Legal methodology, Extensive interpretation, Official journal
The practical case is an exercise also called legal consultation, or legal composition. The object of the practical case is to bring the legal solution to facts given and to state the consequences. For that, we applied the mechanism of the legal syllogism.
There is no question to state a personal opinion, but only to follow the steps of a method that have to be rigorously applied. The good knowledge of the lesson and of the applicable rule is imperative. Neither problem nor exercise can be solved without knowing the formulas and rules allowing that. The approach of resolution of a practical case breaks down into several stages, and as follows:
The qualification of the facts: This consists in qualifying the exposed facts, and to bring a legal qualification to each element or person involved into the situation exposed. Qualifying consists in designating persons or things according to the general category to which they belong in comparison with the situation to be taken into account (for example: M. A.… will be described as an owner, or a motorist, a consumer…). Only relevant facts must be taken into account. Facts are relevant in comparison with the applicable rule and the point of law.
Determination of the applicable rule: After having qualified the facts, we search then the whole applicable rules.
The application of the legal provision to the particular case: Lastly, the student must state the applicable solution, the consequences of the application of the legal provision to the facts. In the event of divergences of solutions in result of the interpretation of the legal provision, the most rational, logical and reasonable solution must be privileged. All the options garnered by the legal provision must be exposed. All legal possible actions must be determined for each person implied in the facts. Specifying the competent Court of jurisdiction and the statutory limitation of the action is necessary to.
Note: A chain of syllogisms can be considered. Indeed, between the qualified fact and the final solution, it can be necessary to pass by one or more other deductions operated themselves throught syllogism.
2/ The drafting of the practical case
The legal language is not the current language, and it uses a precise and specific terminology for each element. The common character of this terminology allow to classify the elements among legal qualifications. Certain terms have, in their usual meaning, a very different signification from their legal definition. A legal term can comprise several different meanings according to the matter or the field in which it is employed.
For the composition of the practical case, the drafting should be simple, concise and presenting a rigorous reasoning.
[...] Presentation of the commentary The four elements above related, must be organised in a plan as following: I The principle applied and its environnement Context of the decision: How was the law before the decision? What is the legal field of the decision? What interests and issues are involved? The legal context in which the decision is given? The principle: In this part, enonciate, expose the legal rule used by the judge. What legal principle is applied, what rule must be retained from that decision? What this rule signifies? Nota: The of the part I is the most important part of the redaction. [...]
[...] in the other hand . After enouncing the legal issue, the plan of the commentary must be announced, in a and a II The commentary of the decision / Search and organisation of the ideas The principle ideas and comments that can be deducted from the decision are somtimes evident. That's the case when the decision enounce a double principle and where each of them is assorted of an exception. In this case the first part of the commentary would be consacrated to the first principle, and the second part to the second one. [...]
[...] The legal problematic states the factual question but only in legal terms; it is a translation, in terms of rights and legal principles, of the problem involved in the exposed facts - The solution: Application of the legal provision to the fact. Expose all the applicable solutions and all the possible options. Finish, for each possible action, with the statement of the competent jurisdiction and the applicable period of limitation. In the event of a multiplicity of the legal issues, then separate the writing in as many parts as issues to be solved. Each part can be titrated according to the treated issue. [...]
[...] The object of the practical case is to bring the legal solution to facts given and to state the consequences. For that, we applie the mechanism of the legal syllogism. There is no question to state a personal opinion, but only to follow the steps of a method that have to be rigorously applied. The good knowledge of the lesson and of the applicable rule is imperative. Neither problem nor exercise can be solved without knowing the formulas and rules allowing that The realisation of the practical case 1 Stages to be respected (the legal syllogism) The approach of resolution of a practical case breaks down into several stages, and as follows: - 1 - The qualification of the facts: This consists in qualifying the exposed facts, and to bring a legal qualification to each element or person involved into the situation exposed. [...]
[...] Introduction [Introductive sentence]. [DEfinition of the terms and notions] [Enonciation of the problematic.] [Enonciation of the plan I [Transition sentence to the [Transition sentence from the to the II [Transition sentence to the [Conclusion (eventualy)] : A conclusion can lead to an opening to another subject or another theme. A conclusion is facultative in a legal essay. The composition of an essay is often based on the confrontation of a principle to its consequences, limits or exceptions. In this way it is opportune to treat in a part I the pricniple or rule, and in a part II the limits, or the exceptions, modalities, precisions etc . [...]
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