READING A LEGAL RULE

Alice in Wonderland Case:

At this moment the King, who had for some time been busily writing in his

notebook, called out ‘‘Silence!’’ and read from his book, ‘‘Rule Forty-two.

All persons more than a mile high to leave the court.’’

Everyone looked at Alice.

‘‘I’m not a mile high,’’ said Alice.

‘‘You are,’’ said the King.

‘‘Nearly two miles high,’’ added the Queen.

As Richard K. Neumann, Jr. explained in his book, Legal Reasoning and Legal Writing, Alice was
confronted with a test of two elements. The first was the status of being a person, which mattered
because at that moment she was in the company of a lot of animals — all of whom seem to have been
exempt from any requirement to leave. The second element went to height — specifically a height of more
than a mile. The result would have been a duty to leave the court, because the causal term was
mandatory (‘‘All persons . . . to leave . . .’’). No exceptions were provided for. 

Alice has denied the second element (her height), impliedly conceding the first (her personhood). The
Queen has offered to prove a height of two miles.

What would happen if the Queen were not able to make good on her promise and instead produced
evidence showing only a height of 1.241 miles?

What if the Queen were to produce no evidence and if Alice were to prove that her height was only 0.984
miles?

What do you think is the most important step that you should undertake to answer these problems?
 THE PARTS OF A RULE

1. A set of elements (a test) - A legal researcher should understand how the conjunctive test and the
disjunctive test are applied to determine whether the presence of all the listed elements are necessary or
the presence of only one of them suffices to call for the operation of the rule.

The Conjunctive Test

When a rule meets the conjunctive test, it means that each and every one of the elements listed in the set
must be present so that the indicated consequence of the rule could be applied. The easiest way to
identify a conjunctive test is to look for the word “and.”

Example:

Article 1318 of the Civil Code

“Article 1318. There is no contract unless the following requisites concur:

(1) Consent of the contracting parties;

(2) Object certain which is the subject matter of the contract;

(3) Cause of the obligation which is established.”

               Here, as can be gleaned from the use of the word “concur,” it is clear that the elements of this
rule, to wit: (1) consent; (2) object; and (3) cause, must all be present to support a legal conclusion that
there is a valid contract.

The Disjunctive Test

       When a rule meets a disjunctive test or an “either/or” test, it means that only one among the listed
elements must be satisfied to invoke the rule’s consequences.

Example:

Section 3(a) of RA 3019, also known as the Anti-Graft and Corrupt Practices Act:

(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of
rules and regulations duly promulgated by competent authority or an offense in connection with the official
duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or
offense (Emphasis supplied).

       Here, the word “or” shows that the commission of any of the acts mentioned in the subject rule
constitutes violation of Section 3(a) of RA 3019. The first group of offenses mentioned in the rule is the act
of persuading, inducing or influencing  another public officer to perform an act constituting a violation of
rules and regulations duly promulgated by competent authority or an offense in connection with the official
duties of the latter. The second group of offenses is allowing himself to be persuaded, induced or
influenced to commit such violation or offense.

        Note that in both groups, the word “or” indicated alternative ways of committing the offense. (Note too
that in both groups there are elements that should concur to commit violation of Section 3(a) of RA 3019).
2. Result - When all the elements are present, the test is satisfied.

 Under Article 1318 of the Civil Code, if all the enumerated elements are present, then there is a valid
contract. The consequence therefore of meeting all the enumerated elements is the valid contract.

  Under Section 3(e) of RA 3019, if the required elements, namely (1) that the accused is a public officer
discharging public functions; (2) that he must have acted with manifest partiality, evident bad faith, or
gross inexcusable negligence;  and (3) that the action has caused undue injury to any party, including the
government, are all present, then the result or consequence is that Section 3(e) is violated and the
accused should be convicted and suffer the penalty provided by law. 

3. Causal Term - determines whether the result is mandatory, prohibitory, discretionary or declaratory.

MANDATORY - when they require an action. Signal words include “shall” and “must”

               Example: Article 20 of the Civil Code that reads:

Article 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same (Emphasis supplied).

PROHIBITORY - when they forbid an action. These rules are usually expressed by words “shall not,”
“must not,” “may not.”

Example: Section 7(a) of RA 6713 that reads:

(a) Financial and material interest. - Public officials and employees shall not, directly or indirectly, have
any financial or material interest in any transaction requiring the approval of their office (Emphasis
supplied)

DISCRETIONARY - when they empower a government official to exercise their judgment on whether or
not to take a particular action. Signal words include “may” and “has the authority to.”

   Example: Section 4, Rule 112 of the Revised Rules of Criminal Procedure that empowers a prosecutor
to exercise judgment on whether or not to file a case against the respondent before the criminal court.

“Sec. 4. Resolution of investigating prosecutor and its review. – If the investigating prosecutor finds cause
to hold the respondent for trial, he shall prepare the resolution and information. He shall …xxx

xxx                                        xxx                                       xxx

   Where the investigating prosecutor recommends the dismissal of the complaint…xxx

xxx          xxx         xxx.”

        Note that in the above example, once the prosecutor has determined the existence of probable
cause to hold the respondent for trial, the subsequent steps to be taken are already mandatory, as the
rule expressly made them so with the use of the word “shall.” Thus, the above rule contains a component
that is discretionary and a component that is mandatory.

DECLARATORY - when they simply state that something is true. If it does more than that, then it is
something else. They are often expressed by the word “is” but then note that this word is also used in
other types of rules.
Article 52. Marriage is not a mere contract but an inviolable social institution. Its nature …xxx (Emphasis
supplied).

4. Exceptions -  if present would defeat the result, even if all the elements are present. The elements of
rules might also include exceptions, or factual circumstances specifically removed from the consequences
of the law.

Example: Article 280 of the Revised Penal Code

Article 280. Qualified trespass to dwelling. - Any private person who shall enter the dwelling of another
against the latter's will shall be punished by arresto mayor and a fine not exceeding 1,000 pesos.

If the offense be committed by means of violence or intimidation, the penalty shall be prision
correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos.

The provisions of this article shall not be applicable to any person who shall enter another's dwelling for
the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person,
nor shall it be applicable to any person who shall enter a dwelling for the purpose of rendering some
service to humanity or justice, nor to anyone who shall enter cafes, taverns, inn and other public houses,
while the same are open.

               In the above example, even if all the elements are present, the actor will not suffer the
consequences of the rule if any of the following exceptions are present, to wit:

1.      The person entered another's dwelling for the purpose of preventing some serious harm to himself,
the occupants of the dwelling or a third person.

2.      The person entered a dwelling for the purpose of rendering some service to humanity or justice.

3.      The person entered cafes, taverns, inn and other public houses, while the same are open.

NOTE: The key skill is to learn how to break a legal rule into smaller pieces, to understand its logical
structure, and to determine if and how it applies to the facts of a particular case. Once lawyers have
identified the structure of a legal rule, they can then deploy the forms of legal reasoning to interpret its
meaning.