act applied and the claim under s 1 could be made. More particularly, the entire case revolved around the interpretation of three words. The meaning of the word ‘ethnic’ in s 3 and the meaning of the words ‘can’ and ‘justifiable’ in s 1. The case is a good example of the movement from theoretical rules to their interpretation and application in reality; a movement from rules in books, to the legal construction of reality. It is also a good illustration of the power of the appellate court to determine the meaning of legislation. The facts of the case were that Mr Mandla, a Sikh, wanted his son to go to a private secondary school. The child was offered a place which was subsequently revoked when the father informed the school that the child would not remove his turban as school uniform rules required. The headmaster stated that the rules concerning uniform were rigid and that other Sikh pupils removed turbans during

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school hours. Mr Mandla reported the matter to the Commission for Racial Equality (CRE) who took up the case. The CRE alleged that the son had been unlawfully discriminated against, either directly or indirectly, on racial grounds, in that he had been denied a place at the school because of his custom of wearing a turban. 4.8.3 The meaning of the word ‘ethnic’ in s 3 of the Race Relations Act 1976 The case raised a number of issues. The first issue, which was of tremendous importance to the Sikh community, was whether the Race Relations Act was the relevant statute to take action under. The Race Relations Act states that it is unlawful to discriminate against another on racial grounds in the areas covered by the Act. One of these areas is education. To bring an action, it had to be proved that Sikhs were a racial group. Section 3 of the Act defines racial grounds as: …a group of persons defined by reference to colour, race, nationality or ethnic or national origins. The main argument centred around whether Sikhs fitted into the word ‘ethnic’ as other words and phrases in the list in s 3 were accepted as not applicable. The trial court found that Sikhs were not a racial group and the appellant appealed to the Court of Appeal and came before Lord Denning. The Court of Appeal had two choices. It could take the teleological approach—looking at the wider context—considering the history behind the legislation, the mischief that it was designed to rectify; or it could choose a formalist approach, considering the text, the word or words, and their possible meanings in a more literal sense. Lord Denning had always, in essence, taken a teleological approach. He had, for much of his legal career as a senior judge, fought against blind literalism. He had always fought for the right to ‘fill in the gaps’ left in legislation. Indeed, his career was often based on the right to take the broader teleological view rather than the narrow, literalist view. Surprisingly, he chose, in this case, to take the formalist approach, to stand by the literal meaning of the words. He discussed the history of the word ‘ethnic’ (its etymology). Certainly, the etymology of the word is fascinating; however, why did the legislators put in the word ‘ethnic’? Did they do so after scanning its etymology? Of course, it is not known. Yet, an interpretation based on the history of a word obviously presumes that, yes, the legislators did consider the etymology of the word. Otherwise, there is no point in the court doing so. When constructing legal rules in fixed verbal form, language is of the utmost importance. Thought is given to the best words to be used to ‘fix’ or ‘stick’ the rule, so that contrary interpretations cannot be reached by courts; and so that the mischief to be tackled is tackled. However, as noted in Chapter 2, the flexibility of language will not allow it to be permanently fixed. The choice of words is often determined by: (1) a desire to make it impossible for judges to change the meaning; (2) a desire to make a major policy change as uncontentious as possible;

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(3) a desire to compromise, or a need to compromise, to ensure that major aspects of the draft statute get through the legislative process, and are not blocked by the opposition within, or external to, the government. In the Court of Appeal in Mandla v Dowell Lee, Lord Denning looked at the history of the word ‘ethnic’, charting its meaning and usage through three editions of the Oxford English Dictionary (1890, 1934, 1972). However, he always argued that words do not and cannot have a literal meaning and yet, here, in a highly contentious case, he traced the history of words. He noted that, in its original Greek form, ‘ethnic’ meant ‘heathen’ and was used by the translators of the Old Testament from Hebrew to Greek to mean nonIsraelite, or gentile. Earlier in this text, in Chapter 2, we considered the issue of the use of the phrase ‘the original Greek’. He identified the first use of ‘ethnic’ in English as describing people who were not Christian or Jewish. Lord Denning referred to the 1890 edition of the Oxford English Dictionary to confirm this etymology. He then referred to the 1934 edition, stating that its meaning had, by then, changed to denote ‘race, ethnological’. This is hardly surprising as the great anthropological expeditions of the 1920s and 1930s introduced the idea of ethnography as the descriptions of unknown groupings of people. His Lordship stated that the 1934 version indicated that ‘ethnic’ meant ‘divisions of races’ and, as far as he was concerned, this was right. This is, of course, a highly dubious and subjective viewpoint. But a judge has the power, via language analysis, to make a choice between what is, and what is not, right. Indeed, this is the judge’s task. The court has to decide. Finally, he referred to the 1972 version of the dictionary, which gave a wider definition of ‘ethnic’. It was this definition that was relied upon by the plaintiff’s counsel. Here, ‘ethnic’ was defined as relating to: …common racial, cultural, religious, or linguistic characteristics, especially designating a racial or other group within a larger system. Lord Denning then turned to discuss ‘origins’ for, as used in s 3 of the Race Relations Act, ‘ethnic’ appears in a small phrase including the word ‘origins’ (‘or ethnic or national origins’). Turning again to the dictionary, noting its usage with parentage he decides that it meant, as in previous case law, ‘a connection arising at birth’. ‘Origin’, he said, therefore meant a group with a common racial characteristic. His Lordship reconsidered the entire phrase as used in s 3: …a group of persons defined…by reference to…ethnic…origins. He concluded that the group must be distinguishable from another by a definable characteristic. Re-reading his judgment in the Court of Appeal, it is noticeable that he constantly used the words he is supposed to be defining in the definitions. Yet, Lord Denning’s normally preferred technique was the teleological, the mischief or the purposive rule. He may have reasoned in a manner more in keeping with the Race Relations Act if he had used his favourite technique of the purposive approach.

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Having defined ethnic origin, the next task was to apply that definition to Sikhs to consider whether they could be said to be ‘people defined…by reference to… ethnic origins’. Lord Denning launched into a potted and largely inaccurate history of the word ‘Sikh’ and the people who follow the teaching of Guru Nanak. Again, in a subjective and arbitrary manner, Lord Denning decided that: (a) Sikhs can only be distinguished by religion, and therefore (b) they are not defined by ‘ethnic origins’, and therefore (c) they are not a racial group, and therefore (d) it is not illegal to discriminate against Sikhs. Lord Denning’s entire reasoning process rests on dictionary definitions and homespun inaccurate conclusions. He went on to criticise the CRE for bringing the case, stating that schools should not be interfered with when they properly manage their affairs. Oliver LJ in the same court said that the dictionary shows ‘ethnic’ to be a vague word and he doubts whether only the most general assistance can be obtained from dictionaries. Can one discern a community in a loose sense among Sikhs, he asked rhetorically? Without providing evidence, he says no, customs among Sikhs are so disparate they cannot be said to be members of an ethnic group. However, the essence of the discrimination legislation is that the ‘man in the street’ is the one to discriminate. The court concluded that Sikhs were not an ethnic group. The CRE appealed to the House of Lords. The House of Lords reversed the decision of the Court of Appeal, allowing the appeal. The House of Lords found that, to be an ethnic group, a group must be regarded by itself and others as a distinct community with, for instance, a shared culture, history, language, common descent or geography, customs, religion. Not all of these factors need be present. The main judgment given was by Lord Fraser. He discussed the views of Lord Denning and Oliver LJ in the Court of Appeal. He dispensed with the dictionary arguments and the suggestion that ethnic denotes race by saying, in favour of a teleological approach:

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He finds support for his views in a line of New Zealand cases which maintain that it is important how a group regards itself, and is regarded by others. He says that, not only does he like this definition, but: …it is important that courts in English speaking countries should, if possible, construe the words which we are considering in the same way where they occur in the same context. He concludes that, applying his broader definition of ethnic origin, Sikhs are a racial group on ethnic grounds. This opens the gateway for the court to consider if indeed the boy had been unfairly discriminated against by the school which had refused to admit him unless he removed his turban. The answer to this issue revolves around the meaning of two words in s1(1)(b) ot the Race Relations Act 1976. These words are ‘can’ in s1(1)(b)(i) and ‘justifiable’ in s1(1) (b) (iii). Section 1(1) (b) is a potentially difficult section and is set out tor consideration below:

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There is a major difference between saying • (i) or (ii); and saying • (i) and (ii). However, as has been mentioned above, students often do not read the connectors ‘and’, ‘if’, ‘but’. Now consider the connectors between sections, sub-sections, paragraphs and sub-paragraphs in Figure 5.1, above. The following pattern is obtained: s 1 (1) …if (a) …or (b) …but (i) …and (ii) …and (iii) is… What can be ascertained from this seemingly abstract pattern? • Something in s1(1) will be the case if something in para (a) or (b) is the case. • Paragraph (b) is tied to sub-paras (i), (ii), and (iii) by the connector ‘but’. • Sub-paragraphs (i), (ii) and (iii) are all tied together by the two connectors ‘and’ which occur at the end of sub-paras (i) and (ii). After the study of s 1, both in terms of connectors and substance, it is appropriate to return to the discussion of the meaning of the words ‘can’ and ‘justifiable’, which were the subject of deliberations in the House of Lords. Recall, we have only been considering the judgment of Lord Fraser. 4.8.4 The meaning of the word ‘can’ in s1(1)(b)(i) The school’s argument was that ‘can’ simply meant that someone could do something physically. So, of course, it is always physically possible to remove a turban. However, the religious, conscientious, cultural, psychological dimensions of behaviour are thereby ignored. If the Race Relations Act is to have any impact, it cannot be the object of such simplistic interpretation. Lord Fraser stated that ‘can’ does not merely mean ‘can physically comply’. ‘Can’ means ‘can comply’ in practice, given the constraints of ethnic origin. If restrictive interpretations were to be placed on a word as seemingly innocent as ‘can’, it would be possible to undermine the entire purpose of the Act. Herein lies the power of the interpreter of language which, at root, will always remain flexible. 4.8.5 The meaning of the word ‘justifiable’ in s1(1)(b)(ii) Sub-paragraph (ii) of sub-s (b) in s 1 maintains that a condition is discriminatory if it cannot be justified on grounds other than race. The school argued that it

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wanted total equality among its pupils in all areas including dress. Therefore, the ‘no turban rule’ was a necessary aspect of uniform, discipline and equality. The school insisted that it was non-sectarian yet the headmaster also maintained that the school wished to project ‘a Christian image’. Therefore, by implication suggesting that the turban was also said to be a challenge to the Christian faith. The headmaster also objected because it was a manifestation of the appellant’s ethnic origins. Lord Fraser found that the school could not justify the condition on grounds other than on ethnic origin and that this was illegal under the Act. In addition, Lord Fraser stated that Lord Denning’s criticism of the CRE was completely unjustified. This brief discussion of one case reveals the different approaches to statutory interpretation. Context and perhaps judicial attitudes dictate the rules used. Rules of interpretations are not referred to. Perhaps the best indicator of what is going on is a careful consideration of what is being said and what ‘styles’ of interpretation seem represented by the tone of the judgment. Each judge does indeed have a personal style. Interpretational problems can never be solved by the neat application of interpretational rules, even worse perhaps the rules do little or nothing to solve problems. At the risk of heresy, perhaps all that purported interpretational rules do is simply to justify solutions. As mentioned above, there is rarely one right answer, only a range of more plausible and less plausible outcomes, varying according to interpretational styles. Judges use their creativity in working out a solution according to criteria which must be rational either in reality or in argument. They invariably go beyond the text when constructing answers. Lord Denning, for example, moved from dictionary definitions to subjective assertion. Often, judges say no more than ‘this is the answer because I say so’. Judges, as previously noted, can be classified as formalists or contextualists. It is possible to begin to guess as to which rules the judges think they are using. It is good also to accept that it is not always possible to understand what they are arguing, and to realise that, at times, judges themselves are wrong and not themselves too sure of the appropriate outcome. This is what makes comprehension of the methods of statutory interpretation, and the use of precedents, so difficult. It is essential to realise the limits of a supposed scientific approach and the limitless possibilities that open up when the illogical bridges from one set of rationale to the next are located and the power of language appreciated. As the judges engage more with the European dimensions of interpretation they are being forced to engage more often with the teleological approach used in European cases. As discussed in Chapter 5, the Human Rights Act 1998 states that judges in deciding cases on the enforcement of European Convention rights must have regard to the case law and jurisprudence of the European Court of Human Rights. In addition by virtue of the European Communities Act 1972 (as amended) English courts are required to take notice of the decisions of the European Court of Justice. It is highly likely that this consistent engagement will result, over time, in a profound change to the tradition of statutory interpretation within the English legal system.

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9 SUMMARY This chapter has been concerned with introducing, in some depth, common law/ case law, the second major source of English legal rules discussed in this book. The role of the judiciary in the development of English law has become apparent as the chapter has progressed. This chapter has also indicated the central importance of a careful dissection of the law reports to ensure that the correct aspects of the case are correctly summarised for a case note and further use. Taken together with Chapter 3, the foundations of an indispensable ‘how to’ approach have been laid. It is now appropriate in the next chapter to place this foundation in its European context looking at the law relating to European human rights and fundamental freedoms and the law relating to the European Community. In Chapter 9, three sources of English law (legislation, case law and European Community law) are further developed by being brought together in a case study. 4.10 FURTHER READING As already mentioned in Chapter 3, if you are a law student the ground covered by this chapter will also be covered in English legal system courses and constitutional or public law courses. Coverage of reading cases can be found in the following excellent texts relating to both the theoretical and practical aspects of legal method. • Sychin, C, Legal Method, 1999, London: Sweet & Maxwell, Chapters 7 and 8. • Twining, W and Miers, D, How To Do Things With Rules, 4th edn, 1999, London: Butterworths, Chapters 7 and 8.

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READING ENGLISH LAW—THE EUROPEAN DIMENSION

This chapter seeks to provide a clear foundation for the study of the European dimension of English law—that part of English law very much affected by some of

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The overall aim of this chapter is to provide a commentary concerning the relationships and differences between the areas of the ECHR, EU, EC and EC law to assist in the management of the study of these complex areas in relation to English law and in their own right. The detailed study of these areas, for law students, will occur in your English legal system, public law and European law courses. 5.2 LEARNING OUTCOMES By the end of this chapter and the associated reading, readers should: • be able to understand the general consequences and standard format of a Treaty and how it is internally organised and subsequently amended; • be able to explain the context within which European human rights operate and how it affects the English legal system; • be able to place the English HRA 1998 in its appropriate context and explain how it relates to the ECHR; • be able to describe the various types of secondary legislation produced by the EC; • be able to distinguish between primary and secondary EC law; • be able to discuss the similarities and differences between the EC and the EU; • understand the difference between the European Court of Human Rights (ECtHR) and the ECJ; • understand the role of the ECJ; • understand the relationship between the English legal system, the EC and the EU; • appreciate the difference in style and rationale between European legal judgments and legislation and English legal judgments and legislation. 5.3 READING AND UNDERSTANDING TREATIES Many of the difficulties encountered by students of English law approaching its European dimension are the vast number of unfamiliar terms. Often students do not appreciate the international nature of treaties and their normal effect. Therefore when discussing the peculiarities of the English approach to international treaties made by the UK Government confusions creep in. This section of the chapter is therefore designed to give a brief introduction to the general purpose and format of treaties.

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3.1 The definition of a treaty and its legal effects 5.3.1.1 Definition A treaty is a political agreement between two or more States. Treaties, conventions, charters, codes and agreements are in fact all treaties as defined by the Vienna Convention (despite the differing terms used). The sole difference between a convention and an agreement is that an agreement is usually signed by Heads of Government with no intention that it should be subsequently ratified by the State (for the meaning of ratification and the significance of signing, see below). A bilateral treaty is between two States, a multi-lateral treaty is concluded between more than two States. 5.3.1.2 Legal effect A treaty is only subject to international law and has no effect on the English legal system unless specific legislation is passed by the UK Parliament allowing the provisions of the Treaty to have such an effect. If there is the political will to translate any part of the treaty into English law this has to be specifically done by placing all, or part, of the treaty into legislation. Otherwise it merely remains a treaty at the international political level with absolutely no legal effects in the UK. It may, depending on its nature, be enforceable against Contracting States under international law. 5.3.1.3 Naming a treaty Every treaty has a formal name (which is usually abbreviated) and in addition many treaties are by custom referred to by the place where the treaty was signed! This can be confusing; check out the examples below in Figure 5.1, below. Figure 5.1: naming complexities 1 The Treaty on European Union 1992 (establishing the European Union) (a) Formal name: the Treaty on European Union 1992 (b) Abbreviation: TEU 1992 (c) Place of signing—Maastricht: It is therefore also called the Treaty of Maastricht. (Note: there was a second Treaty on European Union in 1997 (TEU 1997). Place of signature: Amsterdam, and referred to as the Treaty of Amsterdam. These similar names have to be distinguished by date and place of signature.) 2 The European Convention on Human Rights and Fundamental Freedoms 1951 (a) Formal name of treaty: The European Convention on Human Rights and Fundamental Freedoms. (b) Tends to be called The European Convention on Human Rights or the Convention. (c) Abbreviation: ECHR (d) Place of signature: London. But this is never used. (Note: this is an example of another word for treaty—a convention.)

