In a prior post, I provided information about the building blocks that lead to higher quality issue framing in informal legal writing. Now it’s time to talk about the distinguishing attributes of rule statements, whether in informal legal writing like exams or formal legal writing used in practice.
There are several attributes that will distinguish “a rule” from the other sentences in a written piece of legal analysis.
- It is a declarative sentence;
- It prescribes or proscribes actors’ behavior in a given context, or defines operative language regarding context or behavior; and,
- It conforms to a conventional pattern for legal rules.
In formal legal writing, there is a fourth attribute:
- It is followed by a citation to indicate the source of authority that supports the assertion that this is “a rule” or “the rule.”
Students can turn the list above into a self-assessment checklist to help answer the question, “is this sentence conveying a rule?”
Okay, I’ll admit, this was an arbitrary choice I made in pursuit of useful scaffolding for law students. Here are the considerations I weighed before making that choice.
Could you write rule statements as an interrogative (i.e., rhetorical question)? Sure, but you’d run the risk of confusion between your issue framing material and your rule material.
Could you write rule statements as an imperative? Absolutely! What is a rule but a command in a gentler tone?
Could you write the rule as an exclamation? Yes, but that affects the tone of your writing and skews towards persuasion rather than objective analysis.
So through process of elimination, that leaves us with declarative sentences. A declarative sentence is one that makes a statement and ends with a period. Declarative sentences require a subject and a predicate. It can be drafted as a simple statement, or it can be compounded to include several discrete statements, or it can be scaled up for complexity. In short, it is the ideal sentence type to handle most of the rule statements you’d need to provide in the course of writing law school exams.
To test your understanding of declarative sentences, take the quiz embedded below. No personal information will be collected.
Prescription or Proscription of Behavior
The purpose of legal rules is to define what is lawful and unlawful behavior, and ostensibly, to balance the needs of individuals against the needs of the society they live in. Regardless of whether legal rules are legislative, administrative, or judicial in origin, rules exist to provide notice to members of a society of what behaviors– in what contexts– are required, or what behaviors– in what contexts– are prohibited. Thus, sentences that are telling people how they ought to behave or how they ought-not to behave, or sentences that are setting the boundaries of which settings different behaviors are permissible or impermissible in are “rules.”
Given the voluminous number of factual scenarios that could lead to rule violations every minute of every day, rules tend to be framed in moderately generic language so that there is some flexibility to decide whether a specific scenario should be subject to that rule.
Generic vs. Specific Language in Rules
Hopefully, your experience supports the claim that there are generic ways of describing people, places, things, or ideas, and there are specific ways of describing people, places, things, or ideas. We can look at an individual person and identify them by:
- a given name (Matt Smith)
- demographic and physical attributes (5’11.5″, British Caucasian, sandy brown hair, defined jawline, born in the 1980s)
- Presence at a specific position in space and time (played the role of the 11th Doctor, aka a Time Lord, on BBC in the 21st century CE)
- Legally relevant attributes (being of sound mind and normal intelligence)
A rule statement is thus one that provides descriptions of actors, behaviors, and contexts that can apply to more than one person. For example, “When an actor intentionally strikes another person, or a closely related object, in a harmful or offensive manner, it is a battery.”
If you as a student are writing about rules-as-applied to one very specific factual scenario, then you’re probably engaging in application and analysis rather than rule explanation. For example, “When Hermione Granger punched (struck) Draco Malfoy in the nose, after calling him a ‘foul, loathsome, evil, little cockroach’ it is battery because she intended to harm him.” Relevant movie clip available here.
Let’s stick a pin in the topic of rule application because there will be a forthcoming post about rule application, analysis, and assessment. Also, for the sake of screen-reading, I’m breaking this post into two parts. In part two we’ll work through the different conventional structures of legal rules.