|legal reasoning: characterization|
Analysis of the discussion: modes of characterization (concluded)
This leaves Chris's analysis, which suggests yet a fourth way in which elementary facts can be characterized vis-a-vis a governing rule:
[CHRIS: But, I think that the pile of clam shells would be the toughest. It is a natural object, it is something that you'd find on the beach. I think it is really a very short step from someone just building a sand castle. I don’t think that we’re . . . we would try to fine somebody who took some sand and piled it into a sand castle. The clam shells are on the beach just as naturally as the sand, so I think that is a short step. And I think it would be a lot of trouble trying to convict somebody for that one.]
What is the purpose of introducing into the discussion "someone just building a sand castle"? Chris wants us to see, with our mind's eye, that story happening on the beach, and wants us to say to ourselves: we know building a sand castle is a case not covered by the statute. Then he wants us to draw an analogy from that case, which we know the answer to, to the case of "leaving a pile of clam shells." (One of the basic functions of analogical reasoning, as we will learn in the next lecture, is to let us move from cases we can solve to cases we want to solve. Perhaps if he had had time, he would have gone further, and asked us to imagine a case we would consider clearly prohibited by the statute: perhaps a case of picnickers finishing their lunch and nonchalantly leaving a pile of dirty papers and garbage as they walked off the beach. Here, he would say, is a case we know is within the statute: look how different it is from just bringing natural shells onto a beach!
Clearly Chris's method does not turn on the construction of a single word; it tries to interpret the rule as a whole, viewing trash in the context of something being left on a beach. However, unlike in our second method (which also undertook interpretation of the rule as a whole rather than of specific terms), Chris does not view the rule as adopting a policy or purpose. Rather, the rule is to be understood as stipulating the outcomes for one or more paradigm cases. Some hypothetical perpetrators are clearly meant to be penalized, while others are clearly meant to be exonerated. As to those in-between, the task is not to try to distill a specific purpose, but rather to compare the overall significance of the unknown case with the stipulated result of the paradigms. The analogical method thus fills out the argument; but this analogy, unlike some others, is not drawn between specific items, but rather between story-lines or cases as a whole.
We have, then, four methods by which facts can be characterized in relation to a governing rule; by reference to:
|Methods||Relatively abstract meaning||Relatively embedded meaning|
|Emphasis on individual term||
|Emphasis on whole rule||
Later on, we will look at some of the arguments that have been made for and against each method. For the moment, the more important point is this: in the course of ordinary legal analysis, all four methods are commonly used. For someone to become adept at legal argumentation, all four must be learned.