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3.2 The subject matter of treaties The potential subject matter of treaties is unlimited; they can be about anything over which the government has authority. Treaties tend to contain two types of propositions: • specific obligations that States agree to follow and enforce; • statements about ideals and expression of joint hopes, standing as statements of good intention. An example would be the expressed desire of States to co-operate in co-ordinating developments in a specific area (for example, the treaties setting up the EU to cooperate in a range of areas). 5.3.3 The process of formalising agreement to be bound by a treaty Once the matters to be included in the treaty are settled, it is drafted, approved by prospective States and then opened for signature by an authorised person from each State (the signatory). Sometimes it is not possible for everyone to be available to sign it at the same time in each other’s presence. It is formally signed by the Head of Government or other authorised person (the signatory) or persons (signatories) in each State. The signature is in an expression of interest by the relevant State and an additional process has to take place. The whole government, or legislature, or people, of each signatory State in the usual manner for that State has to agree to the treaty, allowing ratification of the treaty to take place. This marks the formal agreement by the State to be bound by the treaty as signed. An example of this two stage process is Norway’s application to join the EC in 1973. The government of Norway signed an accession treaty joining the EC. However, the people of Norway were not prepared to support joining and the government lost a referendum (a ballot put to the people). The government, therefore, could not ratify the treaty and Norway did not join the EC. 5.3.4 The methods to minimise dissent in the negotiation process When a treaty is being negotiated by a group of nation States it may well be the case that whilst one State may be in favour of most of the treaty there are matters under discussion which they do not like, and cannot at that time agree to. Rather than risk the whole treaty failing to be negotiated, which could be an international political disaster, methods have been devised to get round these potential serious problems. If the nation State agrees with the core of the treaty but does not wish to be bound by certain aspects of the treaty they can make this clear by entering what is called a ‘derogation’. They agree the treaty with the disliked item ‘taken away’: the State opts out of that aspect. A written record of the derogation is drawn up, signed by the State concerned, and attached to the treaty. If the State is potentially sympathetic to an aspect of the treaty but for political reasons (perhaps lack of support in the nation as a whole for that particular item)

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does not wish to agree that aspect at that time the State can formally say that they want to think about the treaty or modify it slightly, and agree it at a later date. This is done by the State recording a written ‘reservation’ in relation to the operation of that part of the treaty in that State. As with derogations a written record of the reservation is drawn up, signed by the State concerned and attached to the treaty. 5.3.5 Changing a treaty Treaties can be changed in several ways as indicated in Figure 5.2, below. Figure 5.2: ways of changing treaty 5.3.6 Cancelling an agreement If a State wishes to cease to be bound by a treaty, it may sign an instrument cancelling its agreement—this is an abrogation which is also attached to the original treaty. 5.3.7 Official records of treaties The Secretary General of the Council of Europe (see below) is the depository for European conventions, agreements and treaties. The Secretary General keeps all of the originals and usually presides over their signatures. He also keeps the written records (instruments) of ratification, or accession (joining other States to a treaty that has already been negotiated and ratified). He also arranges registration of these European documents with the Secretary General of the United Nations.

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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.

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Figure 5.7: the institutions of the Council of Europe 5.4.3 Relationship of the Convention with English law The UK has had many cases brought against it by individuals, and its track record in relation to human rights has been demonstrated to be worrying. Between 1975 and 1990, 30 cases were brought against the UK and in 21 of these cases the ECtHR found that the government had violated the ECHR. By 1997, the number of successful applications against the UK had risen to 50. In 1997, when the Labour government came into power one of its election promises was to incorporate these Convention rights into English law. 5.4.3.1 1951–98 As an international treaty the Convention had no force within the English legal system, and Convention rights were not enforceable in English courts. However, the UK government could be taken to the ECtHR by individuals and, as noted above, it was. But, having said that, although the Convention had no force in the English legal system, it was not ignored over the course of almost 50 years between 1951 and 1998. English courts were indeed influenced by the Convention in a range of ways. Judges in the House of Lords stated that they would presume that Parliament

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did not intend to legislate contrary to the ECHR. Therefore, if during the course of statutory interpretation there were two possible interpretations, one in conformity with the Convention and one not in conformity with the Convention, the interpretation in conformity with the Convention should be preferred. The House of Lords, however, was careful to stress that it should not be assumed that such an interpretation must be applied. Judicial discretion remained. 5.4.3.2 Human Rights Act 1998 The relationship between the UK and the ECHR was changed in 1998 with the incorporation of the majority of the rights in the ECHR into English law. The enforcement procedures and processes in the Convention were not incorporatedonly the majority of rights and this is potentially a problem. For example, Article 13 of the ECHR places a duty on every Member State to provide an effective remedy in national courts for infringement of the Convention. This has not been incorporated. The HRA 1998 was enacted with an ‘in force’ date for the majority of its sections of October 2000. UK citizens can now bring actions under the ECHR in English courts under domestic law. The Act sets out the Convention rights incorporated into the English legal system in Schedule 1. Consider the text of s 1, set out in Figure 5.8, below, and note the process used to lay out what is and what is not included in the Act. The long title of the Act gives an indication of the purpose of the Act. The two rights not referred to relate to Article 2: Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law… and to Article 13 which requires every State to ensure that there are appropriate and effective remedies in the national courts. At the level of the ECtHR, the procedure for bringing an action is generally as follows.

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F igure 5.9: procedure for bringing an action in the European Court of Human R ights • Domestic remedies must have been exhausted (Article 35). • Application to the ECtHR must be within six months of final hearing in the domestic court. • It must be an admissible application. • There can be a limited audience in a court of first instance (a chamber) relating to the matter. • Within three months a party can ask for a Grandchamber hearing. • Enforcement of the decision of the court is a matter for the Committee of Ministers. Here the matter reverts to the political level but a State who consistently abuses human rights can be expelled from the Council of Europe. The remedies under the English legislation allow for the following. Figure 5.10: remedies under the Human Rights Act 1998 • English courts and tribunals take account of cases in the ECtHR and other relevant courts and decide cases accordingly. • English courts can note whether legislation is incompatible with the Convention and if so issue a declaration of incompatibility. They have no power to declare primary or secondary legislation invalid, although they do have a power to invalidate secondary legislation if the primary legislation that it is based on does not forbid it. This severely limits the power of the judges to enforce the Convention rights. • If Parliament decides that the incompatibility should be dealt with there is a fast track procedure for delegated legislation to deal with the speedy removal of the incompatibility allowing a ‘remedial’ order to be enacted. • Public authorities can be fined for contravention of the Act. • Courts must act in a manner compatible with the Act. • All statutes must carry a declaration of compatibility with the HRA 1998 signed by the minister responsible for the original Bill stating that the legislation is not incompatible or if it is incompatible that the government intends the legislation to be incompatible. In keeping with the ‘hands on’ approach of this text, the HRA 1998 can be found in Appendix 2. Read it through quickly to get an idea of it and then carefully do the following exercise. You will also find two diagrams: the HRA 1998 sections and the HRA 1998 Schedules.

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4.4 Human Rights Act 1998 (1) Turn to Appendix 2 which sets out the text of the HRA 1998 and set it out as a tree diagram according to the method demonstrated by Figure 3.10, above, in Chapter 3 for the Unfair Contract Terms Act 1977. Note that you will have to decide how you wish to deal with the detail of the attached relevant articles of the ECHR and its protocols (found in the schedules to the Act). You should also find a way of clearly indicating derogations and reservations noted in the ECHR and protocols. (Check you understand what these are.) (2) Consider the statute as a whole. (a) Do you find the text in written form more helpful, or your diagram? Or do both assist you in understanding the areas covered by the statute? (b) If you find your diagram more useful why is that the case? What can you understand with your diagram that you did not understand with the text?

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4.5 Summary This section has examined the ECHR and the HRA 1998 discussing briefly their effects on English law. The mere incorporation of the Convention rights into English law without the enforcement machinery takes some of the power out of the Convention at the level of the English UK domestic courts. However, the incorporation of the rights does make far reaching changes to the way in which legislation is scrutinised in Parliament, and to the operation of precedent, as judges in court now have to take notice of cases in the ECtHR and other relevant cases. Much of the development of both the judicial review process of judges reviewing decisions by central, devolved and local government and common law will depend on whether English judges choose to vigorously support the Convention and uphold rights, using where necessary a purposive rather than a literal approach to interpretation. However, although they can declare that legislation is incompatible with the Convention they cannot invalidate that legislation. The limit on their actions when they are faced with incompatible legislation seems problematic. This is a problem caused by the decision not to incorporate Article 13, specifying that there must be the provision of an effective remedy in national courts. This is a major area of national court weakness in the UK’s chosen method of incorporating the ECHR. The primary rationale for discussing these matters is to consider the European dimensions of English law with a view to issues of legal method, to obtain a basic grasp of how the ECHR as a treaty has operated at European level for 50 years and what changes may occur now that the Convention rights have been incorporated into the English legal system. In addition, students need to be familiar with the terminology used to discuss treaties, and be careful not to confuse the ECHR with the EC or EU, or both. Some of the reasons for the confusion can be found in the similar terminology. Students consistently confuse the Council of Europe (which among other things was instrumental in ensuring the creation of the ECHR) with similarly named institutions in the EC and now the EU (eg, the European Council is now called the Council of the European Union). Part of the difficulty confronting the student lies in the close proximity between names (for example, the Council of Europe and the Council of the European Community). In addition the similar time scales when the Convention was signed in 1951 and the Treaty of Rome in 1957 (setting up the EC) can cause confusion. Part of the difficulty is just the unfamiliarity of the area, the institutions and the vast array of new concepts and names. These problems will not just go away but they will lessen as understanding of differences and similarities increases. The European context of English law is becoming increasingly important. This second section of this chapter was designed to help students grasp the significance of the ECHR before and after its partial incorporation into English law. It is predicted that it will be a rapid growth area for the English legal system and it is important that it is not confused with anything else. Yet it is also important to note that the EC and EU make reference to the ECtHR. Therefore, it is not really sufficient to say that these areas are entirely separate as they do have interrelationships. With these distinctions in mind, it is now appropriate to turn to the EC, EC law and the EU.

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A parting example of the increasing interconnections between human rights and the EU can be given. In 2000, the European Council (now beginning to be more currently referred to as the Council of the European Union) met. Irrespective of the name change this body remains the council of the heads of government of the Member States of the EU. They met as the Council with representatives from the Commission. It is this group that has authority to sign the treaties of the Union at political level. At the meeting in 2000 they agreed to set up a convention to draft a Charter of Fundamental Rights for the European Union. The Convention was composed of 15 Member State representatives, 30 MPs from national parliaments, 16 Members of the European Parliament, members of the Commission and members of the European Court of Justice and the Council of Europe. They drafted a charter of 50 rights. The latest EU treaty, the Treaty of Nice, which came into force in February 2003, declared support for the 50-right charter that has been drafted.

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Figure 5.11: interrelationship between the European Convention, European Union and European Community 5.5 THE EUROPEAN UNION AND THE EUROPEAN COMMUNITY 5.5.1 General introduction Much difficulty can be encountered in approaching this area of study simply because some texts in the area are uncertain as to the most appropriate terms to be used to describe the EU, the EC and EC law. Some texts prefer the term Community and others Union. Some commentators are even confused themselves and use terms wrongly. In addition, there are many excellent texts on the market, as well as leading law reports from the ECJ, that were produced before the structural changes and name changes that occurred from 1992. These texts are still relevant, so it is necessary to understand that some treaties have changed their names over time, can be called by several names concurrently and have changed their article numbering systems.

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There have been changes to institutions: some have had name changes (such as the ‘Assembly’ to ‘European Parliament’); some have had powers removed or added, and some have been relatively recently created (for example, the Committee of the Regions). It is therefore important to be clear about the construction of the EU, the place of the EC, its areas of legal competency and the extent and limits of EC law, name changes of institutions and treaties, and changes to the numbering of articles in the treaties. This introduction sets out the approach taken, and the terms to be used in this section with the reasons for their use explained. The section will also give a historical and chronological review of the development of the Union and the current place of the Community. This should enable you to read most texts in the area with a reasonably clear map of your own of the interconnections between the EU, the EC, EC law and their effects on the English legal system. For the rest of this section the following abbreviated terms will normally be used: • ‘Union’ when referring to the European Union; • ‘Community’ when referring to the European Community; • ‘Community law’ or ‘EC law’ when referring to European Community law. The relationship between the English legal system, the Union and the Community is complex. But then the very concept of the Union itself is complex. The Union was established in 1992 and currently there are 15 Member States, with 13 more candidate States waiting to join. There are three spheres of activity in the Union customarily referred to as the three ‘pillars’ of the Union. Pillar 1: the three founding Communities established in the 1950s: (a) the European Coal and Steel Community (ECSC); (b) the European Atomic Energy Community (Euratom); (c) European Economic Community (EEC), since 1992 called the European Community, which was set up by the EEC Treaty. Pillar 2: agreed co-operation in the area of foreign affairs and security. Pillar 3: agreed co-operation in the areas of home affairs and justice. It is a Union that is joined together not as a federal system of States, such as the United States of America, nor as a range of States contracting at only the political level. The Union is a supra-national Union of States agreeing to be bound together in part politically, in part co-operatively and socially and in large part through a unique legal order—the acquis communautaire (‘community patrimony’) or ‘Community law’. A legal order that has effect by being incorporated into the legal systems of every Member State, and the English legal system is no exception. The legal order of the Union remains rooted in that part of the Union that is the Community. It is the nature of the legal order that makes the Union unique. For although the Union is established by treaties, it is not just governed by international law and political relationships based on agreement at intergovernmental level. The founding treaties of the Union which date back to the inception of the Communities in the 1950s insist that the law of the Union (which technically remains Community law) becomes part of the legal systems of all of the States who are members of the Union.

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The Union is the direct successor to the three communities that were set up in the 1950s by six European States. Just as over time the references to the three Communities became one reference to the ‘European Community’, now the supranational organisation that is referred to has grown since 1992 and the general name by which it is known is no longer the European Community, but the European Union. Clearly the Union is a much larger entity than the Community, as can be seen from the list of the three areas covered by the Union set out above. But the idea of a large Union had always been within the documents setting up the European Community. The Community remains intact—but as one of three spheres of activity. However, concentrated within the Community are the lawmaking powers of the Union. The Union was established by the Treaty of Maastricht 1992 and the Treaty of Amsterdam 1997 (both formally called the Treaty on European Union (TEU)). The same institutions that had served the three Communities were enlarged to serve the Union. The Treaty of Nice in 2000 made further steps towards altering aspects of the institutions of the Union to be ready for enlargement of the number of Member States who were to become part of the Union from 2004. In coming years, the nature of the Union will become increasingly streamlined as it grows in size. The Treaty of Nice reached major agreement on the simplification of the voting procedures for the enactment of secondary legislation, and declared adherence to the Union’s proposed Charter on Fundamental Rights. The terms of reference for the next inter-governmental conference on the Union will consider the simplification of the founding treaties into one new treaty. There are therefore more changes ahead that will affect law students! For all public intents and purposes, there is now only the Union. The official website http://europa.eu.int only refers to European Union and within its legal pages speaks of European Union law. However, it remains true to say that to use that term is technically incorrect. The Union has no law making powers outside those conferred by the founding treaties of the Community, so the appropriate phrase is Community law or European Community law (EC law), not Union law. The next section will deal with the basic consideration of the historical development of the European Community and European Community law. It will lay out the treaties of importance and note the different types of law, and the mechanisms for Community law having an effect within the legal systems of Member States. The legal systems of the Member States are often referred to by the term ‘domestic law’, a metaphoric use of ‘domestic’ linking it to ‘home’. The courts in Member States tend to be referred to by two phrases: ‘domestic courts’, or ‘national courts’. As already noted, whilst much smaller than the ever-growing Union, the Community contains the law making powers of the Union, and therefore it determines its legislative competency. The next section will also attempt to draw attention to areas where name changes have lead to confusion. Despite the wholesale use of the term ‘European Union’ it is useful to deal with name changes incrementally by going back to the creation of the Community and tracing its development into the Union. Those matters chosen for discussion are those most likely to be problematic and necessary to properly understand from the perspective of legal method.

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For example, what is often not made clear in the texts is the issue of how a State joins the Union and here its symbiotic relationship with the Community is made clear. You can only be a member of the Union if you are already a member of the Community. The Community is the gateway to the Union. But whereas the Community has legal competency to make law affecting Member States, the Union does not. 5.5.2 1951–92: the development of the European Community The EC was established through the founding Treaty of Rome 1957 concluded between France, West Germany, Belgium, Italy, Netherlands and Luxembourg, five of whom were also members of the Council of Europe. At the time of its creation it was known as the European Economic Community (EEC for short) and the treaty establishing it became known as the EEC Treaty In 1951 the same six States had established the European Coal and Steel Community (ECSC), and on the same day as the EC was established they also established the European Atomic Energy Community (Euratom) through a second Treaty of Rome. There were therefore three distinct Communities with some shared and some separate institutions. In 1965, a Merger Treaty merged the institutions of the three Communities, but the Communities themselves remained distinct. The UK was not keen to join the Community in 1957, preferring to set up the European Free Trade Area (EFTA) with Austria, Denmark, Norway, Portugal, Sweden and Switzerland. (In part of course the EFTA could be seen as a defensive move by European States not in the EEC.) All of the original members of EFTA with the exception of Norway are now members of the EC. In fact, the UK changed its policy relatively quickly and applied for membership only four years later in 1961, but France blocked the application for just over 10 years. The UK finally signed and ratified a Treaty of Accession in 1972. The Treaty of Rome is unusual in that it insists on its provisions being enforced by the legal systems of Member States. The UK therefore had to incorporate large parts of the Treaty into English law through the enactment of the European Communities Act (ECA) 1972. The founding States of the EC wished to use the fact of economic unity to forge greater political and social unity. There was a desire for a broader EU than that based on materials and movement of people and goods. This agenda was advanced by the Single European Act 1986 which paved the way for the single currency—the euro. Finally, the EU was created in 1992 by the Member States of the EC concluding the TEU 1992, also known as the Maastricht Treaty. This treaty, in so far as it relates to the Union, remains operative at the international level but has no effect on the legal systems of Member States. When the Union, through its institutions, operates within the legislative competence of the Community actions do have an effect on the legal systems of Member States. Should areas within the wider Union require embedding in the legal systems of the Community, then in fact what occurs is an appropriate agreement to move matters from the Union into the sphere of legal competency of the Community. For example, the agreement between Member States of the Union to co-operate on home affairs and justice (pillar 3, above) led to large areas of this ‘pillar’ being moved into the legal competency of the Community so that it could become the subject of law making that was effective within the legal systems of Member States.

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In order to understand the development of the Community and the development of the Union it is necessary to bear in mind several matters: (a) The nature of the Union and the Community. (b) The treaties setting up the Community and then the Union (included here are the founding treaties, the accession treaties, and the amending treaties). (c) The institutions of the Community and latterly the Union. (d) The sources, types and differing effects of Community law. (e) The effect of Community law or EC law on the English legal system. These areas will be considered next. 5.5.3 The nature of the European Community The Treaty of Rome 1957 states the main principle of the Community as the maintenance of economic and social progress, and naturally flowing out of this primary principle are a number of other principles aiming to unite Member States for the purpose of social, economic and legal union. It specifically states it is aiming to lay ‘the foundations of an ever closer union’. Part of the difficulty that can occur in attempting to understand the Community perhaps lies in the fact that it was never a specific place but a way of trading and of relating financially, legally, politically, socially and culturally.

