12 August 2013

What is Analysis?: an Answer, an Example, and Advice

Analysis is everywhere in university. Lecturers go on about it. Handbooks declare its need in uppercase. Guidance notes beg you not to forget it. And it often follows essay titles. Normally, this use is accompanied by the qualifier 'critically', but that is a topic for another post, while this one defines analysis, explains its importance, tries to show how analysis works with reference to case law, and shows how it might be used to improve your writing.


1. Analysis is…

You know already how to analyse. You probably do it automatically. To define analysis and actively try to do it well will improve your writing. Similar to recognising how much you ask 'if', to be aware of your analytical technique is to identify something that may be improved--but any efficiency in that regard needs you first to acknowledge the process.

As clear as they are, dictionary definitions are not practically useful. They are, however, good places to start:
  1. [To separate] (…) any material or abstract entity into (…) constituent elements (…).
  2. (…) a method [to study] (…) something['s nature] or [to determine] its essential features and their relations (…)
  3. [To present] (…) in writing, (…) the results of [(2)'s] process (…)
  4. a philosophical method [to exhibit] complex concepts or propositions as compounds or functions of more basic ones.
  5. Mathematics (…) [intentionally left out].1

In simpler words, analysis is the process of breaking down and taking apart: to understand an apple is skin, flesh, seeds, and a stalk is to understand the analytical process. Legal analysis is a little more difficult because it deals in the general and the abstract, and even when specific, the law is intangible. Legal analysis does become clear and (almost) straightforward with practice, though it is rarely easy.

When you have read enough case law, you may notice that most (if not all) of it starts with analysis. First, the judge splits the factual circumstances into a sequence and selects the relevant parts. Counsel will have offered precedents to the court, whose second step is to analyse these. The judge teases precedents apart to discover whether counsel's relied-upon statements may be reduced to chunks that are relevant in the instant case. Some other events happen--like application and debate--before a conclusion is given, which splits up in a summary the courts' own analysis.

2. Deeper Analysis is…

… essentially the same as other analysis but a step deeper into the material or case or statute or concept. If you bite the imaginary apple from earlier you may claim the flesh is sweet, juicy, and crunchy (or bitter, if you're strange and imagined a Bramley). This is deeper analysis because it separates one of the already-identified constituent parts--the apple's flesh.

The problem in law is that deeper analysis tends to get more abstract with every attempt. The more abstract an analysis, the harder it is to keep all the imagined strands in your mind. This problem is only a problem in the beginning. After enough tries, it becomes routine enough that it is fun to see just how analysed a case or principle can be. This enjoyment may occur when it starts to become obvious which analytical directions will not blossom, and which may be followed to fruition.

3. R v Hughes [2013] UKSC 56: Case Law Example

3.1 R v Hughes: Facts

These facts are devised with reference to R v Hughes in the Court of Appeal (R v MH [2011] EWCA Crim 1508) because in this instance, the facts seem more thorough earlier in the case history. This is not always so, though it is often beneficial to at least scan through a case's history--ie the case's lower court judgments from before its consideration in the highest court it is heard in.

There is a confusing element to this case. For some reason, of all the law lords available, Lord Hughes handed down the Supreme Court's decision for R v Hughes. This makes it sensible to use Lord Hughes' name as little as possible to avoid the possible confusion. Rather than simply refer to him as 'the Lord', I will just say 'the court' or the other delivering judge's name, Lord Toulson, to refer to the whole court.

The appellant drove without a full UK driving licence or any insurance. The appellant was crashed into by another vehicle whose driver died of injuries caused by the accident. The absent licence was an unimportant factor. The insurance issue and the death, however, together gave rise to a prosecution for causing death by dangerous driving.

There are several facts that influenced the court's legal application. The appellant drove safely. The other driver, who died, was a casual drug user, had heroin traces in his blood, and witnesses attested to his erratic driving before his death.

