Deconstructing and reconstructing legal argument

Deconstructing and reconstructing legal argument

Deconstructing a legal argument is rather like completing a jigsaw puzzle. It is

necessary to group types of information together (just as before starting to put the

pieces of a jigsaw together, one might find all the straight edged pieces or pieces of

a similar colour when preparing to complete the jigsaw puzzle).

Once all the pieces are grouped together it is then possible to put them together to

create a full picture of what the judgment is about.

This means identifying the “pieces” from within the judgment itself:

 the facts,

 material that is irrelevant to the case note but might be relevant to a case

comment

Deconstructing a legal argument: organising the pieces

In order to identify the relevant elements of the judgment you might find it useful to

use the table set out below. As you read through the judgment use a highlighter to

identify the different parts of the judgment and then use the table to write the relevant

information in to the appropriate boxes.

Relevant facts (these are the events

which lead up to a claim being made).

Procedural history: this includes:

(Administrative Division) or; an

from a national court to the Court of

Justice of the European Union

(2) the history of any appeal process that

has taken place and a summary of

decisions that were made by previous

courts lower in the hierarchy. Relevant

law: (this is the law that is in dispute

(either legislation or case law) in the case.

This will be a section of an Act or an

Article in a convention). A judge in their

The issues in the case: these are the

legal issues (points of law) that the

judge has to decide.

The argument of the parties: an

explanation of the arguments presented

by either side will usually only be found

in judgments within common law

jurisdictions that use the adversarial

style of trial. The judge(s) will set out

Once a case has been deconstructed in this way it can be reconstructed to form a case

Once a case has been deconstructed it can then be reconstructed. Case notes usually

neutral citation supplied by the court services), the court in which judgment

was given in, the judge(s) who heard the case and gave judgment, the date of

judgment.

These are broken down into:

(1) three catchwords setting out the subject area into which the case

falls so that professional lawyers, academics and others can easily search on

databases. For example: “Human rights - Freedom of religion and belief –

Manifestation of - …..” This categorisation helps when writing and researching

case comments because it is possible to identify other relevant cases which

then the factual part of the catchwords will be slightly longer.

These are written in chronological order. Usually the definite article (“the”) will

be omitted. The issues in the case, that is the legal question(s) the court

considered. The issues listed must match up with the ruling given by the court.

When you write out the court’s decision it should answer the questions set out

as issues in the case. The issues are set out in the catchwords and the ruling on

the points of law (the issues) is set out in the body of the law report or case

note of the case The legislation subject to consideration and upon which the

resolution of the case depended.

This is an explanation of the new point of law in the case. It needs to

Some case notes or reports include a reference to the cases that have been

considered by the judges and indicate whether they were, for example,

followed or distinguished or overruled. This will only apply in common law

jurisdictions.

Here is an example of a report of a case (a headnote) indicating the

various sections from 2014 OJLR 3(3):

Human Rights – Freedom of Religion or Belief – Interference with - Russian law

providing that “a religious organisation” was a voluntary association of Russian

nationals and permanent residents of Russia formed for the profession and

association – European Convention on Human Rights, art 9 in conjunction with art 11

In the continued absence of European consensus on the religious nature of Scientology

teachings the court had to rely on the position of the domestic authorities on the

matter and determine the applicable Convention provisions in the light of it: see Kimlya

and Others v Russia, application nos 76836/01 and 32782/03, § 79, ECHR 2009, and

Church of Scientology Moscow v Russia, no 18147/02, § 64, 5 April 2007. The Court did

not therefore need to determine whether or not Scientology was a religion because it

could defer to the judgment of the Russian authorities on that matter. In any event

rather than the groups’ ‘non-religious’ nature, it was the applicants’ purported failure

to fulfill the requirements of the legal provision establishing a special fifteen-year

The refusal to register the applicants was an interference with their rights pursuant to

church’s existence for 15 years was based on an accessible and foreseeable

interpretation of domestic law the refusal to register the applicant group had not

position that the lengthy waiting period which a religious organisation had to endure

prior to obtaining legal personality could not be considered “necessary in a democratic

society”: see Kimlya and Religionsgemeinschaft der Zeugen Jehovas and Others. In so far

as the fifteen-year waiting period under Russian law affected only newly emerging

religious groups that did not form part of a hierarchical church structure, there was no

justification for such differential treatment. Such a provision was peculiar to Russian law

and there were no other member States of the Organization for Security and Co-

operation in Europe that required a religious organisation to prove such a lengthy

existence before registration was permitted. Such a provision was not therefore

necessary in a democratic society. The refusal to register the Church of Scientology of St