International law moot court competitionApril 2013

Vu Thu Hang

What we will discuss today: The importance of legal analysis technique; The concept of sources of law; Basic concepts of the common law system and

the civil law system; The difference between sources of law and law; Quotation and legal basis; Legal analysis technique; How to apply law to a specific question?

1. The importance of legal analysis techniques

Importance?

- Enable to indentify and acquire the legal knowledge needed for competent representation for clients.

- Enable to address unfamiliar areas of law and to respond to changes in the laws;

Practicing is the only way to master legal analyzing techniques;

With legal analysis technique, law students/mooters/lawyers shall develop their research skills (capacities to understand the complexities of the legal system, to use to secondary sources and to be efficient, keeping in mind that sources need to be fully referenced and strategically/appropriately chosen).

2. Sources of law The concept:

The sources of law are multiple, but:For civil law system: Court judgment (Jurisprudence)

shall not be considered as such (see table p.6);For common law system: court decisions set

“precedent” and are referred to as a source of law (i.e., to be used in future cases of similar nature). Precedent can be overruled by new laws, or statutes, passed by the appropriate government .

International treaties: [to which (Vietnam) is party] are also sources of law and have precedence over domestic legislation.

Legal instruments Issuing bodiesThe Constitution,Laws (and Codes),Resolutions

National Assembly

Ordinances and resolutions Standing Committee of the National Assembly

Decrees, regulations and resolutions The Government

Decisions and directives The Prime Minister

Circulars Ministries

Decisions Ministers

Domestic sources:

– Primary vs. secondary sources of law:

Primary: in appropriate circumstances, binding or determinative of the outcome of a legal dispute. Examples: international treaties, laws, regulations, court orders, ect.

Secondary: not binding, merely viewpoints of writers or research aids. Examples: course books, publications, articles, research papers, ect.

3. Common law system vs. civil law system Common law system:

Those legal systems have adopted the historical English legal system;

Case-centered, judged centeredLaw can be developed on a case-by-case basis.

Civil law system:Those have adopted the European continental system

of law;Codified body of general principles which control the

exercise of judicial diiscretion.

– The difference between sources of law and laws:

Sources of law: the origin from which rules/laws come into existence. Examples would be precedents, customs, legislation, international treaties, etc.

Laws are defined as binding, general and abstract rules of conduct meant to enforce justice and prescribe duty or obligation. It is imposed on everybody.

4. Quotation of law/legal basis: how and why quotation of law is important to a legal writing/legal opinion?

To support an argument;To justify a reasoning;To avoid plagiarism;To make the case easier to be understood, more

transparent and more easily monitorable.→ Lawyer, judge… are not competent to create new rules!

How to quote case law, legislation, journal articles, book, internet materials… etc?

Books: Author, title of the book (publisher, edition number, year of

publication)

Case: Case name (year) volume number, report series, page or Case

name (year) Court, judgment number

Legislation: Title of the act, year, jurisdiction

Article: Author, title of the article, year, volume of journal, title of the

journal, page

Internet materials: Author, document title (date) website page

5. Legal analysis technique

The basis of legal analysis is simple but fundamental, this is to identify the issues presented through some factual events and to determine the relevant law and how it should be applied to the particular case.

From case to case, the application of a same rule may vary depending on the elements of the case, the interpretation of the rule and the legal analysis technique chosen.

Question of law and question of fact.

Question of law = issue which pertains to interpretation of the law and can only be decided by the judge. The judge, weighting the available information, will consider his or her knowledge of the law and issue a ruling on the matter.

In opposition, a question of fact concerns the factual events which occurred. A question of fact may be resolved by a judge but also by people’s assessors (similar to the jury in the Anglo-American system).

Example:

In a murder trial, the question “Did the defendant kill the deceased?” is a question of fact when the question “ Did the crime was premeditated?” is a question of law.

Methods of analysis?

Several methods of legal analysis may be used…

Rule based analysis: consists in breaking a legal rule in separate elements, and matching those elements of the rules with the facts and circumstances of the problem to be solved.

Reasoning by analogy: consists in showing direct factual similarities between the case’ facts and the law/case law. (often used)

- Textual analysis: As in the rule based reasoning a legal rule is broken in several element but the words must be strictly interpreted. The terms used are central.

- Policy based reasoning: permits to analyze which answer would be the best for the society at large. Focus on the interpretation’s consequences.

- Tradition based analysis: in the vein of common law, consists in applying the solution used for past cases.

6. How to apply law to a specific question?

Steps:

Identify the issue or legal question; Identify the rule or law which governs the previous

question of law;Decide how the law applies to the legal question;Conclusion or summary of the legal analysis.

THANK YOU

Vu Thu Hang HPLaw, Ho Chi Minh Citythuhang.vu@hplaw.com.vn