The respondent chose to prosecute for causing death by dangerous driving under the amended2 Road Traffic Act 1988 ('88 Act) s 3ZB rather than for the strict liability offence, of driving without insurance ('88 Act s 143) or a licence ('88 Act s 87). The former carries a two-year sentence, the latter two carry relatively minor punishments and no prison time. The respondent could have prosecuted for any of these. They chose to use the heaviest law.

Aside, the appellant appealed from the Court of Appeal decision, which convicted Mr Hughes according to the law confirmed in another recent case, R v Williams [2010] EWCA Crim 2552.3

Lord Toulson realised the legal question would determine whether
Mr Hughes [was] held criminally responsible for [causing] death (…) although on a common sense view [the other driver] was entirely responsible for the collision (…) (at [6]).
This part of my analysis appears to be critical. However, it is the court's criticism. All I have done is select it from the case's text. Thus the quote, though critical, is still analysis. If Williams was followed, the answer to the question would have been 'yes' because that case established the '88 Act offence does not require fault to be established; so the killed-person's behaviour was not part of the '88 Act's test.

The next subsection deals with the ratio decidendi--the court's reason for the decision--which helps understand why, notwithstanding Williams' test and lucidity, the appellant in Hughes won his appeal.

3.2 Hughes: Ratio Decidendi

Lord Toulson identifies a massive problem in the Parliamentary wording of the '88 Act's amended provisions. The offence is strict liability. The appellant's deliberate choice not to insure is irrelevant. If the Supreme Court (in effect) held the appellant guilty, they would allow the law to punish heavily those without any personal fault, for example due to an insurer's administrative error. The court, therefore, were reluctant to confirm Williams as a precedent.

That reluctance is evident in the court's rhetoric:
To say [the appellant] is responsible [for the other driver's death] because [the appellant] ought not have been on the road is to confuse criminal responsibility for the serious offence of being uninsured with criminal responsibility for the infinitely more serious offence of killing another person (at [17]).
Even with insurance the death would have happened and the appellant would not have been prosecuted for dangerous driving--which he was only accused of because his uninsured status satisfied the '88 Act's categorical definition--so being uninsured was relevant only to the fact of being uninsured (sic), and not to the other driver's death.

The law determined by the court is as follows: s 3ZB offences are not committed if the driver's only fault is driving 'unlicensed, disqualified or uninsured (…)' (at [35]).

For the '88 Act to apply, there must be some criticisable aspect of the driving involved, 'which contribute[s] in some more than minimal way to the death' (at [32]). This is qualified: if death is caused by an insured driver, their insured-status would mitigate their culpability. An uninsured driver would bring themselves under the '88 Act's remit by cumulative wrongs; for example, by driving uninsured in the rain with faulty window wipers the driver may be subject to the two-year imprisonment sentence whereas an insured driver in the same vehicle would not.

That is not to encourage uninsured driving, but it is to suggest one will not be convicted for causing a death by virtue of not being insured; insurance does not immunise one from accidents.

3.3 Hughes: Obiter Dicta

The obiter statements in Hughes relate, for example, to Parliament's intentions. In future non-road-traffic-cases, counsel may rely on the dicta in Hughes to reassert the principle that if Parliament wants to do something specific, they must do it specifically.

Although this post is about analysis, to make the previous paragraph critical, one might add, 'It is poor legislative practice for Parliament to rely on the CPS to expand a limited statute's application--as was attempted in the instant case by prosecuting on the assumption that some guilt (driving with no insurance) implies all guilt (causing death because one is uninsured). This is because … [and here, one might explore why this would be poor practice].'

There is another obiter remark: to consider civil methods--such as voluntary actions breaking causation chains, or the tortious 'but for' test--is useful when one determines culpability, but '[in]appropriate to a criminal trial' (at [36]).

3.4 Hughes: Distinguishing

There appears to be no distinguishing per se in Hughes because the only truly relevant case is Williams, and the court simply overrules that decision. However, the Supreme Court do analyse some tortious liability principles, and deny their applicability. While this seems like distinguishing--the practice of finding a related precedent and explaining why it does not apply--the court deviates slightly from distinguishing's supposed norm in the instant case. They declare the principles from tort cases do not apply because they are civil cases rather than because the tort cases are factually dissimilar enough to distinguish. (The distinction here, if I am right and it actually exists, is a fine one that requires more thought and a separate essay.)