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Figure 5.14: the EU and the EC The European Union now encompassing the Community IS NOT: a state in its own right; OR a federation of States with a federal government. The European Union now encompassing the Community IS: an absolutely unique supra-national organisation. The preamble to the Treaty of Rome invited other European States to join the founding six and has expanded to a total of 15 Member States at present: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and the UK. In addition, there are 13 States waiting to join. The EC has a special application procedure and States need to match a range of criteria judged against human rights records and economic stability prior to joining. The 13 States, which are formerly referred to as ‘candidate countries’ (CC) have been in pre-access preparation for a few years. The 13 candidate States are Bulgaria, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia and Turkey and 10 of these are likely to join in 2004 with two in 2006 and the place of Malta and Turkey undecided. These matters change, however, and for updated information you should use the European Union website: www.europa.eu.int. 5.5.4 The treaties setting up the Community and the Union There are a number of treaties that are important for the setting up of the Community and the Union. They have been chronologically listed in Table 5.1, below, with their range of names, main purpose, and the type of treaty. This table should provide you with a useful and quick reference for future use. Following on from the table is a diagram (Figure 5.15, below) that sets out the treaties according to type and function rather than date. Considered together, Table 5.1 and the diagram in Figure 5.15 give a clear view of the main treaties establishing the Community and the Union.

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5.5 The institutions of the European Community The Treaty of Rome set up a range of institutions to make the European Community function. The number of institutions has steadily increased in the intervening decades and currently some of the most important and relevant for your purposes are: • the European Parliament; • the European Commission; • the Council of Ministers; • the European Court of Justice; • the Court of Auditors; • the European Central Bank (ECB); • the European Investment Bank (EIB) 5.5.5.1 The European Council (now known as the Council of the European Union) This is an important group and is often confused with the Council of Ministers (and of course the name makes it ripe for confusion with the Council of Europe discussed in 5.4.1.1, above, in relation to the ECHR). The Council of the European Union is made up of the heads of government of Member States with representatives from the Commission of the Union. Whilst such a group has been core in the idea of the Community from the beginning it is not part of the legal or executive institutions of the Union. It is purely composed of those with loyalty to the Member State but desiring to forward their own agenda alongside the Union. They meet twice a year or more if necessary and have the power to agree new treaties. What appears to be happening is that the Council of the European Union is exerting increasing power and influence on the policy of the Union whilst standing outside the institutions. 5.5.5.2 The important law making institutions Several institutions within the EC have essential roles in the law making process either as initiators of legislation or with the authority to make law. You will, of course, learn about these in detail in English legal system, EU and public law courses. The main ones are as follows: • the European Parliament; • the European Commission; • the Council of Ministers; • the European Council; • the ECB. These areas will be covered in detail in specific subjects such as English legal system and constitutional law but they will be discussed briefly and sometimes illustrated with tables or diagrams for two reasons: • to provide a quick overview that will hopefully aid reading set texts covering these areas; and

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• to demonstrate the use of diagrams or tables to assist you in scanning a large amount of potentially complex information and beginning to understand the links between discrete areas of information. Often understanding develops as links between different areas of a topic become clear. Try to carefully consider these diagrams rather than just skimming them. Figure 5.16 5.5.6 Sources of law in the European Community European Community law IS NOT international law as NORMALLY understood or obligations between governments of states regulated by international law because Community law has the consequence that there is a limited transfer of sovereign rights from Member States to the Community, and the citizens of Member States also become citizens of the European Community. European Community law IS • a distinct legal order that every Member of the Community is bound by on membership. • a legal order known as the ‘acquis communautaire’. • a legal order that is specifically referred to in the TEU 1997 (the Treaty of Amsterdam) which clearly states that the Union is committed to maintaining the full acquis communautaire.

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5.7 Types of Community law (primary and secondary legislation and case law of the European Court of Justice) There are several types of EC law each with different legal consequences. Some of the law that is developed in the Community immediately becomes part of the English legal system, other laws state a goal to be achieved within a timescale of years and the governments of the Member States are free to decide how best to comply with that law. Perhaps the choice of available types of law is one of the most difficult to understand when approaching the area for the first time. This chapter will run through the main issues and will be followed by a series of diagrams to assist your understanding. Characteristics of EC law are as follows. (1) It is of several types: (a) Primary law—articles in treaties. The superior form of law. (b) Secondary legislation: • Regulations: addressed to all Member States. • Directives: addressed to all Member States (which can appear as framework directives giving quite detailed guidance for changes to a large area). • Decisions: addressed to named Member States and/or individuals and organisations. • Recommendations (not legally binding). • Opinion (not legally binding). (c) Secondary law: decisions of the ECJ in individual cases and on matters referred to it as a preliminary reference with regard to interpretation of the Treaty of Rome. The legal authority for this power is found in Article 234 (formerly 177) of the Treaty of Rome. (2) Community law is produced by different partnerships between the institutions: the Council, the Commission, the European Parliament; or by institutions with the authority acting alone: the Council, the Commission, the European Court. The Union website at www.europe.eu.int has guides to the creation of legislation and copies of all legislation and case law for the Union going back to the 1950s. (3) Community law has varying degrees of: • legal effect; and • legal consequences, depending on whether it is primary or secondary law. With regard to secondary legislation, it depends on what type of secondary legislation it is. Some types of secondary legislation request that Member States ensure a goal is achieved within a timescale, leaving it up to the State to determine how the goal should be achieved. These types of legal rules are said to be binding as to ‘outcome’.

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Other types of secondary legislation immediately place legal obligations directly into the legal system of all Member States. These are binding in their entirety and said to be directly applicable. Still other types place legal obligations directly upon certain named States, individuals and organisations. (4) The treaties, regulations and directives enacted by the Union do not directly state that they give individuals rights that they can enforce in their national courts. These legal rules are addressed in the first place to the Union and the Member State. Yet under the founding treaties Member States are expected to enforce the rights, liabilities and powers that are a consequence of membership in national courts. The ECJ has developed the concept of direct effect which describes EC primary or secondary law that give individuals rights that are enforceable in their national courts. Set criteria have to be present. Direct effect is easier to prove in relation to regulations than it is in relation to articles and directives. The criteria demand that: • the rule does not require any action from the State (and directives do); and • that the right to be enforced is clear and precise and can be activated without recourse to the State (which is not the automatic case in relation to articles in a treaty concluded at State level or a directive issued to the State demanding certain outcomes within a timescale). However, articles and directives considered on a case by case basis by the European and national courts have been held to give individuals rights. The case of Van Gend en Loos discussed later in this chapter deals with direct applicability and direct effect of articles. (5) A major difficulty is caused by the lack of uniformity of terms in relation to ‘directly applicable’ and ‘direct effect’. ‘Directly applicable’ is the phrase used in Article 249 (formerly 189) of the EC Treaty to refer to the process by which Community law of certain types is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. ‘Direct effect’, which is not a phrase occurring in any of the treaties, is the phrase consistently used in the ECJ in two senses to refer to: • the process by which individuals acquire rights they can enforce in national courts (against other individuals—horizontal direct effect, and against the State itself—vertical direct effect); and • the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. This is confusing, especially as some Community law that is created by Article 249 (formerly 177) of the EC Treaty is not said in the Treaty to be directly applicable in the sense of immediately and automatically becoming part of the legal system of Member States. Yet the ECJ has held that such law can, if certain criteria are present, have direct effect. In fact, they have gone one step further and constructed the concept of indirect effect. It is indirect precisely because the law is not directly applicable but somehow an individual can enforce it in a national court.

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From a pragmatic point of view there is a need to accept this confusion, and seek to derive the meaning of the phrase from its context. Some legal academics advise forgetting the issue, which is like running away, and does create further confusion. The courts use the phrase synonymously. The EC Treaty, however, remains silent about individual rights in national courts and only uses the term ‘direct applicability’ to refer to the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. For the purposes of explaining some of the issues surrounding EC law, this text will assume the artificial distinction between direct applicability and direct effect. It will assume therefore that ‘directly applicable’ applies to the process of automatic assimilation into the legal systems of Member States and that ‘direct effect’ refers to individuals deriving rights from Community law enforceable in national courts. Remember, however, that the terms tend to be conflated. These matters will now be set out as a series of tables and diagrams to assist you in the development of understanding.

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5.10 Common confusions As noted at the beginning of this section, from a technical point of view one of the main problems confronting students is getting a grip on the name changes that have occurred. In addition, the articles in the founding Treaty of Rome have had their numbering changed, as the Treaty of Amsterdam sought to regularise the changes brought about by various amendments (including alphabetical amendments made by the TEU 1992). This has impacted at the very basic level of textbooks. Books prior to 1993 will have a different set of names to those after and books between 1993 and 1997 will not reflect the number changes. At present books referring to the articles in the Treaty of Rome use the following method: the new number of the article in the newly named treaty is given, with the old article number in brackets immediately after. For example, Article 249 (189) EC Treaty and in some cases the texts will only refer to the EC Treaty as EC. Figure 5.21, below, puts some of these confusions together to assist in defusing confusion! Figure 5.21: name and numbering changes introduced by the Treaty of European Union (TEU 1992), also known as the Treaty of Maastricht

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Figure 5.22: the Maastricht Treaty—changes 5.5.11 The issue of the supremacy of Community law over English law Now that you have a reasonably secure but basic knowledge and understanding of the Community it is appropriate to turn to a discussion of the particular legal and constitutional changes to the English legal system and the English constitution caused by the political act of the UK joining the EC in 1973. Article 10 of the EC Treaty (formerly Article 5), stated that Member States of the Community had to ensure compliance with Community law. Much of it was also intended to have an immediate effect in Member States as soon as it was created in the institutions of the Community (remember the same institutions now serve the Union). In other words, it should automatically enter the legal system of Member States.

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5.13 How to handle Community law reports It is now important to sum this section up by looking at the issues surrounding the reading of Community law reports and reflecting on the development of reading skills. All legal systems have some appreciation and acknowledgment of precedent. The Community legal order is an artificially created legal system that draws on the legal systems of the Member States for the establishment of approaches to interpretation and law making in relevant areas. The majority of Member States operate from a Civil Code legal system unlike the UK’s preference for a common law system. Because of the familiarity of most Member States with civil law systems and the fact that all of the founding members were nation States with civil law systems, the European Community’s legal system is deeply embedded in the civil system. In the English law’s common law tradition, the legal theory underpinning the practical approach to decision making in the law courts is the declaratory theory This states that when a judge in court is deciding a case he declares in his decision what the law is. The case can then become an important precedent, as it states the law and determines when other courts must follow it. One case can determine and preset the law within the limits of the doctrine of precedent. In civil law systems codes are used to organise areas of law. All civil systems are based in different ways on Roman law where the legal theory position is that when a judge in a court makes a decision about the law, that decision is evidence of the law. The ECJ, not surprisingly, when setting up legal principles that apply across all cases, drew upon the legal experience of all Nation States, but the minority approach of the English legal system is not the approach in the Community legal order. As you will remember from Chapter 3, in the English common law system decisions of the courts are the law, rather than evidence of what it is thought to be. Through the system of precedent in the English legal system, previous court cases and law cases are presented to the court as precedents. But this is not the case in the ECJ where arguments consider other cases and other documents and practices in order to present what may seem appropriate principles of the law. It should have been apparent from the previous chapter and the discussion in that chapter on the doctrine of precedent that English law, despite its theoretically rigid binding nature, is extremely flexible in the mouths of judges. It may seem odd that there is a lack of precedent in the ECJ. But the ECJ has a determination to carefully develop and keep legal principles which do give a great deal of consistency and coherence to Community law. Commentators have noted that it has now become normal and accepted for courts to refer to earlier cases and use these earlier cases as the rationale for decisions, which begins to feel like precedent. However, even given these suggestions of openness to the concept of precedent there is no suggestion that the ECJ would ever reach a decision that it did not want to purely because of other cases deciding matters differently. The reverse could, however, occur in the English legal system.

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5.14 Understanding law reports from the European Court of Justice When you read ECJ reports—unless you are reading them in French—you will be reading a translation, for French is the working language of the court and the French judicial style is the commonly accepted model. You will find short sentences with facts, arguments and final conclusions. The language is formal and characterless in contrast to English judgments, which take on the linguistic style of the particular judge. There are no judgments disagreeing and only one judgment reflecting the opinion of the Court. Indeed, judges are sworn to secrecy over disagreements! Instead of reading a judgment that is conducting a reasoned argument one tends to find the listing of ultimate conclusions as assertions. Figure 5.24: layout of a Community case

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(d) the relationship between differing Community rights and obligations; (e) following and considering the arguments put forward; (f) a consideration of the impact of the case on Community law and the English legal system. This reading gives you an opportunity to see where you are in your understanding of these matters. Van Gend en Loos was decided early in the development of Community law and remains a leading case on the potential legal effect of an article in one of the founding treaties in the legal system of Member States. 5.6.2 The initial reading It is always a good idea to quickly read documents before a more considered reading, as long as you know why you are reading them. So, please now turn to Appendix 2 and read the case quickly (note that the numbers in brackets from (1)–(97) have been placed in the case to assist you with later work on it. Just ignore them for now). Once you have read the case quickly and have a general idea of what it is about, read it a second time, more slowly, and then answer the following questions: (1) In no more than 50 words, state the facts of the case (the fewer words the better). (2) What does Vand Gend en Loos want the court to allow? (3) What has to be decided before Vand Gend en Loos can get what they want? (4) What is the rationale behind the decision? (5) What are the legal issues in the case? (6) Do you find the language of the case difficult, or the case itself difficult to read? Give reasons for your answer. 5.6.3 The second reading: the tabulated micro-analysis of the case What you may have noticed in your reading of the case and subsequent answering of the questions is that the language of the law report is very different in style to that of an English law report. You are reading a translation of the working language of the EU, which is French not English, although all languages have equal status within the Community. What you will have immediately noticed is that the report reads as a series of descriptions and assertions. You will not find the reasoned, illustrative argumentative techniques that are the more familiar to the common law lawyer. Think, for example, of the case of Mandla v Dowell Lee [1983] 1 All ER 162 or George Mitchell (Chesterhall) Ltd v Finney Lock Seeds [1983] 2 All ER 732–44. To assist you to methodically engage with this case, it has been broken down into a table style format that takes you through each paragraph. The paragraphs have been numbered in the table according to the bracketed numbers that have been inserted into the text in Appendix 3 so that you can read the actual paragraph as well as its précis in the table. This should be useful as you can see a steady demonstration of summarising dense or technical text. In addition, a classification of the function of each paragraph is given under headings such as:

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• descriptive; • setting out facts; • procedural; • conclusion; • proposition or point in an argument; • inference, because internally identifying the function of an argument is part of the way that one is able to start to organise a text in terms of its arguments and its proofs. The layout of the table is therefore as follows. You will be able to see how the text builds up to a final decision. You should be able to clearly see the arguments and have a view yourself on the outcome. Work through this text slowly. Where necessary refer back to diagrams or tables in the rest of this chapter that may help you. You will find the task completes the purpose of this chapter by giving a firm basis for reading law reports resting on the complex issues discussed. You should be checking the original paragraph to see if you would have made a correct précis. From the text, tables, diagrams and tasks in this chapter you should have been able to acquire a firm foundation for your analysis of this area in your other subjects.

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Having persevered with the reading of the case and the notations, the differences between this Community case and common law reports is stark. The judges in the ECJ do not use analogy, poetic language, asides, stories, counter arguments. There is a veneer of scientific detachment in the language of the Court. The style is unadorned description, technical language without explanation, assertion, the summarising without comment of a wide range of arguments by the parties, the Advocate General, and the governments wishing to make observations. When the ECJ turns to the decisions it will make, it dismisses arguments without explanation with phrases such as, ‘this is misconceived’, ‘No, this is not right’ and states ‘this is the case’ without giving reasons why. The Court argues deductively without making any attempts to refer to policy. Yet, it must surely be aware of the policy dimensions of its decisions. If it had decided against Van Gend en Loos, then the power of the fledgling Community would have been severely diminished. In the view of the Advocate General, companies would follow the national customs tariffs and not be guided by the provisions of the treaty. The ECJ may well have been taking the opportunity to assert the power of the Community over the individual Member State. This is conjecture in the absence of any comment on policy from the Court itself. Potentially powerful and persuasive arguments were put forward that the ECJ did not have the jurisdiction to hear the case; the Court merely replied that they did have jurisdiction. This was based on the grounds that the meaning behind the question raised an issue of interpretation within its jurisdiction. The Court’s simplistic decision following from this that any arithmetical change, even if it resulted from a re-classification within the existing order rather than a deliberate increase, would constitute an infringement of the treaty—is severe and open to question. In the face of arguments that would concentrate upon the intention of Member States concerning infringement, the ECJ says any arithmetical increase constitutes an infringement irrespective of intention. Indeed, much policy has to be read into all judgments of the ECJ and this judgment is no exception. Perhaps given the tensions between Member States and their creation, the EC, this is a wise and deliberate policy. The Member States gave birth to something that, in many respects, is more powerful and can dictate terms to an individual Member State.

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There is little usage of what may be described as the forensic skill of the English judge. The major part of the report concerns summaries of the arguments put forward by both parties, the Advocate General, other interested Member States, and the governments of affected Member States. Given the detail of the summarised arguments, and the range of arguments presented, it is interesting to note that it is acceptable for the Court to dismiss arguments without reasons. Theoretically, of course, an English judge could do the same, but the entrenched method of reasoning by analogy based on precedent makes such a course of action unlikely. 5.7 SUMMARY This chapter has attempted to give an outline description of the main areas where English law needs to be read and understood in its European dimension. These areas are the law relating to human rights, and the EU and its law making powers (EC law). The chapter began with a basic introduction to the idea of treaties in general as the main method of the British government making political agreements— agreements that are usually operative at the level of international law. The chapter then explained the ways in which the law relating to human rights and the legal aspects of the EU have become part of English law.

