Boundaries of legal problem: The Act and regulations followed by the court Academic materials/textbooks used at law school Legal publications Law reports Also extended to: ADR, Common Law, Customary Law (soft law) moral regulations in human society. Perspectives of a legal essay: Judge at the courta. solving problem in the position of a judge, assessing debates and arguments on both sides. 1. Legislatora. statute interpretation, the role of judge is to explain and interpret the law, instead of criticising the law. There is a long-term problem on establishing, modifying and abolishing/repeal statutes. 2. Decision makera. make right and just decision, not only applying the law, but to make the best decision. Especially in administration law. 3. Observera. social relationship involved in a case, such as underlying situations of a murder offence. Elements make the murder a murder. Life experiences he has been underthought. b. Cases not in front of the court c. Consider social background and historical background to reveal the order of different circumstances. Methods of legal analysis: Citing and interpreting legislations Cases must be followed Examples and legal theory Also extended to political philosophy, sociology, economics, politics even literature. 1. Sociology of law- viewing law as a social fact not just regulations. Focus on observe and describe the process of operation of law. Reveal the reason, function and the logic behind the development of a certain legal phenomenon. a. Focus on the difference between actually applying the law in society and the law on paper. b. In the perspective of social reality 2. Law and economics- economic analysis of legal problem a. E.g. Cost of information affects the efficiency of the legal system, the system should change according to the cost. 3. Political philosophy and political science a. Relationship between Constitutional law and Chinese republic 4. Literature: 窦娥冤、威尼斯商人 Types of legal essay: 1. Normative or empirical study: Essay of Normative study- ‘the problem should be solved as…’ interpretation o It aims to answer how a particular case should be solved applying the proper law o How to interpret a particular act or a notion o How to apply a particular law or notion Legislation o How to make the law in relation to a particular problem o Should the law be changed or modified? o How to solve difficult issues Scientific principle of law o How to set out a legal theory Essay of Empirical study- ‘the problem in fact is…’ o Describing the fact o Finding the reason behind the fact o Aim to reveal a phenomenon and the underlying rules behind that phenomenon Essay Including both normative study and empirical study (rarely used today) 1. reveal a phenomenon 2. summarize the concept 3. discuss the proper fit of the law 4. raise the issue 5. try to solve the issue 2. Theoretical or Application study: Essay of Theoretical study- ‘discuss the underlying rules…’ e.g. re-discuss the elements of murder Essay of application study- ‘solve the issues faced in practice’ e.g. decision of a particular case, statute interpretation, lawfulness of a particular act. 3. Legal report, essay, publications Essential requirements of selecting a topic: 1. Finding of a question from a problem/issue raised in practice, then give your own thesis and arguments accordingly. a. problems: e.g. operational problem in practice, theoretical problems from legal recognition b. refine big problem to small problem: i. one essay only talks about one essential question ii. have the general objective in view but set one's hand to a small and specific problem to open the discussion iii. set a proper and clear boundary of the question Function Analysis What are the functions of a subject/method? How effective does an expected function works? Function Analysis: what really affects the issue? does a suggested/ existing system really works? (controlling/raising the price of electricity do not change the usage at all) Explanation and interpretation of law Arguments must be based on the Source of law: Written law and unwritten law Written law: legislation, case law state/territory legislation, regulation (maybe international law), legal interpretation, other regulatory documents made by states Unwritten law (not binding): academic theory: text book, journal articles, dictionary precedence: customary law Compare legislations and law in different countries Proper interpretation of law/arguments made for the issue: 1. Argue from sociology aspect a. Legislation: “Brandeis Brief” (e.g. long hour working would affect women’s health, safety and moral standard amoung the society) 2. Economic arguments a. in torts: “hand formula” three factors: probability, loss, burden (burden need to be less then PxL) b. superannuation for disable: the cost of government, actual benefit of individual disadvantage: 1. hard to calculate exact cost and probability of cost 2. may ignored liberty, dignity and privacy 3. Balance of interests a. Balancing the conflicting interests/value of law. Policy consideration: A good policy needs to be necessary, applicable, and optimal.