The Intent of the Law
It is a truism that in formulating an argument, the first requisite is the provision of the appropriate law. Claimants and their counsels need to locate the necessary statute or precedent which will bolster their positions and enable them to win their cases. Nevertheless, despite the arduousness of research, plaintiffs and defendants must not think that the entire job of litigation consists of searching for laws and cases alone. For the truth is that this is only the beginning, the gate which when passed, opens up a broad vista of new obligations to satisfy.
The immediate task that awaits claimants and their counsels after locating the pertinent laws that they need is the interpretation of its contents. In technical language, this act of understanding or deciphering what a law means is called statutory construction. In demanding compensation for whiplash injury, for example, claimants need to see how our tort laws on that subject should be read. The well-settled guidelines regarding this type of hermeneutics are three: ordinary meaning, historical reference, and wholeness. That is to say, in order to declare with authority what a certain statute denotes, they must read the words contained therein using their plain and non-technical meaning, refer to the debates and speeches given by the law’s framers, and compare each provision with each other and read them in harmony.
Qualifications for Holdings
By now, the term ratio decidendi should be familiar to you. Plainly put, the ratio of a case is that part of it wherein the court explains its reasons regarding its decision. As a plaintiff demanding compensation for whiplash injury in a country whose jurisprudence is dominated by case law, you must know that more than merely quoting statutes, you need to cite precedents that contain a ratio that supports your contention in order to convince the courts of the justice and fitness of your accident claim. Another word for the ratio is “holding.” Thus, when anyone asks what the holding of a case is, he is in fact asking what the doctrine enunciated in that case is and when it can be applied.
Two determinations, however, must make you circumspect. For one thing, there are certain kinds of cases which have no ratio. First, cases that are not resolved because they are moot and academic obviously have no holding. Doctrines are generated only when actual controversies are resolved. Without a real conflict, the courts will not act. Second, dissenting opinions also do not count as holding. Only the opinion of the majority is binding. Another thing you must study is the fact that not all holdings remain valid until today. Doctrines are regularly though infrequently overturned in favor of new ones.
It is a truism that in formulating an argument, the first requisite is the provision of the appropriate law. Claimants and their counsels need to locate the necessary statute or precedent which will bolster their positions and enable them to win their cases. Nevertheless, despite the arduousness of research, plaintiffs and defendants must not think that the entire job of litigation consists of searching for laws and cases alone. For the truth is that this is only the beginning, the gate which when passed, opens up a broad vista of new obligations to satisfy.
The immediate task that awaits claimants and their counsels after locating the pertinent laws that they need is the interpretation of its contents. In technical language, this act of understanding or deciphering what a law means is called statutory construction. In demanding compensation for whiplash injury, for example, claimants need to see how our tort laws on that subject should be read. The well-settled guidelines regarding this type of hermeneutics are three: ordinary meaning, historical reference, and wholeness. That is to say, in order to declare with authority what a certain statute denotes, they must read the words contained therein using their plain and non-technical meaning, refer to the debates and speeches given by the law’s framers, and compare each provision with each other and read them in harmony.
Qualifications for Holdings
By now, the term ratio decidendi should be familiar to you. Plainly put, the ratio of a case is that part of it wherein the court explains its reasons regarding its decision. As a plaintiff demanding compensation for whiplash injury in a country whose jurisprudence is dominated by case law, you must know that more than merely quoting statutes, you need to cite precedents that contain a ratio that supports your contention in order to convince the courts of the justice and fitness of your accident claim. Another word for the ratio is “holding.” Thus, when anyone asks what the holding of a case is, he is in fact asking what the doctrine enunciated in that case is and when it can be applied.
Two determinations, however, must make you circumspect. For one thing, there are certain kinds of cases which have no ratio. First, cases that are not resolved because they are moot and academic obviously have no holding. Doctrines are generated only when actual controversies are resolved. Without a real conflict, the courts will not act. Second, dissenting opinions also do not count as holding. Only the opinion of the majority is binding. Another thing you must study is the fact that not all holdings remain valid until today. Doctrines are regularly though infrequently overturned in favor of new ones.
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