Uploaded by Samantha Lii

writing on legal essay

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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.
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