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READING BOOKS ABOUT LAW—A READING STRATEGY

This chapter briefly introduces a general reading strategy and demonstrates its use by applying it to the reading of a short article ‘The European Union belongs to its

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• be able to apply a range of methods for breaking into secondary texts; • gain confidence in reading secondary texts. 6.2.1A reading strategy For each text located, decisions have to be made. • Is this text relevant? • Is it necessary to skim read and/or scan, and/or close read? • What is/are the argument(s) of the text? Vital decisions have to be taken about the reading. It is absolutely essential from the outset to have a plan for reading. Reading in the context of studying always implies reading for a purpose. The parameters of the problems before the reader have to be carefully thought out before commencing reading. Students may be given a problem question to research, or an essay to write. With both types of assessment activity, it is vital that the limits of the question are correctly identified by looking for clues in the grammar used to construct the question. For example, the facts of problem cases are often set in the areas between decided cases where there is an area of ‘unknown’, an area that the student is expected to talk about confidently. Competent identification of the issues from the outset often determines the quality of the answer before any creative writing has begun. These matters are explored in greater detail in Chapter 8. The care given to the reading of cases and statutory provisions has also to be brought to the reading of secondary explanatory, interpretative or evaluative texts. Reading with an idea of why the text is being read as well as with a view to what it is hoped to do with the extracted information will enable the student to read with a mixture of skimming strategies, detailed reading strategies and note-taking. The ‘why’ can be as simple as ‘I am reading to find out what this article is about’ through to ‘does this article support the argument that I am trying to construct?’. Many students, however, read blindly—‘This is on the reading list so I have to read it’. They do not fit their reading into a strategy: ‘Am I reading this for description, information or analysis?’ ‘Am I seeking to find out basic things about the topic or am I trying to support propositions in my argument?’ It is essential to develop a reading strategy. There are some basic steps which will be set out below. However, the most important issue to grasp is that reading can never be a purely passive act, because a writer always seeks to engage the reader in active dialogue with the text. No one writes in order not to be read, and no one wishes to be read passively without thought entering into the reading process. It is necessary to become aware of an inner dialogue between self and text as reading progresses, or to acquire an inner dialogue if one is not present! The reader should be continually processing, reflecting, considering, agreeing or disagreeing as reading is in progress. Readers should particularly note if other thoughts enter their head (like ‘what’s on TV?’!). If readers become frustrated with the text, the reading should stop and questions asked. Is the reader scared, threatened, annoyed with the text and, if so,

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why? Not allowing enough time to read a text can be fatal to understanding, which in turn causes stress. There are four main stages to any reading enterprise: (1) preparation prior to reading: • locating texts; • ascertaining purpose for reading; (2) methods of reading; (3) understanding what is being read; (4) critically evaluating what is being read. These are deceptively easy stages to set out but much harder to utilise for the first time, especially if readers have already established ill-disciplined approaches to reading. Each of the above stages can be split into sub-stages; such analysis is necessary to obtain the fullest comprehension of the text. The following strategy for competent reading demonstrates this. 6.3A STRATEGY FOR COMPETENT READING STAGE 1 Preparation prior to reading

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Reader prediction of use and content of text: • this involves a consideration of what the writer is saying. This can be judged from the subject matter and the title. What does the title suggest? It is about the European Union and is suggesting it ‘belongs to its citizens’. The last phrase of the title is a deliberate play on words. Usually, an author would say ‘I am making three modest proposals’. This author is being controversial and states ‘three immodest proposals’. Usually, people will argue that they are only suggesting modest, small changes. Here the suggestion is that the changes are large and perhaps outrageous. The title also sounds like a political slogan, a call to arms maybe ‘The European Union belongs to its citizens’. So the article is, or should be, about proposals relating to the concept of the Union belonging to its citizens. 6.4.1.2 Stage 2: methods of reading Skimming Read very quickly and generally through the text noting: • publication date: 1997. The date gives a context to the article. You could be reading it years later when changes may have occurred. You need to know this. • headings and sub-headings: introduction; proposal 1: the European Legislative Ballot; proposal 2: Lexcalibur—the European Public Square; proposal 3: limits to growth; • author details: Name: JHH Weiler. Title: Professor of Law and Jean Monnet Chair, Harvard University. Job: Co-director, Academy of European Law, European University Institute Florence.

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Scanning • Unlike the general skim through, scanning involves quickly looking for specific words, phrases or information. • This would be used with this article if it was being scanned for potential relevancy. Detailed reading A detailed reading will allow attention to be given to identifying primary and secondary or subsidiary arguments properly in the text. Here, the reading is slower and careful. Do make sure that you check out unfamiliar vocabulary. Also some words and phrases become clear as more text is read. For example: • what does the word ‘Lexcalibur’ mean? Where does this word come from? • what does the phrase ‘the European public square’ mean? Neither the word ‘Lexcalibur’ nor the phrase ‘the European Public Square’ can be found in a dictionary. However, their meaning unfolds in the article. Note the type of language used. Thinking closely about the text the most obvious language usage is figurative. The writer uses short sentences, slogans, rhetorical questions, poetic language, metaphor, invents words. Take a look at the demonstration of this in Figure 6.3, below.

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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.

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4.1.3 Stage 3: understanding what you are reading • Guessing words that you do not know. Do not expect to know all the words read. Even as a more extensive vocabulary is acquired, there will be words that are not known. You may even have singled the following out already: Lexcalibur, democratic ‘deficit’, ‘competencies of the Union’, ‘specific gravity’ and ‘apocryphal statement’. • Identifying main ideas. Here, the main idea is that 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. • Identifying subsidiary ideas. Here, that there could be potential clashes between the constitutional council and the function of the European Court of Justice. • Identifying overall text organisation. Every writer has a different way of organising, classifying and structuring their work. This needs to be ascertained by any reader who wishes to break successfully into the text. Here the author has clearly indicated structure through the headings and has discussed points in the order indicated. The writer is: discussing a specific problem; and proposing a solution to that problem. 6.4.1.4 Stage 4: evaluating what you are reading • Ascertaining the purpose of the writer. The writer wants to inform about something and indicate the correctness of a particular point of view. • Evaluating the argument(s) of the writer. The argument here is relatively easy to extract because the article is written in a punchy, journalistic style while keeping to headings. What is clear, however, is that the detail given to setting out the three proposals is not given to indicating evidence to support propositions—perhaps because the writer feels that many of his propositions are self-evident. Having ascertained the arguments, then it is up to the reader to decide what is thought. A student’s view of the argument of the writer is initially limited by their lack of knowledge of the issues spoken of. As research is continued in an area for an essay, more is learnt, more about competing views, and more about the area generally. Then, the student’s view of the argument may change. Even if an argument is preferred, it can still be a weak or strong argument either theoretically or practically. It can be weak because no evidence to show support for important propositions or ultimate conclusion has been put forward.

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Students may need far more information before they can evaluate the writer’s proposals concerning problems and solutions. The student may not agree with the problem. If a problem has been misdiagnosed, then the solution will not work. If the problem has been correctly identified, but the wrong causes attributed then, again, the solution will not work. Reading is, therefore, a dynamic act, not a purely passive thing. In any text identifying problems and putting forward solutions in argument or description formats, the following questions need to be asked: is it plausible to classify these circumstances as a problem?; is it plausible to maintain that these are the causes of the problem?; given the view on the above two questions, is it plausible to offer these solutions? Then ask: ‘OK, is this conclusion plausible?’ ‘Do I agree with the conclusion to the argument?’ ‘If I do not, how do I attack it?’ ‘Do I agree with all of the propositions that are the building blocks in this argument?’ ‘Are the propositions strong or weak?’ Ask these questions in relation to the article on the European citizen. If there is any area of lack of understanding, ask ‘why?’ are there problems with the vocabulary, or the concepts, or is there too much presupposed information, etc? • Ascertaining the attitude of the writer. • Writers are usually biased towards a certain view in their writing, although on occasion a writer may be neutral. • You must be able to gain skill in identifying a writer’s attitude to the ideas he or she is discussing. • You must at least know whether the writer is neutral or biased. 6.5 USING THE ARTICLE WITH OTHER TEXTS Having read this article, it is possible to represent the argument in the article as a diagram which is a useful method of viewing all arguments unidimensionally which our brain cannot do with text. This is demonstrated in Figure 6.4, below. Task: imagine that there are other articles about citizenship by authors X, Y and Z, the original article by Weiler could then be annotated according to whether X, Y or Z agree or disagree with Weiler’s arguments and evidences. This is set out in Figure 6.5, below. Study these diagrams carefully and understanding will be gained in the area of the use of secondary texts.

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If one were marshalling evidence for an essay entitled ‘Does the European Union belong to its citizens?’, it would be possible to incorporate the views of Weiler, and authors X, Y and Z in such an essay by simply writing to the diagram. In addition, one would look in leading textbooks to see if those authors had anything to state. Having noted the areas of agreement and disagreement on the diagram, a clear view emerges of strong and weak arguments. Then, it is possible for the student to come to a personal conclusion. The student may feel that it is not possible to come to a clear conclusion. This feeling can be right or wrong, depending upon the answers to the following questions: (a) is there enough information collected to properly cover the area? (b) have all of the arguments put forward been understood? (c) is there a lack of empirical/practical evidence to support theoretical positions? It is vital to decide whether there is enough information and this is often a subjective matter. A brief conclusion to the above suggested essay follows below. It centres on Weiler’s articles and the imaginary authors X, Y, Z. Hopefully, it forcefully illustrates how: • identification; • organisation; • classification; • competent reading strategy and notes; • diagrams, can work together to bring clarity of thought and expression. Textbooks are not included in the conclusion but if a textbook did comment on a theory or give useful insights, these could also be incorporated. ‘The European Union belongs to its citizens.’ Discuss.

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LEGAL ARGUMENT CONSTRUCTION

This chapter is an introduction to the construction of legal argument. The ability to engage in competent argument is seen as an essential skill in most areas of life. All academic disciplines place value on the competent construction of argument, and

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• Outlining methods of legal reasoning (such as the use of inductive, deductive and abductive reasoning and reasoning by analogy) and describe how these inform strategies for argument construction. • Discussing in detail the relationship between propositions building an argument and proofs supporting propositions. (This is particularly accomplished by considering in detail a modified Wigmore Chart Method. A fact analysis process that is instructive at the level of argument construction.) Argument concerns not only laying out facts and rules, it also involves aspects of persuasion, and determination of where the weight lies in opposing arguments. Assessors in the court, judges or jurors, decide whether an argument is strong or weak, proved or unproved. In the final analysis, how does the court, or how does anyone, decide the criteria for the evaluation of an argument? Evaluation cannot be solely guided by rules. Ultimately, argument construction is also a personal thing. Different people will take different routes to evidence, and relate the evidence differently to the issues. Much depends upon an individual’s ability to both imagine and reason; to imagine doubts, as well as links in proof. Nothing exists in the realm of methods to tell anyone what a strong link may be. We may be excellent at the processes of transmitting, storing and retrieving facts and information but we do not have similarly developed skills of obtaining defensible conclusions from these facts and this information. 7.2 LEARNING OUTCOMES By the end of this chapter, readers should: • be able to define an argument and distinguish between the general meanings of argument and legal argument; • understand the relationship between the diagnosis of problems and the construction of rules to solve problems; • understand the difference between fact analysis and legal analysis and the connections between these activities; • be able to basically define and then differentiate between inductive, deductive and abductive reasoning; • be aware of the need to develop critical thinking; • understand the way in which an argument relies on factual analysis, legal reasoning, persuasion and critical thinking; • be able to note the connections between language and argument; • be able to construct a modified Wigmore Chart and apply it. To be able to construct a competent argument in relation to a legal problem to be solved according to rules of legal reasoning acceptable within the English legal system; • be able to construct a competent critical argument relating to theoretical aspects of the study of law.

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3 LEGAL EDUCATION AND THE INTRODUCTION OF SKILLS OF ARGUMENT At the academic stage of education the standard framework around which teaching takes place is that of legal analysis. Legal education is orientated towards the case method: how cases in courts are described and analysed. The student’s skill in understanding cases, how they have been argued and how the law has been applied, is tested by asking the student to solve a hypothetical problem. The student is given the hypothetical facts. Often students are asked to present advice for one fictional party to a case. The student goes to the library (virtual or real) and searches in books and journals, and the law reports to find similar, analogous cases, noting how these have been decided and why Then that student infers how the hypothetical case he or she has to argue will be decided, basing their inferences on the way applicable legal rules were applied in real cases. The legal analysis that students are trained to do, of course, involves basic analysis of the facts of the case. Which are the material facts? How can the facts as given be organised to make it clear that earlier cases apply? In the standard university problem question (see Chapter 8), the facts do not need to be ascertained, they are given as a neat logically ordered story. In real life, these stories are messier, the relevant facts more difficult to extract, and the doubts and solutions are not so clear. At the vocational stage of legal training, the student is taught to engage in factual analysis and this provides the framework for the course. The student is also taught how to structure, organise and analyse a large amount of what we could call ‘raw data’. They are taught to draw out the probable story from clients, the inferences in the data and see how available evidence can support the argument on the case to be proved. Evidence is correlated to the relevant facts, the facts in issue (eg, that Anna stole a book). The legal principles are assumed. Indeed this aspect of legal education reverses the process noted above in university education of drawing out legal analysis. The legal principles are for the present at least, not in issue, but a given. Theft is against the law. The test of development for the student is to see how skilled they are in deciding whether the factual data that has been made available can be put into a structure that makes it possible to construct a viable argument. An argument that proves Anna is guilty of theft, for example, because enough evidence exists to prove the elements of the unlawful act according to the relevant standard of proof. In reality the good lawyer needs to be able to engage in competent legal analysis and factual analysis. Whilst the difference between the two is important the rigid demarcation between the two for the purpose of the academic/vocational divide is unnecessary and at the early stages of acquiring a legal education highly problematic. This demarcation is beginning to break down as the value of legal skills at the academic stage of training is being recognised in UK law schools. Teaching legal analysis alongside factual analysis, and then subjecting the outcomes of both processes to critical analysis, gives a more holistic approach to the theoretical and the practical study of law. In addition, legal education does not only address factual analysis and legal analysis; it critically addresses macro issues relating to the law as an institution, interrogating the development of substantive law, personnel, methods of reform, underpinning ideologies and prevailing attitudes towards legal philosophy.

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The common law model rests on assumptions that underlie both theory and practice and this will become clear as legal study is undertaken. It is said that in fact it rests on notions of the ideal type of rationalist tradition (Twining and Miers (1999)) This model involves the pursuit of ‘truth’ through rational means. Can you make accurate present judgements based on reasoning in cases occurring in the past on similar facts? This is certainly what the doctrine of precedent demands. The English legal system has developed principles designed to draw out that past reasoning and use it in the present and to obtain consistent decision making. Such a pursuit has as a high, but not overriding priority, the securing of justice under law. The model of adjudication is instrumentalist in that the pursuit of truth through reason is only a means to achieving a particular type of justice: the implementation of substantive law. • The mode of decision making is rational not irrational, and because it is highly aspirational its practice is often critiqued. • The mode of reasoning is inductive (to be explained below). Although there is room for constructing deductive argument (again to be explained below) proof always needs to be by inductive means, as will be described. As you will have noted by now, argument requires careful attention to detail, planning and understanding that there is a close relationship between: • cases of authority; • language usage; • logic and reasoning; • planning; • imagination; and above all • excellent skills in critical thinking. The phrases ‘critical thinking’, ‘critical reasoning’, ‘critical reflection’ come up often so it is important to be clear about what these mean. 7.4 CRITICAL THINKING Central to the task of study is the cultivation of excellent critical thinking. Every day, all the time, information is received, processed, evaluated, ignored or acted upon by the human brain. This information is received via all the senses, hearing, seeing, touching, smelling. It is processed in micro seconds, and often without the person’s conscious awareness of the process of: • receipt of information; • evaluation of information; • action based on evaluation (do nothing/do something/store information for later use). In our everyday life, if we refuse the information, or do not receive it, or fail to evaluate and act on it in some way, even if it is just to decide to ignore it, we would

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not be able to function as a human organism. In addition to the processes just described, it is also the case that often the action we take in everyday life is in part based on guesswork. What is often not appreciated is that the guesswork actually proceeds from a certain level of knowledge and experience. Given that everyday life is a process of receipt of information, evaluation, guess work and action it is obvious that learning is not an exception to the normal rhythms of life seen in terms of receipt, evaluation and action; on the contrary it is merely a highly sophisticated and stylised part of life. One important characteristic of highly competent people is that in many areas of their lives they have developed a critical approach to what they do, see and think. Not critical in the sense of ‘fault finding’ but critical in the sense of:

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Imagination can in fact be essential to leaps of creativity that are later identified as ‘critical’. Being a critical thinker therefore is bigger than just cognitive acts of logical reasoning, and the careful consideration of argument. It also involves an ability to find assumptions behind beliefs, actions and behaviour, and bring creativity to the activity of thinking. A critical thinker will be able to forward justification for their ideas and actions and those of others. They can compare and contrast, work through processes, subject justifications to a number of interpretations, and they can predict and test the accuracy of those predictions. They can work artificially by constructing models of the ‘real’ and recognise that is what has been constructed. There is another dimension to critical thinking which is ‘reflection’. Subjecting our learning to analysis based on comparing it with our experience of practice. Critical thinking involves the whole person and can be seen as a life enhancing necessary life:

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Competency in critical thinking develops over time and no doubt all readers of this book will have developed it outside the study of law, although they may not have put a name to the process. This development can be transferred to your legal studies. But you may not have really considered the issue of critical thinking before. In academic studies, critical thinking and a healthy scepticism of universality, are demonstrated by approaches to reasoning. Critical thinkers for example are aware that often arguments contain contradictions and these contradictions have to be looked for. They are also able to distinguish between differing types of statement, for example they can understand the difference between a statement of fact and an statement of opinion; this naturally affects the expertise of their reasoning processes. It makes a great deal of difference whether an argument is based on opinions or facts! The core of critical thinking is the constant considered identification and challenging of the accepted. It involves the evaluation of values and beliefs as well as competing truth explanations and of course texts; it involves both rationality/objectivity and emotions/subjectivity; it involves the questioning of the very categories of thought that are accepted as proper ways of proceeding and to ensure that one always: • searches for hidden assumptions; • justifies assumptions; • judges the rationality of those assumptions; • tests the accuracy of those assumptions. In this way you will ensure the best levels of coverage for each area of your study. The next section covers each of the main clusters of skills. The critical thinker has to engage not only with micro questions within the text, both at the superficial and the deep readings, but also with the macro-issues surrounding topics, courses and ultimately the legal system. Much of your degree study will revolve around working with legal primary or secondary texts, reconciling, distinguishing and/or following the arguments of others as well as the tentative construction of your own arguments. Much of your time may be spent explaining differences of interpretation that seem close. When deciding what words mean in texts we make far reaching decisions and often engage with morals, religion, justice, ethics, in the search for meaning, for the truth of the text in this time. Critical thinkers look for hidden assumptions underlying the face value explanations of the texts, they are not deceived by the theorists particularity dressed as neutrality, they are aware of the power of language and the value of argument. They know that all texts are not logical and do not necessarily feel that they have to be so. Texts will form the ‘bare bones’ of your studies. They are carried in language that has to be read, interpreted, questioned and seen in its fragmented contexts. It is vital to develop a critical approach.