3.5 To Sum Up…

It is hoped this case analysis demonstrates what an analytical enquiry is expected to discover in the literature. There are other ways to analyse, for example under headings that group concepts according to different criteria. The above grouping is according to 'facts', 'ratio', 'obiter', and 'distinguishing', but there could have been other headings, such as 'statutes', 'case law', and 'rhetoric'.

4. The Importance of Analysis

The points made in this section inform the advice given in the next.

Analysis shows off a certain competence. There is an almost-standard measure in education called Bloom's Taxonomy.4 What it measures is often subjective and can cause alienation in those who a) do not realise it is against this that they are marked, or b) those who know the Taxonomy's classes and are marked low but consider themselves at its peak.

Analysis is about half-way up the measure. In further education, high marks are awarded for reaching this level. In higher education, this middle mark is only an expected starting point. To reach Bloom's Taxonomy's peak the student must transcend the analysis level; but each criteria/level is only reachable if the one below it is satisfied. That is, to analyse requires description and understanding; and to criticise (to inform an evaluation) requires analysis.

Besides (but still concerning) Bloom's Taxonomy, analysis precedes several processes in legal writing and research:
  • Good structure;
  • Critical analysis;
  • Synthesis;
  • Evaluation;
  • Distinguishing;
  • Fact finding;
  • Ratio decidendi identification;
  • Determining obiter dicta;
  • Writing introductions; and
  • Concluding essays.

5. How to Use the Analysed Material

The above lists what analysis is necessary for. Why this necessity exists is explored next. This section is not about how to analyse (it is hoped the case law example demonstrated that process). Rather, it is to show how to use an analytical approach to ensure the above list is satisfied in your own legal writing.
  1. In essays,
    1. Analyse the question;
    2. Analyse the literature (case law, statutes, treaties, articles, journalism, books, etc)
    3. See what of (i) and (ii) fits together, and use this consilience to form your structure:
      • Write about each part of the question in order; and
      • Start each of these divisions with its conformity with the literature before you examine its divergence from the literature.
  2. To be more critical, explore the weakest analysed parts, and promote the strongest.
  3. Synthesise the analysed parts in one idea or case with similar parts in another.
    1. Your structure should be influenced by analysis because the process illuminates the weighty or important parts:
      • use these for headings etc.
    2. Analysis also shows which parts are lighter or inconsequential:
      • use these for subheadings or topic sentences to introduce paragraphs.
  4. Distinguish more persuasively by finding a depth of analysis that highlights the most differences between the case(s) you want to distinguish from.
  5. To identify facts easier and more accurately, analyse the situation for all its facts, and then list them hierarchically to determine which are most relevant.
  6. Find where the judge begins to justify some point or other, and analyse the words that follow to find a specific ratio decidendi.
  7. Divide the judges' discussion to separate obiter from all the irrelevancies.
  8. Criticise your analysis to inform an evaluation, to show why a law should be reformed, for example.
  9. It is easier to produce a clear introduction if you analyse your own essay for its key parts; simply list these in chronological order and tell the reader you will visit each part in turn.
  10. To end with a memorable conclusion, do the same as you did for the introduction but write a short evaluation next to each part.

6. Further Reading

Recently, a critical analysis of R v Hughes from a Canadian perspective became available online: Peter S Spiro, 'Looking Abroad: The UK’s New Supreme Court Flexes its Muscles on Fundamental Justice' Osgoode Hall Law School, The Court 29 August 2013 (accessed 2 September 2013).


Endnotes
1 Dictionary.com, 'Analysis' (accessed 8 August 2013).
2 Amended by the Road Safety Act 2006 s 21(1).
3 See [2011] 1 WLR 588 if you have access to more authoritative law reports.
4 eg Melissa A Nelson, Using Bloom's Taxonomy for Reading Comprehension 14 June 2011 (accessed 8 August 2013).


Created: 8 August 2013. Version 1.2: 3 September 2013.





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