A new skill? Law-text analysis

Abstract

It is our thesis that there are intellectual techniques, at present underdeveloped and neglected, for the proper handling of law texts (those which constitute law or are authoritative texts from which laws can be derived). These techniques we collectively refer to as “law-text analysis”. They grow from disciplines such as statutory interpretation and precedent, but they are more than that. Together they can be defined as the general intellectual skill of identifying the legal issues involved, formulating the relevant rules(s) and reaching the actual or arguable legal result of applying the rule(s) to the facts. These are not mere mechanical rules, but neither are they simply fictions to conceal caprice. They are an undervalued means of ensuring that decision-makers act constitutionally. These techniques are not given the emphasis they should have in legal education and there is a tendency to believe that other skills such as research can replace them. We describe some of the key components of law-text analysis and argue that it should be taught not as a separate subject, crammed into already overcrowded curricula, but as a running topic central to the intellectual discipline of law.