pemerton said:
The spectrum I work on is Australia > the UK and NZ > Canada > the US. (Where ">" means "is more formalistic than".)
When you write ">" do you mean that the formalism is
strictly greater or
greater than or equal? Also, is the set of all possible legal system a f
ully ordered or just
partially ordered set?
If it's OK, I'll actually use this example to illustrate some interpretive reasoning.
One of the terms between the ">" operators is
the UK and NZ. The UK and NZ are distinct jurisdictions. Thus, one of the places in the spectrum as I've presented it has two jurisdictions in it. Which must mean that they occupy the same place in the spectrum. Which in turn implies that ">" means "strictly greater than" rather than "greater than or equal to".
And see how that reasoning does not require taking evidence from me about my authorial intention. It can be done purely on the basis of the text.
At least for this rather formalistic Australian, that's an example of how the interpretation of legal texts proceeds. (Except of course in non-toy examples, the considerations that generate the implications are often more complicated.)
Here's an example with more complexity - I thought of it yesterday and have been waiting for a context in which it's remotely apposite to post:
Imagine a legal provision that Anyone operating a motorised conveyance must be licensed to do so.
It's hard to see how a car driver is not caught by that provision.
It's hard to see how a push bike rider would be caught by that provision.
But what about a person riding an e-bicycle, with the electric motor turned off?
Or (more fanciful) what about a person on a scooter, whose feet are in straps on the scooter a bit like a sailboard, who is wearing a jetpack that propels them along at quite a speed?
Hopefully you can see that the first puzzle case puts pressure on
operates - the conveyance is a motorised one in the abstract, but the motor is off, so is the rider
operating a motorised conveyance?
While the second case puts pressure on
motorised - the scooter does not itself have a motor (that's strapped to the rider), so is the rider who is being propelled by a motor
operating a motorised conveyance?
The puzzles cannot be answered in the abstract (which doesn't stop plenty of students under examination trying to do so!). You would need more context - What else does the framework of rules say to help establish and confine the meanings of these words in this instrument? What purpose is the provision supposed to serve, within the overall regulatory logic of the instrument? etc.
When I talk about the importance of context to legal outcomes, this is the sort of thing I'm talking about. Speculating about how another important sort of context - ie how a litigation strategy might be developed to generate concessions from opponents and sympathy from a court - I leave to others who understand those things!