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Figure 7.2: argument

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Figure 7.3: argument construction 7.6 THE NATURE OF PROBLEMS AND RULES Before continuing to discuss the detail of argument construction and the legal reasoning preferences of the English legal system it is useful to look briefly at the nature of problems and rules. A number of issues are raised by the activity of resolving problems by making rules and/or applying rules. Twining and Miers introduce the idea that much of law concerns rule handling and that an integral part of rule handling requires an understanding of the nature of problems. For the life of the law is equally connected with the human condition and the issue of problems as it is connected to the manipulation of legal rules. The definition of a problem varies according to context and can be: (a) a difficult question put forward for an answer in scholastic disputation; (b) the question asked in the standard formal logic method of deductive reasoning; (c) in mathematics and physics an inquiry or a question which, starting from a given position, investigates some fact, result or law. Twining and Miers (1999:114) states that:

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Of course it is not just individuals who have problems; problems can have a corporate or social impact requiring community or societal action. The real issue is how you move from problem to solution. Students often do not know how to go on the journey. They cannot see the ‘start’ and they miscalculate the length of the journey. By correctly identifying, classifying, interpreting, one begins to journey from problem to solution but also solutions can involve guessing and trying. Solving problems with rules requires imagination. Everything can be seen as a question awaiting an answer. Life itself could be described as a journey through questions and answers towards a solution. It is a risky business. Solutions can be aimed at dealing with the problem, or making the problem solver feel better. Solutions aimed at making the problem solver feel better could include doing nothing, leaving, or it could include a reconciliation and extraction of a promise not to repeat the problematic behaviour. A parent who smacks a child for behaving in a manner unacceptable to the parent may not have solved the problem of the behaviour but the parent may feel better, thus, the problem of the parent feeling bad may have been solved. Much depends on the role of the problem solver. Is the problem solver: (a) a family member in a dysfunctional family; (b) a teacher in a school; (c) a defence lawyer in court; (d) a judge in court; (e) a politician in the cabinet; (f) a scientist in a laboratory; (g) a ‘victim’? Is the problem a purely paper issue or a personal issue? A seemingly simple problem can be complex for those seeking a solution. It has been said that no problems come as single units but as a series of interconnected issues and problems. Problems, like so many other issues, are processes, often complex processes. If the nature of problems generally is not understood, it is difficult to understand the nature of legal rules, and the complexity of using legal rules as solutions to problems defined as legal. Twining and Miers apply the concept of standpoint to problems and obtain some extremely interesting results because they point out that problems change their nature according to the perspective from which they are viewed. Problem solving and problem management is a part of everyday life and the skills in these areas that have been developed automatically can assist students in turning their attention to a more methodical approach to dealing with complex legal problems. To use knowledge, it is necessary to be aware that it is possessed. Often, people are not aware of the methods they have developed to solve problems. Some people develop bad problem solving techniques to deal with life (anger, fear, frustration, running away). It is equally possible to develop bad problem solving techniques for academic work (fear, running away, laziness, guilt, denial and frustration).

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Problem solving involves accurately: (a) seeing that there is a problem; (b) deciding what type of problem it is (which determines much about the eventual solution); (c) presenting (a) solution(s) to the problem. What needs to be grasped immediately is that solutions are the end product of a series of complicated interrelated operations. Teenage alcoholism, as a problem, is viewed very differently according to whether one is: (a) a teenager who drinks moderately, heavily, or not at all; (b) a police officer; (c) a legislator; (d) a parent of a teenage alcoholic; (e) a parent of a teenager who drinks illegally but within their limits; (f) a parent of a teenager who does not drink; (g) a teacher; (h) a youth worker; (i) a seller of alcohol; (j) a member of the medical profession; (k) a social worker; (l) a counsellor. In many disciplines, professionals use problem solving models which enable users to check certain steps along the road to eventual solution. One of the best known and most useful problem solving methods within legal education is the model devised by Twining and Miers (1991), replicated in Twining and Miers (1999). Seven steps from identification through diagnosis, prescription and implementation aimed at solution are given as follows. 7.6.1 Problem solving model (1) CLARIFICATION of individual’s standpoint, role, objectives, general position; (2) PERCEPTION by individual of the facts constituting the situation; (3) EVALUATION of one or more of the elements making the situation undesirable, obstructive, bad…in other words, ‘what’s the problem?’; (4) IDENTIFICATION of a range of possible solutions to the perceived problem; (5) PREDICTION of: (a) the cost of each option; (b) obstacles associated with each option; (6) PRESCRIPTION choosing a solution to the problem; the construction of an effective policy for solving the problem; (7) IMPLEMENTATION of that policy.

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Things often go wrong because legislators, as well as problem solvers, often rather like impatient general practitioners: • prescribe first; and • diagnose later! This course of action is a classic government response in a crisis, or student response when confronted with an essay. Even when an attempt is made to follow a model or to try to cover all eventualities, solutions to problems often cause more problems. Because one searches deeper into a problem, it is usually observed to be a cluster of problems with a range of causes, and a range of potential solutions, each with a different set of obstacles and costs. Much of a lawyer’s job, like that of many other people, involves solving or managing such problems. They tend to be drawn into solving problems in a range of ways, mostly revolving around the application and meaning of legal rules. So, it is worthwhile paying some attention to what is meant by a rule. Having opened the issue of ‘argument’ up by discussing the nature of problems it is now necessary to look at rules in a similar manner. 7.6.2 What is a rule? There are many meanings to ‘rule’. A rule can be a principle, a maxim governing individual or group conduct in life or in a game. It can be a system that creates a way of life. Within monastic life, the way of life according to rules can mean that the group itself is defined and described as the rule—the rule of St Benedict, for example. Some rules only have force within religious or social settings; others have effect within legal settings. Some rules only have force within a given academic discipline, philosophy, law or indeed legal method. Language itself is subject to rule formation in its rules of grammar, rules that some literary stars have attempted to subvert. James Joyce in Ulysses or in Finnegan’s Wake, for example.

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Other rules constitute a standard against which correct behaviour is judgedreligious rules, for example. Figure 7.4: a basic definition of a legal rule A rule often represents the view of a group concerning lawful, moral, social, acceptable, good action. The same rule can carry out several functions. ‘Do not kill’ has a moral function, backed by a range of religious or philosophical groups worldwide. It also has a social function. To enable it to be enforced it has been given a legal base. Infringement can lead to severe penalties. A rule that has not been created by the law making process or accepted by those empowered to create law is not deemed to be a legal rule. Rules in general—and legal rules are no exception—are concerned with stating that people engage in certain activity either in thought, or word or deed.

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Rules often also contain statements about values. They are vehicles for communicating statements about justice, ethics, equality and fairness. Figure 7.5: The vocabulary of rules They stop (they are prescriptive); They guide (they are normative); They allow (they are facilitative). All legal rules are created by State authorised procedures and are enforced by the full force of the State. Often, the difficulty with legal rules is that they are general and need to be applied to specific situations. Rules need to be interpreted. That a rule seems applicable may be clear but the precise meaning of an important word or phrase may not be clear. Statutory rules in our simple majority democracy often reflect the political values of the party in power. They can, therefore, be described as instruments of policy. Whatever the original intention of the political designers of the statutory rule, when users of these rules come to interpret them, defects in design are always apparent because words can, so often, be made to mean what the utterer did not intend them to mean: another reminder that language is flexible. The judges in the courts have constructed rules of interpretation of statutes which have for nearly 100 years, taken as their predominant attitude the view that legal rules are to be interpreted without recourse to the reason, motive, or policy of the creator. The argument has a certain force, for a statutory rule can change its nature during its passage through the Houses of Parliament.

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Figure 7.6: classification of rules according to their nature 7.7 CONSTRUCTING ARGUMENTS So, now that a little thought has been given to: (a) the meaning of argument; (b) the nature of problems and rules; (c) the mediating power of language, it is hoped that the complexity of any attempt to solve problems by recourse to rules is better appreciated. Despite the difficulties it is essential that lawyers are able to construct arguments, to fully engage in the process of effective reasoning. Without that core skill, a lawyer lacks competence. Argument construction utilises a number of preparatory skills: • summarising texts; • choosing amongst appropriate texts for the most useful; • research and organisation of texts; • critique and analysis; • the appropriate collection of materials in order to persuade the listener of the validity of the arguments presented. Legal argument is often a delicate balance of facts and/or theories and the application of existing rules connected by reasoned comments to persuade of the

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validity of adopting the outcome suggested. In the court room, both parties put forward arguments and the judge chooses the argument that is either the most persuasive or that is the closest to the judge’s own belief concerning the outcome of the case. So far, in this text, there have been opportunities to read judgments and the judges have presented their decisions in the form of reasoned responses to the questions posed by the case. In the classroom, students are constantly called upon to practise and refine their skills in legal problem solving by engaging in reasoning processes leading to full scale argument construction. For the practising lawyer, a valid argument is of the utmost importance. Decisions as to right action can only be made by people who are able to distinguish between competing arguments and determine that, in a given set of circumstances, one argument is more valid than another. Judges are, of course, the ultimate arbiters of the acceptable decision. Sometimes, this decision is quite subjective. 7.7.1 Logic It is generally believed that academic and professional lawyers and, indeed, law students, are well skilled in the art of reasoning. Furthermore, it is believed that they are people who argue ‘logically’. To most, the term ‘logical’ indicates a person who can separate the relevant from the irrelevant, and come to an objective view, based often on supposedly objective formula. Colloquially, people accuse others, who change their mind or who are emotional in their arguing, of allowing their emotions to get the better of them, of ‘not being logical’. The dictionary defines logic as the science of reasoning, thinking, proof or inference. More than that, logic is defined as a science in its own right—a subsection of philosophy dealing with scientific method in argument and the uses of inference. Hegel called logic the fundamental science of thought and its categories. It certainly claims to be an accurate form of reasoning: its root is found in the Greek word logos meaning reason. Figure 7.7: a definition of logic

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The lawyer, like a scientist, spends time considering the importance of supporting all statements with evidence and considers how one might weigh evidence on a scale of weak to strong. What is it that is actually proved by the evidence? However, the lawyer deals in words, reports, reconstructions; the lawyer was not present observing the wrong, the accident, the incident. The scientist can always replay the event, observe the event. So, there is not a strict correlation between the lawyer and the scientist. The logician, like the lawyer, deals in statements expressed in words and symbols called propositions. In the context of logic, the word ‘proposition’ only means making a statement or an assertion about something. Essentially, logic is the study of propositions and how conclusions may be correctly obtained from propositions in the process of reasoned argument. There are two main types of logic: deductive and inductive. There is also a third process: abduction. Each of these processes will be briefly explained. In addition, ‘analogic argument’ (which is really a form of inductive reasoning) will be discussed, because analogic reasoning is the type of reasoning used within the English legal system where the courts argue from precedent to precedent. In fact analysis is a species of inductive reasoning. Reasoning itself is analogous to a journey: (a) prepare/collect information; (b) order/organise information; (c) start working through the information once the direction of travel is clear. When people set out on a journey, they normally have an idea of where they are going. If they do not know where they are going, this is usually a matter of deliberate choice. When people begin to consider argument construction, they need to know where they are going: To begin with the end in mind.’ Many students, however, do not know where they are going, hope they will know when they get there, and often give up exhausted and arbitrarily state ‘Therefore, this is the end’! It is not possible to craft a good argument by accident. Useful information to include as evidence for an argument may be uncovered accidentally; however, the argument can never be accidentally constructed. 7.8 TYPES OF LEGAL REASONING 7.8.1 Deduction Reasoning can be described as a careful journey through various propositions. Movement being allowed by evidence leading to inference. In deductive reasoning, the argument has to follow a prescribed form.

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Deduction can be useful if a new legal rule is being tested to discover whether it is going to clash with any existing legal rule. It can also be useful when precedent is being teased out for the first time and logical consequences need to be tracked. Logic distinguishes between deductive and inductive. An inductive argument can for example have as an inference a generalisation (eg, innocent people do not run away). Figure 7.9: generalisations A generalisation can be quite easily attacked as it is usually constructed on flimsy arguments. But it is also worth remembering that no argument can ever be 100% sound. Remember our system requires less than perfect proof: balance of probabilities in the civil area and beyond reasonable doubt in the criminal law. So, accusing someone of not having a perfect 100% argument is not a good argument! No one has a 100% case. 7.8.2 Induction There is another form of arguing which involves arguments that put forward some general proposition (the conclusion) from fact or facts that seem to provide some evidence for the general given proposition or group of propositions (the premises). This is perhaps the closest to the everyday legal argument when decisions are made concerning which side of a dispute is accorded the privileging of their story in terms of the law’s authority to provide an declaration of right followed by sanction and/or compensation. Inductive reasoning is similar to deductive reasoning in so far as the conclusions are based on premises. However, in inductive reasoning, the conclusion reached extends beyond the facts in the premise. The premise supports the conclusion, it makes it probable. Therefore, there is less certainty and it is possible that another conclusion exists. A sub-division of inductive reasoning is reasoning by analogy or analogous reasoning, this being the method best known to English legal method. The difference between deductive and inductive reasoning is that deductive reasoning is a closed system of reasoning, from the general to the general or the particular, and includes cases where the conclusion is drawn out; it is, therefore, analytical, whereas inductive reasoning is an open system of reasoning. It involves finding a

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general rule from particular cases and is inconclusive which suggests the end processes of legal judgments are inconclusive. However, when it is, the courts ensure that inconclusive reasoning can be enforced! Like deductive reasoning, the logic of inductive reasoning has no interest in the actual truth of the propositions that are the premises or the conclusion. Just because a logical form is correctly constructed, it does not mean that the conclusion expressed is true. The truth of a conclusion depends upon whether the major and minor premises express statements that are true. The statements may be false. Much time is spent by lawyers in court attempting to prove the truth of statements used as building blocks in the construction of arguments. In an inductive argument, the premises only tend to support the conclusions, but they do not compel the conclusion. By tradition, the study of inductive logic was kept to arguments by way of analogy, or methods of generalisation, on the basis of a finite number of observations. Argument by analogy is the most common form of argument in law. Such an argument begins by stating that two objects are observed to be similar by a number of attributes. It is concluded that the two objects are similar with respect to a third. The strength of such an argument depends upon the degree of relationship. Lawyers are advisers and they offer predictive advice based on how previous similar cases have been dealt with. All advice is based on the lawyers’ perception of what would happen in court; this is usually enough to ensure that, in the vast majority of civil cases, matters between disputants are settled. The lawyers’ perception is based upon their experience of how judges reason. Although deductive reasoning lends support to the Blackstonian theory that the law is always there to be found, there is room for the judge to exercise discretion. A judge will have to find the major premise. The judge may do this by looking at statutes or precedent. In the absence of statute, precedent or custom, he or she may need to create one by analogy or a process of induction. Once the judge has stated the major premise the judge will need to examine the facts of the case to ascertain if they are governed by the major premise. If this has been established, the conclusion will follow syllogistically. In the vast majority of cases, the conclusion will simply be an application of existing law to the facts. Occasionally, the decision creates a new law which may or may not be stated as a proposition of law. To ascertain whether a new law has been stated may require a comparison between the material facts implied within the major premise and the facts which make up the minor premise. To summarise, judges are involved in a type of inductive reasoning called reasoning by analogy. This is a process of reasoning by comparing examples. The purpose is to reach a conclusion in a novel situation. This process has been described as a three stage process: (1) the similarity between the cases is observed; (2) the rule of law (ratio decidendi) inherent in the first case is stated. Reasoning is from the particular to the general (deduction); (3) that rule is applied to the case for decision. At this point, reasoning is from the general to the particular (induction).

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However, if Anna alleges that she did not intend to take the book, this is an argument stating that there was no intention to permanently deprive the mens rea remains unproved and theft cannot be proved. These issues can be more easily seen in Figure 7.11. Figure: 7.11: the actus reus (act) and mens rea (mental intent) of theft 7.9 MAKING IT ‘REAL’—R v ANNA This chapter has given a brief explanation and has demonstrated the forms of, and the relationship between deductive and inductive reasoning. At the same time it has also introduced the two-part nature of most legal rules relating to criminal offences, the physical act (actus reus) and the mental act (mens rea). To make these distinctions come to life the rest of this section will deal with a fictitious criminal case of R v Anna. Anna has been accused of stealing a book from a shop. The first relationship that R v Anna will be used to show is that between deductive and inductive reasoning. The two approaches to reasoning are set out in Figure 7.12. Both the inductive and the deductive forms are for the prosecution. Can you rephrase them to provide inductive and deductive forms in favour of the defence?

