Legal writing--which in many ways is technical--is difficult. This is true for reading and writing about law. Reading law only gets easier with practice, and maybe with good instruction. Writing about law, though, may be instantly improved with generous prompts. 'Because' is such a prompt. The reader knows to expect a reason or some reasoning after a 'because'.
One of the first things taught on a legal education is case analysis.
- 'Determine the relevant facts', instructs the lecturer, 'then find the ratio decidendi--the decision's reasons.'
The dictionary is quite clear about what 'because' is for.
1.1 Dictionary Definition
 for the reason that; due to the fact that (…)
 (…) B[ecause] introduces a direct reason.1
In an earlier post I wrote about analysis. In a future post I will write about criticism. Before then, I have a few words on the latter. Both words will be familiar to law students. Usually they are paired: 'critically analyse'; or 'analyse critically'. Regardless, 'because' may improve the delivered criticism's quality.
2. Introduce with Prompts
If one reads 'because' after reading an evaluation, one expects to be persuaded that the evaluation is valid. 'Law X is good because…' may be followed with many creative reasons:
- Law X will produce a strong economy. (This could be followed by an example of what would change under Law X that would strengthen the economy.)
- Law X is well reasoned: none of its premises internally conflict; all of its premises have solid external foundations. (This could be followed by examples of laws on which Law X is founded.)
- Law X is intended to resolve a recurring problem. (This could be followed with an explanation about how legislative intent is important for voters.)
- 'Good' implies efficient consequences;
- 'Good' means legally sound and coherent;
- 'Good' implies a worthy purpose.
If full sentences precede and follow 'because', you can replace it with a colon or semi-colon. This is handy if your writing contains too many long sentences or you need to simplify your prose. For example:
3. How to Remove an Extra 'Because' or Two.
- 'Law Y is rubbish because it will result in vexatious litigation' could be replaced with 'Law Y is rubbish: it will result in vexatious litigation'; and
- 'Law Z empowers because it ensures a minimum living standard' could be replaced with 'Law Z empowers; minimum living standards, secured by Law Z, politically motivate citizens'.
Jersild demonstrates some of this. The applicant, a journalist, was convicted and the conviction interfered with ECHR Art 10, the right to free expression. The interference was for a legitimate aim--to protect other individuals from racism. Danish law prohibited 'threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin or belief (…)' (para 19, referring to a repealed Danish provision). Most of Art 10's derogation-qualifications were therefore satisfied.
4. A Quick Legal Example: Jersild v Denmark2
This domestic law complied with the ratified International Convention on the Elimination of All Forms of Racial Discrimination 1965. Other procedural requirements were satisfied: the applicant's conviction would stand unless ECHR Art 10 was breached.
The only question for Strasbourg to answer--the only question which answered could save the applicant from a conviction--was whether the domestic law (and subsequent conviction) were 'necessary in a democratic society' (ECHR Art 10.2) because every other formality was already demonstrated as complied with.
The Strasbourg court found ECHR Art 10 was violated. The court is not so obvious as to declare 'Art 10 is violated because…', and then list its reasons. Instead, the court finishes with:
4.1 Jersild's Reasoning
'Having regard to the foregoing, the reasons (…). Accordingly the measures gave rise to a breach of Article 10 (…)'.This is a usual format for ECHR jurisprudence; this format should indicate to readers (students) that any reasons are to be found in the court's discussion. This should not be a surprise.
When writing out the court's reasons for an assessment, one may write them as follows:
- The conviction breached Art 10 because the applicant was part of the media and 'safeguards [for] (…) the press are of particular importance' so must be protected by holding Art 10 breached (para 31);
- Although the journalist selectively used others' racism for shocking effect, the racism cannot be attributed to the applicant because the audience was well-informed and would know the views were not the applicant's, so it is unnecessary to convict (paras 33–34);
- Media employees should not be penalised for others' comments in interviews because interviews 'constitute [an] (…) important means [through which] the press is able to play its vital role of "public watchdog"' (para 35 citing Observer and Guardian v UK 26 November 1991 Series A no 216 para 59). So to penalise would restrict that process, which is good for society as a whole.
In the judgment, under the heading 'As to the Law', the court only writes 'because' once. At this instance, the word is used to introduce the explanation for why a clause in a treaty existed (para 28). This shows a general observation about the court in Jersild, that 'because' is used sparsely.
4.2 Strasbourg's Lonely 'Because'
This may be the court's attempt to distance itself from the racist justifications (quoted in the judgment), which rely heavily on the word, 'because'. It makes sense, when rejecting an entire world-perspective (here, the racist perspective), to reject it in a style that is alien to that perspective's style.
This is not to suggest 'because' is a racist word. Rather, it is to suggest that if an opponents argument takes a particular format, it is sensible to construct one's own argument by a different format to ensure the argument's form does not undermine its substance.
The above analysis indicates that one should introduce another's reasons with 'because', to distill the important parts. On the other hand, to introduce one's own reasons, a well-structured argument may be better.
4.3 Conclusions after Jersild
This seems to be because others' reasons are used to support one's own argument; so it is enough to use their conclusions, which a 'because' introduces well. One's own argument, however, should be persuasive and adequately structured to encourage its persuasiveness; this may require a deeper discussion than is prompted by a simple 'because'; so by the time that discussion is finished, a 'because' may be superfluous.
Readers expect certain things to be written after they read 'because':
5. Overall Conclusions
- The reasons for whatever precedes the 'because';
- Judicial reasons for a particular decision;
- Justifications for an argument.
The writer cannot be blamed for the reader's narrow reading. But it is the writer's job to conform with the same conventions readers keep in mind while reading. Writers can easily conform and easily include several prompts to help readers digest and understand the (technical) work. It is the writer's fault if the argument loses the reader. Do not be culpable: use 'because' and follow it with reasons.
* 'Because' was highlighted as useful for legal writing by Professor Rebecca Huxley-Binns in second year during my LLB. I wrote an essay about another one, 'if', in another post.
1 Dictionary.com 'Because' (accessed 26 September 2013).
2 Jersild v Denmark 23 September 1994 Series A no 298.
Created: 26 September 2013. Version 1.0.
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