(If you are this far in and still hope to find something by Rudyard Kipling, I am sorry to say you are in the wrong place. If you do not know what I refer to here, I apologise on behalf of society and point you in a poetically formative direction.)
'If' is a prompt in writing. The word prompts the writer to explore implications of whatever options are being considered. Imagine an appeal, for example, where the judge is the writer. The judge must decide in favour of the appellant or respondent. Each party--usually via counsel (barristers or solicitors with higher rights)--presents arguments to support their case. For the judge to choose either, will change the law or proclaim it stays the same. The decision may send away one party devastated and the other to celebrate.
1. If's Importance
There are more subtle consequences to a judge's acting on an if-I-choose-this-way-decision, such as forcing evaluations: Parliament to consider their statutes; local councils to examine how they administrate; and websites to re-write their cookie-use-policy.1 If the law changes--whether by court decision or statutorily--it changes for everyone. All those who act according to the law pre-change must now act according to a different standard or procedure.
Sometimes the situation is the opposite: there might be a general understanding that the law is about to change by legislative enactment. If a case concerning that change is adjudicated before the reform passes through Parliament, everyone who pre-empted the generally-understood coming change will have to revert their actions.
Take the Assisted Dying for the Terminally Ill Bill [HL] 2006, for example.2 If enacted, this would have3 changed the legal stance on getting help to die. Laws are subject to a multistep procedure before they are enacted. If this Bill had made it to a late step in that procedure, certain British citizens may have taken steps to use the soon-to-be-law. This might have included alterations to wills made by those who would ask for help to die.
The pre-empted law may have encouraged an application for a bank loan--given on the promise that an inheritance would be received sooner. That bank loan might be linked to a buy-to-let mortgage on a house rented to four professional tenants, who would all be affected--made homeless--if the inheritance was not granted, because the borrower would default. The tenants might then have had to take time off work to find new homes. If two were lawyers, and the others entrepreneurs, their absence from work might have led to fines for incorrect tax returns, etc. Writing 'if', as this all shows, will lead one forever to new possibilities or consequences, which in law are called policy considerations.
You may notice all this is hypothetical, and none of it may transpire. In fact, the Assisted Dying Bill never became law. But it is worth noting that it would have had unforeseen consequences. Some of these might have been imagined had the relevant persons asked, 'If…'. It is likely the Bill did not become an Act because those persons considered 'if'. In any event, I hope the above demonstrates 'if's' value when considering legal change.
It is impossible to predict the future with much accuracy--the whole future, anyway--but by starting propositions with 'if' in legal writing, one is able demonstrably to predict possible futures, which may lend weight to your argument's persuasion.
Now I will propose some ways to make the most of 'if's' benefits.
2. Writing 'If'
- Starting with the point in the last paragraph under the previous heading, the more you consider what might happen if x or y occurs, the better your final draft will be.
- When you consider 'if'-possibilities, it is easier to imagine the consequences of a certain legal decision;
- These consequences will inform your criticisms, because with them imagined, it is more obvious why a certain law should remain the same or be changed;
- As the above shows, it is easy to get carried away with using 'if'. But this is a good thing. The more you write in your draft, the greater the selection to choose from when compiling the finished product: often the best criticisms are not the first thought of, but arrived at after delving deeper.
- Start sentences with 'If':
- If this precedent is followed, what would the law become?
- If that precedent is followed, are any other laws affected?
- If Parliament enacts this proposal, can it apply retrospectively?
- Tell the reader, 'If… then…':
- If this obiter is followed, then this will be the result.
- If that precedent is synthesised with this one, then a compromise is possible.
- If stare decisis is complied with properly, then the appellant has no hope of reform, or of winning.
- Do not be afraid to be daft when writing out your first draft; use the opportunities listed in this post to create a series of criticisms that only become obvious when you ask, 'What if…'. Just be sure you delete any silliness before you hand in your assessments.
- To reiterate the crux in the last point, use 'if' to fill up your first draft with relevant text, then delete as necessary. The result is likely to be interesting and thorough.
- Finally, you will likely find that you already write 'if' more than you realise. To recognise and actively use it though, will encourage a new productivity.
I hope this post shows 'if's' uses and benefits. The bullet points are conclusion-enough, but I leave you with the following: 'if' lets the reader know they are about to read a hypothetical, which may be complicated, which suggests it would be prudent to warn the reader, which warning is implied easily with a simple 'if'.
* A short acknowledgement: A few years ago I sat in a Criminal Law lecture given by Professor Rebecca Huxley-Binns, who explained there are a few short words that should feature in every essay. These include 'if', 'but', and 'because'. At the time, I think I did not realise this assertion's profundity. Now I do, so offer this post, and a few others I have planned, as recognition of these short words' worth.
1 Cookie-Law Guide.
2 Assisted Dying for the Terminally Ill Bill [HL] 2006. Otherwise known as the Joffe Bill.
3 Please note: The Assisted Dying for the Terminally Ill Bill never made it onto the rolls. It is not law. Also note there is another attempt to enact an aided dying law: Assisted Dying Bill [HL] 2013–14.
Created: 8 August 2013. Version 1.0.
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