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Figure 7.12: inductive and deductive reasoning It should not be overlooked that each inference placed by someone constructing an argument asserting Anna’s guilt can provoke one of the following counterresponses: (1) An explanation as to why the assertion is misguided. (Explain it away!) (2) A straight denial. (Deny the validity or existence of the evidentiary fact backing your inference.) (3) A rival evidential fact is set up and asserted. In fact it is important when setting up an argument that the potential dangers of inference are considered. For there are loopholes for error and one of the most common is overlooking the fact that sometimes there is just a plurality of causes. There can be alternative explanations. The important task is to identify possible alternative conclusions and test them out. The question then becomes which are the stronger inferences? Does your favoured argument look strong or does a counterargument stand up? As noted above inductive reasoning is the closest to everyday legal reasons, as inductive reasoning involves putting forward a conclusion that seems strong, based on inferences that provide evidence in favour of one party. So, your final argument will consist of a range of propositions or assertions that will invariably be backed by evidence. For some law problems, a cluster of arguments may need to be set up dealing with separate issues.

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Figure 7.13: the constituent parts of argument Whilst the diagram above looks simple it is necessary to bear in mind that the propositions may have alternative explanations and the evidence supporting these alternative explanations will need to be analysed. So at the level of factual analysis it has been demonstrated that, in relation to law, deductive argument requires extension by tracking through the process of inductive reasoning, starting with the minor premise of the deductive argument. 7.9.1 Abductive reasoning Lawyers inevitably look at possible inductive reasoning that counters their own argument, otherwise they could be caught by surprise. This involves constructing opposing hypothetical theses. The evidence a lawyer has may suggest alternatives, and perhaps even more plausible alternatives. This creative process which tends to argue around the data based on hypothetical matters, rather than on matters known, is called abductive reasoning. However, legal argument does not just involve factual analysis. It also involves legal analysis. Over the next pages of this chapter using the fictitious case of R v Anna both factual and legal data will be considered. Recall the definition of theft.

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through the premises. The conclusion is logically compelled and cannot be attacked. The major premise, however, may be targeted for argument. The major premise of the deductive syllogism that has been considered in this chapter (see Figure 7.12, above) was expressed as: • To steal is to act contrary to the Theft Act. This can be expressed in a more specific manner and still remain general: • It is contrary to s1(1) of the Theft Act to dishonestly appropriate property belonging to another with the intention of permanently depriving that other. The entire de ductive argument can then be set out as shown in Figure 7.14, below. Figure 7.14: a deductive argument Major premise (general) • It is contrary to s1(1) of the Theft Act to dishonestly appropriate property belonging to another with the intention of permanently depriving that other. Minor premise (particular) • Anna dishonestly appropriated a book the property of X store with the intention of permanently depriving the store of it. Conclusion (compelled) • Anna has acted contrary to s1(1) of the Theft Act. We could still attack the minor premise by using it as the thesis of inductive reasoning. However, this time we want to attack the major premise. One way of doing this is to check the interpretation of the words and phrases in the major premise in so far as they replicate s1(1) of the Theft Act. What do you consider to be the meaning of the phrases: • intention to permanently deprive (mens rea); • dishonestly (actus reus); • property (actus reus). These are important words and phrases that may well become the focus of legal argument in the court. We will note later in this chapter how these words and phrases are of major importance in a theft case. In order to explore their meaning, it is necessary to consult other cases where these words and phrases in the Theft Act 1968 have been discussed. Figure 7.15, below, sets out two opposing deductive arguments: one affirming the central deductive argument and one setting out to deny it. This type of structure is the skeleton of the majority of arguments revolving around the use of facts and legal authority to resolve legal dispute in a trial scenario.

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Figure 7.15: deductive argument and two opposing inductive arguments As can be seen, point 6 of the defence thesis in Figure 7.15, above, relates to the issue of intention, arguing that Anna did not have the necessary mens rea. Theft can only be proved if both the actus reus and the mens rea are present. The prosecution case argues that in fact Anna was seen instore taking the book by an eye witness and stopped and found with the book outside the store. This, argues the prosecution, demonstrates intention to permanently deprive (see points 1, 2 and 3 of the inductive thesis of the prosecution). The defence counter this argument by pointing to personal circumstances that negate intention (see points 2–6 of the prosecution thesis). As you are able to comprehend how the same information can give rise to differing arguments based upon evidence unknown to the other party at the time, you can appreciate the importance of careful construction of argument. In addition, of course, one needs to add the legal basis for the arguments found in the authority of decided cases. This will be considered later in the chapter. It is always a good idea to try and

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predict counter-arguments to your own. Then you can consider how you would deal with them. The essential quality of a well structured argument is that it takes the reader/ listener from the beginning to the end and makes them hold to the opinion that the argument is correct or the most plausible argument. Sometimes, the process of argument uses bridges from one fact to another that are not made of evidence but of inference. It is not wrong to assert a proposition that is not backed by evidence, but an adjudicating body is not compelled to accept the validity of an unproved proposition. It is difficult to refute a proposition backed by strong evidence but of course evidence is not always strong, it may be tenuous, or medium strong, etc. So, there are many variables present in an argument. One has to look for the weak points. Most adjudicating bodies have elements of discretion and can accept the tenuous but plausible explanatory bridge from one proven fact to another as the argument progresses to conclusion. Much depends on the minor or major nature of the proposition asserted. If it is pivotal for the case, then it must be backed by evidence. Lawyers will tend to take the little jumps with plausibility and, hopefully, the big jumps with proven propositions! At the everyday level of explanation, a legal argument tends to say: • This happened. • The following law states that this behaviour is illegal in certain circumstances. • These witnesses, these official documents, this forensic evidence prove that it happened. • It can be proved therefore that X did this. • X, therefore, broke the law. An essay may argue about theory, rather than fact, but the structures remain the same. Argument construction is not difficult if there has been meticulous preparation of information. The argument will be basic or elegant depending upon the development of skills, understanding of the law, the level of preparation, thought and reflection that has gone into the argument construction. What one gets back is proportional to the quality of what has gone in. A strong argument may ultimately be rejected if there is a fair amount of discretion, but the person who has forwarded it will know it is good. Indeed, often an adjudicator, even when deciding against an argument, will compliment the argument constructor on the art with which it was done. 7.10 THE MODIFIED ‘WIGMORE CHART METHOD’ Anderson and Twining (1991) brought the Wigmore Chart Method to the attention of legal educators. This is an interesting method using symbols, numbers and key lists to allow simultaneous consideration of evidence and facts to enhance factual analysis and ultimately impact legal analysis. The chart is set out in Figure 7.16, below, as a preview. The remainder of this section explains how such a chart is produced, what it says, and why it is indeed extremely useful as a teaching tool for argument construction.

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Figure 7.16: a specimen Wigmore Chart

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Do not be concerned by its appearance of complexity. It is a clear, manageable system of notation. The best understanding of this method can be obtained from briefly discussing it from three perspectives: 1 The original Wigmore Chart Method dating from 1913. 2 Anderson and Twining’s modification of the Wigmore Chart Method, from the mid-1980s. 3 Use of the modified method in this book as an aid for understanding argument construction. This will give a firm understanding of the discussions above through a practical demonstration. This discussion will then be followed by a practical demonstration of the modified Chart Method (changed slightly for our use) looking at the fictional criminal case of R v Mary. This is a demonstration devised to continue the development of argumentative skills already discussed in this chapter. A second case, R v Jack, is provided at the end of the chapter to allow students to try out their developing skills by analysing and charting a new case and building an argument. 7.10.1 The original Wigmore Chart Method John Wigmore wanted to restore an imbalance in the approach to evidence to be used in the trial. He first unveiled his views in an article published in the Illinois Law Review in 1913. He was concerned with issues surrounding the law of evidence. The law of evidence, as it is normally considered in university courses and in practice, is particularly concerned with the what type of evidence is admissible in court to prove the case of the parties. It is also concerned with the procedures that need to be followed to ensure that allowable evidence is not rendered inadmissible due to procedural and avoidable mistakes by those dealing with it before it reaches the court room. (This covers the field of forensic science as well as witness testimony.) Wigmore, however, believed that while the admissibility of evidence and the following of procedures are important aspects of the law relating to evidence, there was another more important area that had been completely ignored. This was the aspect of proof itself. What is the effect of the admissible evidence? How does it build to a finding of case proved for or against one party? Can it be said that there is a science of proof? Here of course issues relating to evidence and the construction of argument begin to merge. Wigmore sees proof in terms of the proving of points in argument persuading judges and juries of the outcome of a case. He argued:

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• the need for a clear object for the method (‘the object’); • ensuring that the method constructed complied with a range of criteria set (‘the necessary conditions’); • the structure (‘the apparatus of the method’). 7.10.1.1 The object Wigmore believed that the object of the enquiry was to make sense of a mass of data presented as evidence, and to deal with it in a logical manner. The method has to allow all the data to be viewed simultaneously, ie, at the same time to allow for a more precise evaluation of the persuasive proof of that evidence. The interesting issue here is that the data included assertions (she had the motive, she stole the book), as well as evidence relating to the act of theft (the book was not logged as sold on the sales system, the coffee shop assistant saw Anna take the book). So, it was to be a method that was able to take on board different types of evidence and argumentative propositions. Wigmore expressed his object as being able to:

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Figure 7.18: example of negative testimonial evidence Ordering of information This can be horizontal, vertical or diagonal. When information is vertical it is hierarchical. Facts supporting other facts are placed below the fact to be supported and linked by a line. Figure 7.19: testing understanding so far The probative weight of evidence. If one fact as explained corroborates another, it is connected by a line to the fact corroborated, etc. See the line in Figure 7.19. As soon as we believe the fact to be true the connecting line is changed to an arrow pointing in the direction of the proof (see Figure 7.20, below). Figure 7.20: demonstration of belief and direction of proof If we come to question the link we remove the arrow and place a question mark against the connecting line. If we come to doubt the truth of the testimonial evidence itself we place a question mark in the symbol (see Figure 7.21, below).

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Self-test: what do the following symbols in Figure 7.25, below, tell us? How many symbols are there? Figure 7.25: self-test re: symbols The analysis of the chart The last stage is analysis, as the chart is only the means to the ends! As the full chart is considered links between propositions and evidence can be more clearly seen. The point of the chart is the juxtapositioning of the evidence, facts, assertions, etc in a way allowing simultaneous viewing so that they ultimately lead to a single finally believed outcome. The process of reaching the outcome is the argument. The outcome is the conclusion of the argument. Wigmore had many symbols denoting explanation, weak and strong inferences, the movement from doubt to belief, unsupported and supported inferences. He had symbols denoting object as opposed to person testimony, symbols for denials, rival assertions, and for generalisations, etc. His charts were extremely complicated matters taking many hours to construct, which is probably why his methods were not widely taken on board in American law schools, although he himself used the method in his teaching for 40 years. In addition whilst the complex symbolic networks that he set up appeal to some students, many are perhaps fearful or completely alienated by what appear to be complex mathematical structures. When Wigmore first set out his chart method in 1913 he said that it was not the symbols themselves that were important but the simultaneous juxtaposition of facts. Therefore the person constructing a chart could use their own symbols. Anderson and Twining did just that and made some changes to the charting method (that is, they modified it) for teaching. It is a good modification and is discussed below. 7.10.2 Anderson and Twining’s modification of the Wigmore Chart Method In an excellent book, Analysis of Evidence (1991), Anderson and Twining take the time to discuss the uses and limits of a Wigmore chart as a tool of legal education. They also note its use in other areas that require investigative tools. They recount an interesting story that demonstrates the far reaching applications of the method that Wigmore devised. They record David Schum presenting Wigmore’s Chart method without revealing its source to a group of computer analysts in the 1980s. When he asked them to predict when the system was invented the earliest date given was 1970! The analysts said the sophisticated inference networks had not been developed prior to the 1970s. In the 1990s David Schum and others have

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effectively applied Wigmore’s methodology to intelligence analysis, and other complex inferential systems such as weather forecasting. If Wigmore’s method was to be able to cope it had to be able to deal with inference networks referring to the ways that evidence was dealt with in previously decided cases. All inference networks require chains of reasoning—links—and nothing is ever final, there is always a missing link. These factors constitute the complexity of inference networks. Wigmore’s Chart was designed to take this into consideration. Therefore, as developed it allowed the construction of complex arguments, detailing chains of reasoning and linking evidence to matters to be proven, which is why it is a useful method to be applied to investigative and analytic tasks. Technically a Wigmore Chart can be described as a form of Directed Acyclic Graph (DAG). Figure 7.26: meaning of Directed Acyclic Graph • It is—Directed if it shows the direction of reasoning via arrows (when belief in the connecting established). • It is—Acyclic if you following any reasoning path or path of probabilistic inference you are NEVER led back to exactly where you started. This must never happen because if it does you are actually stuck in a probabilistic inferential loop from which there is no escape! • It is a—Graph because it is a symbol based representation with translation. Wigmore’s Chart is most immediately concerned with the issue of the relevancy, credibility and the probative force of evidence. The linking of these issues in the mind of the student is essential. When joined to critical analysis the student will be placed in a position to construct the best argument that is available. 7.10.2.1 Uses and limitations of the Wigmore Chart Method As has been indicated the chart in its full form is extremely time consuming to create and for that reason may be of extremely limited use to practitioners. However, it has great potential as a learning tool. Indeed, Wigmore used it for over 40 years with his own law students. It was its educational value that caught the serious attention of Anderson and Twining. The chart method creates awareness about the nature and construction of argument and as a result students recognise how arguments are constructed using relations between propositions supported by proof. This awareness is not often directly encouraged within the parameters of legal education. The chart therefore brings argumentative structure out into the open as an object of consideration. Then judgements can be made about its probative and persuasive force. Twining absolutely correctly says that if a student goes through the process of analysis in just one case in a disciplined way they gain an awareness of how easy it is to get argument wrong because they can see:

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• reliance on unidentified generalisations; • fallacies in argument; • presentation of irrelevant material; • gaps in reasoning and logical jumps being taken; • shifting standpoints being left unacknowledged; • propositions not supported. If there is a gap or a doubt in your argument it is better to find it yourself and work on it. Then you can at least connect gaps in reasoning by propositions that are unsupported and know that you have done this and thus be in control of your argument. Anderson and Twining suggest there are in fact seven stages to a chart: (1) Clarification of standpoint (why is the chart being constructed). (2) The formulation of UP (ultimate probanda). (3) The formulation of PP (penultimate probanda). (4) Formulation of theory/choice of propositions (interim probanda). (5) Key list. The chart and key list are the means not the ends (6) Chart. (7) Complete analysis. Each of these will be briefly described. 7.10.2.2 Clarification of standpoint We have noted the issue of standpoint. Schum noted that standpoint affects inference network construction. In addition how can an audience assess the chart created without a knowledge of the standpoint of the creator? The greater the detail that the charter goes into in relation to inference networks the greater the extraction and/or revelation of conditions of doubt. So, it is important to constantly ask oneself ‘Where are we in the process?’, ‘What are my objectives?’ and to be aware that one’s standpoint can change in the execution of one project. Basically, we can say that standpoint is the function of three variables: • Time and location (Wigmore had in mind the trial arena). We will have different times and locations depending on the exercise. Usually however it will be post trial. We will often be asking: was the court right on the evidence presented? Was there another story that was more probable? Although we may set exercises presenting as pre-trial. • Objective purpose—organisation, evaluative, advocacy, educational. • Role. 7.10.2.3 The formulation of the ultimate probanda Probanda is the latin term for proposition but the latin is more flexible allowing a number of connections to be made. The term is therefore retained. The UP is the touchstone of relevancy controlling the relationship of all other propositions in the

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10.2.6 The construction of the list As stated above the chart is a series of linked numbered symbols translated through a narrative key list: the chart records the propositions that define all evidence being considered and all interim, PP and UP. The synthetic element is the chart showing the link patterns. 7.10.2.7 The chart The chart is constructed simultaneously with the key listing. We will look at this shortly. 7.10.2.8 Completion of the analysis Again it is necessary to remember that the chart and key list are not the end of the process but the means of engaging in analysis. Nothing in this process should suggest that it is a mechanistic process. In so far as it allows the construction of argument it teaches how an argument is constructed, but it cannot decide how important evidence is. The user has to make this decision, evaluating strength, persuasive value, credibility, or positive or negative effect. It cannot tell the user if the evidence assembled is admissible. The chart orders material and shows relationship and gaps. The chart does not solve problems. If there is a gap the user has to decide how to deal with it at the moment of analysis and argument construction. The human element in handling, locating, ordering, analysing evidence and constructing argument remains an act of knowledge, experience and imagination. Each inference requires an evaluation of its persuasive operation. Then the user needs to come to a view concerning the persuasive effect of the total mass of evidentiary facts. Stephen Toulmin: ‘Logic is concerned with the soundness of claims we makewith the solidity of the grounds we produce to support them, the firmness of the backing we provide for them.’ What is the objective? For a process model it may be solving a diagnostic model or increasing understanding of complex things or for knowledge acquisition. Wigmore’s analytic methods says Schum are ‘a conceptual microscope that allowed me to examine many subtleties in evidence’. The important point is to show alternative conclusions and test them out. Do they, or your counter-argument, stand up? Each inference can lead to the following processes: As we noted earlier in the chapter, an assertion can be met by: • explanation; • denial; • rival assertion. All counter-responses to your argument fall into a category that either: • explains it away; • denies the existence of the evidentiary fact; • offers a new rival evidential fact.

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10.3 The modified chart as used in this book This book uses aspects of Anderson and Twining’s modification of the Wigmore Chart Method to demonstrate how propositions, evidence supporting propositions, and relationship between propositions work together with forms of deductive and inductive legal reasoning to allow outcomes to be reached in relation to factual and legal analysis. Further, it allows a demonstration of the ways in which critical thinking applied to the outcome of such factual and legal analysis allows competent and valid conclusions to be reached which can be on either side of an argument (for or against a specific party). This book has in fact narrowed the symbols used and the information placed on the chart. These changes are as follows: (a) The chart is only constructed for one party at a time. One symbol is used to denote all additions to the chart, a circle. (b) The chart therefore shows less information but remains useful. The range of symbols used in this book for its adaptation of the Wigmore Chart Method are as set out in Figure 7.27, below. Figure: 7.27: symbols used for the adapted and modified Wigmore Chart

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Turn back to Figure 7.16, above, and consider the meaning of the symbols using the explanations given in Figure 7.27, above. 7.11 THE DEMONSTRATION OF THE WIGMORE CHART METHOD: THE FICTIONAL CASE OF R v MARY To give students the experience of walking through the method to develop their understanding of how a legal argument is put together, a reasonably simple criminal law scenario has been created. However, the facts of the case are not laid out. They are to be found located in three statements made by two witnesses connected to the situation, and the statement of the defendant. From these statements the first task is to assemble the relevant facts, note the evidence available, note the elements of relevant law, identify any conditions of doubt at the factual level and construct a chart and key list for use by the prosecution. Having constructed the Wigmore Chart, the factual analysis takes place which clears the ground for the legal analysis. This gives a demonstration at a simplified level of the relationship between factual and legal analysis and the need for both to construct arguments. At the academic level of legal education the problem is a given, it does not mean there is no value in an appreciation of fact analysis. On the contrary it can be used to assist us to see more clearly the issues to be teased out when engaged in the legal analysis. 7.11.1 The case of R v Mary Mary has been charged with theft under s 1 of the Theft Act 1968.

