5. The Challenge

AuthorDavid M. Paciocco - Lee Stuesser
ProfessionJustice of the Ontario Court of Justice - Professor of Law, Bond University
Pages554-555

Page 554

Superficially, the movement away from technicality suggests that the law is now easier to apply. The reality is that it is far more difficult to use flexible rules in an intelligent and principled way than it is to apply a technical rule without regard to its consequences. The loss of technicality brings with it the need for greater skill. This is because fixed rules permit lawyers to compel judges to reach particular outcomes; if the elements of a fixed rule are met, the judge will err if the rule is

Page 555

not applied. By contrast, principled rules give controlled latitude. Litigants win only when they persuade the judge. Fixed technical rules can also be more easily learned. All that is needed to apply them is to know their meaning and to recognize whether the facts fit. Things are not so easy with principled, purposive rules. The lawyer or judge must understand the underlying theory of the rules - their purposes and foundational principles. Close regard must be paid to the competing interests at stake, for those interests will form the basis for reasoned argumentation. A...

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