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The statements in the case of R v Mary

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The basic issue surrounds whether the law has been broken. We have been told Mary has been charged with theft under s 1 of the Theft Act. We are to assume that the three statements provided containing all of the information in this scenario have been produced just for us to read and work on. For the purposes of this exercise we will assume that these statements were produced in ways not calling into doubt their admissibility or credibility. This means therefore that we only have to concentrate on their probative value. (What do they prove?) The seven point approach of Twining and Miers will be used. 1 Standpoint: the standpoint of the Chart is that of the author of this book demonstrating the Wigmore Chart Method for the purposes of demonstrating the method and argument construction. 2 Stages 2, 3 and 4: relate to setting up the propositions and then key listing and charting. The impossibility of approaching each task in an isolated way is immediately perceived as we are going to work from statements. We have to find out the facts before we can draft the UP, PP, and interim probanda. Task: so that you can appreciate the levels of analysis go back to the statements and highlight the key words and phrases that begin to allow you to break into them and locate the story, and the law. Then try to give answers to the following questions: (1) What are the relevant facts? (2) What key phrases in the statements give you clues as to the application of the law? (3) Can you construct the deductive argument for the prosecution? (4) Can you construct the inductive argument for the prosecution? (5) Can you construct the opposing inductive argument for the defence? (6) Are there any conditions of doubt in your mind surrounding the wording of s1(1) of the Theft Act which may apply? (For example questions surrounding the presence of both mens rea and actus reus.) DO NOT PROCEED UNTIL YOU HAVE ANSWERED QUESTIONS (1)–(6).

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Figure 7.30: levels 1 and 2 of the chart Then we can insert arrows, and indicate the status of the testimony is it believed ( selected from the statements. These were hinted at in Figure 7.28, above, which annotated the witness statements. Go back to the statements and remind yourself what they said. Do you already have a good idea of what is at issue at the level of fact and evidence? What should be put under item 5? This indicates the mens rea. What might you as a prosecutor be looking for? What might you as the defence be looking for? The arrows have now been placed on the chart and symbols for belief and uncertainty. Now look at Figure 7.32, below, which has a number of interim probanda (items 6–26). Did you notice most of these when you first checked the statements? As can be seen the main areas of uncertainty concern PP 2 and 5.

), disbelieved ()or is its status doubted (?). Figure 7.31: levels 1 and 2 with indicators of links, belief and doubt 7.11.4 The interim probanda The next levels require you to have identified facts and evidence which has been

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11.5 The analysis Having laid out the chart (and this chart will be left at this point although there is more that can be done), we can see two major problem areas, because the chart is structured to lead to the UP through the PP (that is, the elements of the legal rule concerned). We are able to notice at once where there is strength and where there is not. Looking back at Figure 7.32, it can be seen that there are major queries relating to PP 5. This is the PP concerning intention which in s1(1) is the only element of the mens rea. So, unless more certainty can be achieved in this area there is a problem. In addition, PP 2 has a question mark indicating uncertainty. This is the element of the actus reus requiring the dishonest appropriation but Mary alleges she acted in the certainty that Andrew would have lent her the money: in other words she had his permission. We can see that there are many elements of strength stacking up under PP 2 but a key issue is 14—going into Andrew’s room without permission. So clearly we are interested when we turn to the legal analysis in looking at case law dealing with this issue. Although we have tried to counter the problem with 14 by saying in 18 that Mary was wilful about whether she had permission or not, in the circumstances can we allege this? So we should explore the following matters in the case authorities. (a) Actus reus Re: PP 2 • What is the legal meaning of dishonestly? • Does it include believing that you have permission to take something? • What is the test for a reasonable belief that you have permission? Is it according to what other reasonable people would think (an objective test) or is it according to whatever Mary thought—no matter how unreasonable? (A very subjective test.) • Can we argue she had conditional permission to take £20 for a skirt but she spent the money on something else? Does that matter? If she thought Andrew would give permission for the skirt does it matter that she went to the cinema and got a take away meal instead? (b) Mens rea Re: PP 5 Mary said that she did not intend to permanently deprive Andrew of his money. • However, she said she would pay Andrew back on Monday, yet she clearly would have no money until Thursday. Does this matter? • Does this suggest an intention to permanently deprive? Are there cases covering this? As you can see whilst the chart is excellent at its task (factual analysis) it only highlights the areas for legal analysis. Which is why the charting process leads to legal analysis. This is the moment to look for answers at the level of statutory sources and case law which we will do briefly. We will just make a few explorations to indicate how this matter can be pursued.

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Ghosh [1982] QB 1053; 2 All ER 689 a two point test was developed. Two questions had to be asked: (1) Was what was done dishonest according to the ordinary standards of reasonable and honest people? If the answer is ‘no’ the defendant is not guilty as there is no proved dishonesty and a vital element of the actus reus is unproved. If the answer is ‘yes’ then the second question has to be asked, (2) Did the defendant realise that reasonable and honest people regard what he did as dishonest? If the answer is yes then the defendant is guilty. In our case Mary may well find that the answer to the first question would come in as ‘no’ and she escapes liability. Should it not, the second question should be answered in the negative and she still escapes liability. Most reasonable and honest people would regard the taking of the money in the precise circumstances reasonable and not dishonest. The discussion of the issue of permanent deprivation as a core aspect of the mens rea would next be discussed. However, this demonstration is to indicate the relation ship between factual and legal analysis and the way in which factual analysis facilitates legal analysis and argument construction. The standard legal problem question (which will be discussed in Chapter 8) is of course less obviously liable to give the information required for a full factual analysis. However, in terms of knowing what to look out for at the level of facts and evidence, it allows the map of potential areas to be developed. 7.12 TASK: THE CASE OF R V JACK For those of you who would like to test your skills further there is another charting task with a set of witness statements in the fictitious case of R v Jack. The law applicable is again s1(1) of the Theft Act. (1) Construct your own Wigmore chart and keylist for the defence. (2) Use your chart to determine the strengths and weaknesses of the prosecution case. (3) What further evidence would be useful for either party. (4) Write out an argument for the prosecution to prove that Jack is guilty. (5) Write out an argument for the defence to prove that Jack is guilty. There is no necessarily correct answer, and the statements are provided as an opportunity for developing your skills in the area of factual analysis and argument construction either in or out of a classroom setting. 7.12.1 Statements relating to the case of R v Jack 7.12.1.1 R v Jack Statements for Wigmore Chart Jack has been charged with theft (contrary to s1(1) of the Theft Act 1968) of a shirt from the New Style Clothes Shop on 12 September. Below, you will find witness statements. Read them carefully and construct a modified Wigmore Chart for the defence.

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WRITING ESSAYS AND ANSWERS TO PROBLEM QUESTIONS

This chapter considers the differences and similarities in approach required to produce written work in the form of essays and answers to legal problem questions.

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Once the student is in control of the texts, then the texts can be manipulated, alternative arguments can be constructed and student understanding of the relevant area or topic increased. Often, a student merely hands in a precis of a string of articles, texts and cases and calls it an essay. This is not an essay presenting a serious argument for consideration, supported by evidence and it will not attract a good mark. However, the precis, or summaries, if they are well prepared, can provide the basis of argument construction and good written work. In an exam situation, as well as in coursework, students often take a lot of time discussing the facts and the outcomes of cases or the description of argument in texts, but often demonstrating little appreciation of the issues raised by the cases and little understanding of their relevance or application to the question. This is not because they are not capable of understanding but because they did not spend the proper time thinking about what the question was asking, preparing the texts to be used and constructing argument in written form. 8.2 LEARNING OUTCOMES By the end of this chapter, readers should: • be aware of the differences in approach that need to be adopted for essays and problem questions; • have confidence preparing for both types of assessment; • be able to structure work effectively; • be able to bring together the skills of reading and argument construction and demonstrate competency in writing. 8.3 PREPARATION AND STRUCTURING OF ESSAYS In answering a law essay question students are required to produced a piece of work offering a sustained argument concerning a particular question. Generally speaking, essay questions are set in the following formats: (a) A question is set to be answered. (b) A quotation is given with the bland request to discuss. (c) A quotation is given and there is a request to extract issues. Generally, an essay involves discussion in the formal sense of laying out an argument. In fact, the Latin stem of discuss is ‘discutere’ which means to ‘to dash to pieces’, a rather forceful way of describing argument. The more usual way of describing the meaning of the word ‘discuss’ is ‘to investigate or examine by argument, to sift, and to debate’. The word is often wrongly used and understood to mean just idly talking. Reading many student essays does lead one to suspect that students are idly and haphazardly just writing and wasting their hard work. Each type of essay question requires a different approach, but the same general structure is required and the same store of information can be used. This also holds true in relation to problem questions, which are discussed at the end of this chapter.

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The word essay means ‘to lay out an argument’. All writing revolving around the laying out of argument in the form of an essay has a disarmingly simple structure: (a) An introduction laying out the brief details of the argument, describing succinctly the issues the essay will discuss (and why) and hinting at the conclusion. It is important to ‘begin with the end in mind’. The introduction can be thought of as the road map to the essay, detailing to the reader where they will be taken. Do, however, make sure that in your conclusion you have taken the reader to the place you said you were taking them to! The introduction should be refined and finalised when the main body of the essay is finished and your conclusions are clearer. (b) The main part of the essay, which is often referred to as the body of the text. Here, you will set out the propositions of your argument in a carefully preplanned manner with each proposition supported by the evidence from the texts, cases, etc that you have consulted. (You should be clearer about argument structure having worked through Chapter 7.) It is absolutely essential to refer to case law, legislation, and textbooks and articles as appropriate in this main part of the essay or you will have nothing but unsupported claims that do not constitute an argument. (c) Your conclusion. This is • either—in answer to the specific question asked; • or—finalises your own decisions concerning the critique and review of information you have been given ‘to discuss’; • or—your final views on the issues you have been invited to extract for discussion. Your conclusion should align with your introduction and contain a brief survey of your argument and evidence as laid out in the body of the text, detailing strengths and weaknesses and then moving to your specific concluding response to the essay task. To obtain an idea of how essay tasks can differ in what they ask and the way they are presented read the following four sample essay tasks.

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4 METHOD FOR THE PREPARATION AND CONSTRUCTION OF ESSAYS (1) Stage 1: carefully reflect on the question • What is being asked? • How many issues are raised? This is an exercise in basic English comprehension. The question has to be deconstructed. It is very useful to convert it into a tree diagram that can be annotated as texts are collected. The actual essay question must be constantly borne in mind as texts are read and research is conducted. (2) Stage 2: search for relevant texts Locate: (a) legal rules; (b) legal discussion/decisions in: • cases; • textbooks; • articles. Once the issues raised by the question have been discovered and preliminary reading undertaken in the textbook, it is useful to scan the following: handouts from tutors, articles mentioned in the footnotes or endnotes in set textbooks, databases or relevant indices of law journals, databases or current law citator for up to date cases, legislation, etc. (3) Stage 3: carefully read, note, organise and reflect on the material collected As you locate material that is relevant, photocopy it and highlight it, or make notes. Extract arguments presented and then reconsider the question. The first task is reading, asking the basic questions detailed below, whilst at the same time recalling the actual issues detailed in the essay question you are doing the research for. Otherwise relevant details in your material could be overlooked. Recall that you were introduced to the three reading techniques of skimming, scanning and detail in Chapter 6. Each of these techniques will be deployed as you approaching reading through your material. As you read texts you need to ask yourself questions which differ according to the text you are using. For example (a) Law cases: • What are the facts? • What legal rules have been applied and why? • What aspects of this case are relevant to my essay? • How do the arguments presented assist in relation to the essay?

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(b) Textbooks: • What is being described? • Do I understand? • Does it fit with my understanding of the cases? • Have I properly grasped the issues involved? • What is of relevance to my essay? (c) Articles: • What is the writer’s argument? • Is it well supported by the evidence? • Does the writer’s argument support or deny my argument in the essay? Is there a majority view developing in the texts concerning any of the issues raised by the question? Go back to the diagram of the essay question made under Stage 1. Note beside the various issues aspects of the texts that are of relevance to the issues identified as requiring discussion to answer the question. It is important to remain open to the possibility that personal ideas may change as more research is conducted and some texts present persuasive arguments that had not been previously considered. (4) Stage 4: begin to form a view of possible arguments to be used to answer the question Add these to your diagram. (5) Stage 5: consider the strength of your argument This stage is important. You should by now have a reasonably clear idea of how your argument may look. You will know what supporting evidence you have and where you lack support. Argument construction has been specifically dealt with in this text and can be located in Chapter 7. You do not have to throw out weak arguments if they serve to build a broader picture and support a broader argument. (6) Stage 6: begin to write the essay plan Look at: • the diagram of the question; • the notes of cases and other texts; • the notes of your personal ideas/argument. (7) Stage 7: write the first draft of the essay Although you will have an idea of what you are doing and where you are going and indeed what your answer is to the question it is a good idea to start your detailed first draft in the body of the text.

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Begin with the middle section: • Review everything for your conclusion. • Write the final introduction last, ensuring that the body of the text and your conclusion does what your introduction says they will do, and finalise your conclusion. (8) Stage 8: write the final version of the essay During the review: • consider whether there is a need to search for any more texts; • pay particular attention to the conclusion and thoughts on the introduction; • also review the argument. Is there evidence to back it up? Have opposing views been dealt with? This method can also be more immediately represented as a flow chart (see Figure 8.1, below). As you will have by now noted, writing is not a passive act. In Chapter 9, this method for writing an essay will be demonstrated by applying it to Question 4, above. 8.5 METHOD FOR THE PREPARATION AND CONSTRUCTION OF ANSWERS TO PROBLEM QUESTIONS It is now appropriate to turn attention away from essay towards the other major type of written assessment that is found on a law programme—the problem question. Problem questions can only be set around substantive law topics as they rely on the consideration of cases, common law, legislation and increasingly aspects of European Community law. These questions often also require knowledge of how an issue has been dealt with in another common law jurisdiction. Students are expected to competently handle rules and use the doctrine of precedent in practice. It is possible for some examination papers to be 50–75% problem questions, or perhaps even more. Even in courses that seem to be more discursive (such as English legal system) it is possible to construct some problem questions concerning police powers for example, and in constitutional and administrative law (now often called public law), there can be problem questions in relation to the administrative aspects of the course. This section discusses in detail what the function behind problem questions may be and with that in mind looks at moving towards a strategy for answering problem questions.

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(1) Stage 1: correct analysis of the constituent parts of the problem question (a) Identify the FACTS given—place on a tree diagram. (b) Identify the primary and secondary LEGAL ISSUES raised by the facts, available defences and doubts in the law. Place on a tree diagram of the issues. List the issues under the facts. (c) Consider the LAW THAT MAY APPLY (eg, legislation or common law and/ or European Community law). The sources of law to be drawn on will vary according to the particular subject. Quickly list these under the issues on the tree diagram. (2) Stage 2: Begin to work on discrete aspects of the problem question (a) Decide the order in which issues will be raised in your answer. (b) Consider your view of uncertainties and gaps in the law in the area. (c) Consider issues of interpretation and defence. A doubt about the interpretation of the law is not a defence, it is a doubt about the law. Make sure you do not make this mistake, as they require a different approach. (3) Stage 3: Decide your view of the outcome of the specific questions asked in the problem question The facts in a problem question can give rise to many issues but all of these may not be necessary to resolve the specific question(s) set in your problem. Problem questions tend to ask you to do two main things: (a) Discuss the issues raised in the problem scenario. OR (b) Advise one of the parties. Both types of problem question require the same knowledge to successfully answer them. However, your approach will be different. (In fact essay questions can be drawn from the same knowledge but also require a different approach.) • In those drafted in response to a question in the style of (a) you raise all issues without privileging one party. • In those drafted in response to a type (b) question you raise all issues but orientate to your argument to the effect of those issues on the party you are asked to advise. This includes discussing in detail the likely chances of the other party being the successful party. 8.5.3 Demonstration: beginning to answer a specific problem question The key to successfully answering a problem question lies in spotting the ‘clues’ to the issues to be discussed. Many of these are purely linguistic. We will look at one particular problem, Problem Question 4, above, applying the stages outlined above.

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(1) Stage 1: correct analysis of the constituent parts of the problem question (a) Identify the FACTS given—place on a tree diagram. (b) Identify the primary and secondary LEGAL ISSUES raised by the facts, available defences and doubts in the law. Place on a tree diagram of the issues. List the issues under the facts. (c) Consider the LAW THAT MAY APPLY. The first task is to read the question and determine the topic. The problem chosen is contract. In an examination the speed with which a problem question is narrowed to a topic and then to issues within that topic can be of exceptional importance since time is of the essence. (Part of the technique is having engaged in consistent study techniques so you are up to date in your course study and your revision if an examination is involved.) You should have a clear idea of the areas of doubt where currently the law is unclear, as often this is the area in which problem questions will be located. The first stage of analysis involves a combination of linguistic ability and legal knowledge. The problem question can be underlined and issues drawn out in a very simple first reading. This combination is demonstrated in Figure 8.2, below. The words that are the clues to the legal issues are boxed and arrows leading from these words begin to discuss the legal issues raised. There are two things to note in a problem question like this one that comes with two labelled parts (a) and (b). You must answer both parts unless instructed clearly that candidates are to answer either (a) or (b). Many students can fall here and assume there is a choice. Do not exercise a choice unless this is clearly given otherwise you could lose half of the marks going for the problem question. As can be seen a lot has been done to interrogate the question and divide it into its parts. It is important to break the question down into its constituent issues, so that the context of (a) and (b) can be appreciated. (2) Stage 2: begin to work on discrete aspects of the problem question What should also be apparent is that you need to have a view as to whether a contract has been concluded between Cedric and Dorothy, and if so when, before (a) or (b) can be answered. The issues to be considered can also be set out as a narrative. These are: (1) What is the effect of Cedric writing to Dorothy to offer to sell the coin? (2) What is the effect of Dorothy’s letter? (3) What is the effect of Cedric’s two suggested responses: (a) that he ignored Dorothy’s letter; (b) that he put a sticker on it saying sold but Dorothy did not collect it? It should by now be apparent it was not the first time that the issue revolved around whether there has in fact been a contract concluded. The answer to this is dependent upon whether an offer and an acceptance can be located, and if so where they stand.

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Figure 8.2: facts and legal issues

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Again, your approach should be to break down the question into its constituent parts: (a) The effect of Cedric’s letter—is it an offer or an invitation to treat? (b) The effect of Dorothy’s letter—is it an acceptance? Do the postal acceptance rules apply? Is Dorothy’s letter a statement of intention? (c) Is Dorothy’s letter an offer? Can she waive the necessity for the communication of the acceptance if she so chooses? The question therefore expects you to carefully consider the facts and the uncertainties, consulting case law and perhaps texts in areas touching on these matters. As we have noted in our responses in Figure 8.2, above, with regard to part (a), if a contract has been formed, then Cedric is in breach of this contract when he sells the coin to Timothy. With regard to case law and commentators it does seem highly likely that, in these circumstances, no contract has been formed with Dorothy and Cedric is free to sell the stamp. With regard to part (b), if Dorothy has made an offer, not an acceptance, then Cedric has possibly accepted the offer when he takes the step of setting aside the stamp, as it is possible to show acceptance by conduct. If this is the case, a contract has been formed and Dorothy is obliged to buy the stamp. It needs to be noted that there are flaws and weakness in this particular question. There are, however, significant weaknesses in reaching this conclusion. It should also be noticed that at present we have suggested issues but as yet we have: • No argument by way of linked propositions; • No proofs (law cases) supporting or denying our propositions (or texts discussing areas where the law is unknown or uncertain). Without a sustained argument backed by law cases there is no competent answer to the problem question! Yet often students stop at teasing out the issues in a haphazard way and maybe, just maybe throwing in one or two general cases. Can you begin to see the difficulty? Having used the word identification to sort out the legal issues they come down to the following.

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Figure 8.3: locating the contract

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6 SUMMARY This chapter has considered in detail ways of structuring approaches to written work in the area of law. It has highlighted the importance of being clear about the approaches required in the particular type of written work that you are doing. With this in mind the chapter has distinguished between various types of essay question and various types of problem question. The point, however, has also been made that the same type of information base is required for all questions. It is how this information, knowledge and understanding is drawn on to produce a particular written result that is important. The next chapter brings together all of the skills and many of the discrete legal areas touched upon in this book to demonstrate how skills work together to produce one result, competent legal reading, argument construction and writing.

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• EC legislation; • opinions of the European Court of Justice (ECJ); • decisions by the domestic courts of Member States in similar areas; • explanations in textbooks; • arguments in specialist articles. In addition, the student has to: • keep the doctrines and principles of the two legal orders (the Community’s and the UK’s) in mind simultaneously, and still remember to answer the specific question asked! This can seem a daunting task, but if the lower order skills of: • organisation; • classification; • identification; and • summarising, are methodically deployed, then the texts will be broken into and sifted and made ready for answering a specific question. The competent execution of the lower order skills allows the development of the higher level cognitive skills of: • analysis; • evaluation; • critique; and • argument construction. Once the texts have been carefully prepared by ordering and summarising: • potential arguments can be reflected upon; • arguments can be compared; • differences of opinion expressed by judges and academics considered. At this point, the student can indeed begin to have a personal view and write about it. The initial task is to: • understand each text as much as possible in isolation; • consider the interconnections between the texts. Law cases and texts that conflict are as intimately interconnected as law cases that agree with each other. The student needs to be able to put together: • cases and arguments that are the same; • cases and arguments that are different; • cases and arguments that are mixed in that in some areas they agree and in some areas they disagree. Chapter 7 on identifying and constructing arguments demonstrates that no problem is ever a simple unitary matter; that problems come in bundles. Whilst questions posed may appear simple and unitary, they never are.

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3.2 Stage 2: search for relevant texts The relevant texts have already been determined in this case. Normally, however, once the issues raised by the question have been discovered and preliminary reading undertaken in the textbooks, it is useful to scan the following: • handouts from tutors; • articles mentioned in the footnotes or endnotes in set textbooks; • available databases or relevant indexes of law journals; • available databases or Current Law Citator for up to date law cases, legislation and so on; • one of the article databases (such as Igenta) or indexes to various journals in years that are thought to be salient. 9.3.3 Stage 3: carefully read, note, organise and reflect on the materials collected • Precis them. • Extract arguments presented. • Reconsider the question. Here, it is relevant to turn to the limited materials used for this essay—the extracts from the two cases and the textbook by Tillotson. The first task is reading, asking the basic questions detailed below in relation to cases and texts, all the time recalling the actual issues detailed in the essay question, otherwise, relevant details could be missed. As you read texts, you need to ask yourself the following questions: • Law reports: What are the facts? What legal rules have been applied and why? What aspects of this case are of relevance to my essay? How do the arguments presented assist me in my current essay? • Textbooks: What is being described? Do I understand? Does it fit my understanding of the cases? Have I properly grasped the issues involved? What is of relevance to my essay? • Articles: What is the writer’s argument? Is it well supported by the evidence? Does the writer’s argument support or deny my argument in the essay? Is there a majority view developing in the texts concerning any of the issues raised by the question? When you have done this go back to the diagram of the question. Note beside the various issues aspects of the texts that are of relevance to the issues identified as

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easy with the short case of George Mitchell, a little more tricky with the length of Van Gend en Loos, although a table format simplified matters. The Factortame cases also have non-bracketed numbering to assist with cross-references. But here, a paragraph precis would create a book and not be very helpful. Yet the markers are useful. Paragraph clusters can be considered dealing with particular issues. The approach taken to this series of cases will be to ask you to: • skim read: literally imagine that you have a pile of papers and are flicking them through your hands. But skim read a little more slowly than this! Do not stop to read in detail. Look out for: headings; courts, to find out the procedural history; dates, get a feel for the chronology of events; what are the issues in the case? The skim reading will be followed by more detailed readings involving casenoting. (2) First skim reading of Factortame cases The extracts from the two law cases are set out in Appendix 3; turn to them now and read through them. Be warned, however, that these are long cases; therefore, if you take one minute to read a page—which is quite fast—it would take 75 minutes to read it all. This puts the task into context. So make sure that you have enough time to do this task. The cases are also of invaluable assistance for the micro-analysis of legal method—how to break into a highly complex set of cases giving vast amounts of information running to hundreds of pages. The length of the report is daunting and the language and content of the text formidable. However, persistence will allow the refinement of your developing skills of organising, comparing, describing, classifying and identifying facts and legal rules. Do not proceed until you have skim read the cases and taken notes according to the above guidance: Note how long it takes you to do so. Read the cases with your deconstruction of the question to hand so that you can ensure that you are constantly reading with a view also to the question. Having looked at the cases and made notes answer the following questions: (1) Describe your immediate reactions to the texts, to the issues, to the things you understood and to the things that you did not understand (you may relate to Figure 9.3, below). (2) What you think the cases were about?

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essential to understand the nature of the legal issues raised at the original trial, as the appeal is a consequence of the trial! As an appeal progresses, there may be changes to the grounds of the appeal. If the developmental history of the appeal is not properly understood, important changes may even be missed. (a) Go back to the judgment of Neill LJ and show as concisely as you can on a tree diagram the following information: • Who were the applicants? • Why did the applicants appeal? • What exactly did the applicants want the court to do? • What legal rules were being relied on by the applicants? (b) Read the Court of Appeal judgment and set out as concisely as you can on a tree diagram the answers to the following questions: • Who were the appellants? • Why did the appellants appeal? • What exactly did the appellants want the court to do? • What legal rules were being relied on by the appellants? (c) Now read the House of Lords’ judgment, and again on a tree diagram set out the answers to the following questions: • Who were the appellants? • Why did the appellants appeal? • Why is there an opinion by the ECJ in this judgment?

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much information will also have been assimilated concerning the reasoning of the court in response to the issues raised. As students read judgments with the facts, issues and relationships between legal rules in place, then it becomes an easier task to isolate the text relating to the reasoning process. As the text is mentally ordered and classified, relevant aspects of the judgment in relation to reasoning can be identified, weak reasoning can also be considered. It is then less daunting to deal with a line of cases changing legal rules or the interpretation of legal rules. If a statistical breakdown of the parts of any judgment was conducted, it would be found that a relatively small percentage of the judgment is related to reasoning. But, in an English law report knowledge of the reasoning process of the court is said to be the most vital element of the report. In reading these judgments, much information can be gathered on the attitudes of the senior English judiciary concerning the relationship between EC law and UK law. For example, careful reading will have noted that all judges accept, without question, that, in cases of clear infringement of EC law by UK law, then UK law must be disapplied. Noting this will make the student question the interpretation of the case put forward by the essay question that they are essential about ‘disapplying English statutes’. An appreciation of the correct issue (can a court disapply as an interim measure before a rule has been held to conflict with EC law?) suggests the necessity for a vital yet subtle difference between what the essay question is suggesting and what the cluster of Factortame cases is about. The reasoning of the courts can only be obtained by reading all judgments. Go back over the information gathered in relation to the procedural history of these cases and, incorporating information in the cases, construct a diagram of the actions. (4) Final consideration of the cases by reflecting on textual notes and diagrams The three diagrams 9.7–9.9 contain the basic reasoning behind the decision for you to check your findings against. It is useful here to look at all the diagrams and tables: Table 9.2: the list of UK law and EC law; Figures 9.4 and 9.5: UK and EC legal rules of relevance; Figure 9.6: provisions of the Treaty of Rome (EC Treaty) of relevance to the Factortame cases; Figure 9.7: the issues raised by the question; Figures 9.8–9.10: the three diagrams concerning the grounds of appeal, decision and reasoning in all three courts, including indication of grounds of preliminary ruling; Figure 9.11: the diagram of the actions in the case.

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The reading shows that, at a broad level, no English judge disputes the fact that EC law obliges English courts to disapply a national law if it conflicts with EC law. Neither does the UK government dispute this. That is why it is essential that the narrower issue is picked up: that the case concerns disapplying UK legislation by an English court as an interim measure awaiting final determination of the main issue concerning EC law and its infringement. Look at the diagrammatic version of the essay question set out in Figure 9.6, below, and the way in which the limited knowledge so far obtained has been added to it. The diagrams of the cases in relation to issues, grounds and reasoning have been used to attach points to the issues raised by the question in Figure 9.6, below. What judges say constitutes powerful evidence for an argument. It can be seen that the cases can be allocated to issues and arguments formed to agree or disagree, in part or in total.

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4.3.3 Summary of the issue in the application for judicial review The applicants alleged that the British Government, by stipulating that 75% of the shareholders and directors had to be of British nationality, were unnecessarily acting out of all proportion to the problem. Furthermore, the British Government had infringed their Community obligations by passing a statute that contained provisions in direct contravention of the Treaty of Rome 1957—notably that Member States cannot discriminate against each other (see Articles 7, 52 and 221 of the Treaty of Rome). 9.4.3.4 Summary of procedural history Factortame applied to the High Court for an order that the contravening sections of the Merchant Shipping Act 1988, together with parts of the accompanying regulations passed to implement the statute, should be disapplied pending a full hearing of the matter. The High Court considered that the dispute raised a question requiring the interpretation of some of the articles in the EC Treaty and decided to operate their discretion to ask the European Court for a preliminary ruling under Article 177 to the question whether s 14 of the Merchant Shipping Act 1988 infringed Articles 7, 52 and 221 of the EEC Treaty. This case commenced in December 1988 but the court decided to seek a preliminary ruling from the European Court and this was sent on 10 March 1989. The High Court ordered the application of the statute to be suspended on the grounds: • of changes brought about by entry into the EC and the UK obligations under the Treaty of Rome; • of s2(1) and (4) of the ECA 1972; • that the applicants stood a good chance of winning the case and, if they had to await a ruling, the case could take two years. However, if they were unable to register and therefore unable to fish for two years they would be bankrupt; • that this case for judicial review was not a case in which damages was a remedy on offer. The government appealed against the High Court decision on the grounds that an English court cannot suspend an Act of the English Parliament before it has even been determined to be in conflict with European law. The Court of Appeal agreed with the government. Factortame was forced to appeal to the House of Lords who said that, as far as the law as they saw it was concerned, the High Court could not suspend a statute. However, as the final court of appeal, they were obliged to seek a preliminary ruling on the matter from the ECJ under Article 177 (now Article 234), of the Treaty of Rome 1957 concerning whether a ‘national court had to give relief pending a reference in a main action and, if it gave relief, did Community law give it the power to grant interim protection’? (See Chapter 5.) The ECJ replied in the affirmative that a national court had to give relief. Furthermore, the ECJ stated that if a national law stood in the way of interim relief,

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CONCLUSION

This text has attempted to provide a clearer view of the practicalities of reading legal texts, both primary and secondary, in order to engage in argument construction. Ways have been suggested of ‘breaking into’ texts to understand the flexibility and the inherent unreliability of language.

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the landscape that decides it all: the officials; the institutions; politics; the judiciary; the police; policy. Why one interpretation and not another? The critical thinker has to remain engaged not only in micro questions within the text, both at the superficial and the deep readings, but also engage in macro questions at the level of law, politics and culture; at the level of text as social fact, as the product of a culture; continuing the search for underlying assumptions. Much law degree study will revolve around ‘fighting’ with the language of and arguments in cases, reconciling, distinguishing and/or following them and explaining differences of interpretation where some might say there are no differences. Students learn an increasingly larger body of rules and, more and more, the overarching context of institutions and culture shrinks into the background. They are interesting from an academic perspective, but cultural legal content has no place in the everyday life of the law and its mediation of competing interests. It is in the interest of these legal institutional values that the legal ‘story’ is the one that covers all. There is a danger that the daily process of doing the law blinds the ‘doers’ who are on the street (the practitioners) to the motivational influences of some institutional creators of law. When deciding what words mean in court, judges make far reaching decisions and maintain that they do not do so on grounds of morality, religion, justice or ethics, but purely as a true interpretation of the words. They support the view that one must believe in the ultimate good of the law and the ultimate ability of the law to determine what the law means. A problem can now be seen. As pointed out above, the law is not an autonomous neutral agent, it is used by people in a political and social role. Legal texts can be analysed as social texts created by social actors. Statutes are texts communicated via words created by politicians in compromise, interpreted by judges for a range of reasons, some explicit some not. The orthodox view is that law is a neutral instrument to achieve a moral society. Law is objective, rational and logical. Can discussions about law ever be justifiably separated from discussions about power, from discussions of law maintaining society and its political ideology. Access to law making power is only available to players in the higher levels of the political machinery or professionals in the higher judiciary. Law is not logical, nor does it have to be. There is social agreement that, for a range of reasons—political, social and moral—English law should be seen to be fair, and outrage when it is thought to be not fair. Statutory rules have attempted to engage in behaviour re-direction. But to apply a rule to a problem requires the clarification of the problem and proof that the facts of the problem as presented are the facts that occurred. Rules have developed which state what must be proved by testimonial or forensic evidence and when evidence itself must be backed up. Due to the developmental strategies of the common law, its orality of proceeding, the breaking away of the courts from the royal household, the ultimate ascendancy of statutory law and the complete reorganisation of the courts of England and Wales in 1875 and 1978, we now have a system of law which is based upon the reaction to arguments presented to those officials who decide which argument is legitimate, be they negotiators in offices, tribunals and juries, magistrates and appellate courts. This system is being challenged, stretched and changed by

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APPENDIX 1—ENGLISH PRIMARY LEGAL TEXTS

(1) GEORGE MITCHELL (CHESTERHALL) LTD v FINNEY LOCK SEEDS LTD [1983] 2 ALL ER 732–44 HOUSE OF LORDS LORD DIPLOCK, LORD SCARMAN, LORD ROSKILL, LORD BRIDGE OF

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(2) HUMAN RIGHTS ACT 1998

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APPENDIX 3—THE EUROPEAN DIMENSION (2) FACTORTAME CASE STUDY MATERIALS AND EXTRACTS FROM TILLOTSON

(1) R v SECRETARY OF STATE FOR TRANSPORT EX P FACTORTAME LTD

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BIBLIOGRAPHY

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Nash, W, Rhetoric: The Wit of Persuasion, 1992, Oxford: Blackwell. Northledge, A, The Good Study Guide, 1995, Milton Keynes: OU Press. Riley, A, English for Law, 1995, Hemel Hampstead: Prentice Hall. Russell, F and Locke, C, English Law and Language, 1995, Hemel Hempstead; Phoenix ELT. Scherr, A, Client Interviewing for Lawyers: An Analaysis and Guide, 1986, London: Sweet & Maxwell. Sychin, C, Legal Method, 1999, London: Sweet & Maxwell. Tillotson, J, European Community Law: Text, Cases and Materials, 2nd edn, 1996 (4th edn, 2003), London: Cavendish Publishing. Trzeciak, J and Mackey, SE, Study Skills for Academic Writing, 1994, Hemel Hempstead: Prentice Hall. Twining, W and Miers, D, How to do Things with Rules, 1991, London: Weidenfeld & Nicolson; 4th edn, 1999, London: Butterworths. White, R and McGovern, D, Writing, 1994, Hemel Hempstead: Prentice Hall. Wigmore, JH, ‘The problem of proof’ (1913) 8 Illinois Law Review 77. Zander, M, The Law Making Process, 5th edn, 1999, London: Butterworths. Zander, M, Cases and Materials on the English Legal System, 9th edn, 2003, London: Butterworths.

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