In addition, legal reasoning at times requires that the lawyer construct a second, somewhat different, type of synthesis: the synthesis of a single rule from a number of holdings to govern a situation not within the factual predicate of any prior rule or holding. Thus, in this second type of synthesis, the result is not a framework of rules but a single rule. This rule, of course, once constructed, is integrated into the larger framework of rules.

This chapter discusses both types of synthesis. In the first section, the techniques for organizing rules into a framework are described. In the second, the ways in which a lawyer synthesizes a new rule to be placed within the framework are discussed.

As will be discussed in chapter 5, not all rules are applied the same way. Thus, in synthesizing the rules, the lawyer must make note of the source of the rule and, if the rule was derived from case law, observe whether it was a holding or dictum.

Thus, in constructing a synthesis, the lawyer similarly moves from the general to the specific, endeavoring to identify the general rules under which the more specific rules can be categorized, essentially in an outline form. These more specific rules may be thought of as “subrules” to the more general rules.

The categorization process is carried out by determining the type of relationship that each rule bears to the others. The relationship among the rules determines the placement of each rule in the synthesis or outline.

Lawyers have developed conventional ways of organizing large categories of rules. As discussed at the beginning of chapter 1, a synthesis of the entire body of law at the highest level of generality typically organizes rules as public law and private law and then as substantive law and procedural law. Within these broad categories, subject classifications are made. For example, within private substantive law, the conventional subject categories include contracts and torts, categories that are defined in chapters 7 and 8, respectively. Within each of the subject classifications, the lawyer must determine the relationship that each rule has to the others.

When the general rule is a statutory rule, the more specific rules defining its elements are likely to include both statutory and case law rules. In enacting a statute, a legislature very commonly enacts specific sections that have the sole function of defining the elements of the statutory rule. Many statutes include a section that is explicitly labeled as a “definitions” section. If the legislature fails to define an element of the statute, the courts may need to create case law rules defining the element in order to apply the statute to particular disputes. It may also happen that the legislature does enact a definition, but the definition itself may be unclear. In that situation the courts must create case law rules defining the elements of the definition. In any event, the elements of statutory rules are often defined by a mixture of statutory and case law rules.

Where the general rule is a case law rule, the lawyer usually finds that the more specific rules defining elements of the general rule are based only on case law. It is unusual to find a statute that was enacted for the purpose of defining an element of a case law rule. Statutory definitions are enacted almost exclusively for the purpose of defining the elements of statutory rules.

For example, a case may announce the rule that a physician who performs surgery on another person without consent is liable for a battery. This rule is really nothing more than a specific application of the rule just described, creating liability for the commission of a battery. The rule imposing liability on a physician is more specific than the first rule, imposing liability on any person for the commission of a battery and should be categorized as a subrule of the first.

A specific rule applying a more general rule to a particular sets of facts may technically be a holding of a case. As has been seen, holdings are very often merely particularized applications of rules. For reasons that are explained in chapter 5, the fact that a particular rule is the holding of a case, as opposed to dictum, should be noted by the attorney, but that will not affect the placement of the rule in the synthesis.

A specific rule applying a more general rule may also have the effect of illustrating the definitions of the elements. For example, the rule imposing liability on the physician for a battery in effect designates a surgical operation as an illustration of what is meant by an offensive touching.

Regardless of whether the general rule is a statutory rule or a case law rule, the more specific rule applying it is usually created by case law. Indeed, the principal function of the courts is to apply statutes and case law rules to specific situations.

It is unusual for a statutory rule to serve as the specific application of a more general statutory or case law rule. As has been explained in chapter 1, legislatures generally attempt to enact statutes that operate at a high level of generality and usually do not enact statutes that are merely more specific applications of another statute already in force.

Recalling, however, that the word statute is being used in this book in a broad sense to refer to all enacted law, the reader should note that there are instances where one enacted rule is actually the application of another enacted rule. This is perhaps most likely in situations where an administrative agency has issued regulations implementing a statute. Certain of the administrative regulations may be nothing more than statements applying the statute to specific factual situations.

For example, a case may state the rule that one who uses reasonable force against another person necessary for self-defense against imminent bodily injury is not liable to that other person for a battery. At first glance, this rule concerning self-defense seems to contradict the general rule imposing liability for a battery. And, in a sense, the rules are contradictory. But the contradiction exists only in a specified set of circumstances—those circumstances where force is necessary for self-defense. Because the self-defense rule describes the circumstances under which it prevails over the general rule, the contradiction can be resolved by treating the self-defense rule as simply a limitation on, or an exception to, the general rule.

A rule that creates an exception to, or limits the scope of, another rule is obviously more specific than the other rule. Thus, the narrower, limiting, rule should be categorized as a subrule of the more general rule.

When two rules contradict each other, the question sometimes arises as to which is the general rule and which is the exception. The general rule, of course, is simply the rule that applies to the broader set of circumstances.

Often, identifying the rule that constitutes the exception requires little more than examining the text of the rules. For example, a rule may state explicitly that it is an exception to a more general rule. Even if a rule does not state explicitly that it is an exception, its exceptionality may be implicit because the rule defines a relatively narrow set of circumstances in which it prevails over another rule, making clear that the other rule prevails in all other circumstances.

At times, the question of which is the general rule and which the exception is unclear. Moreover, the answer may change over time. Sometimes an exception is applied to an increasingly broader range of circumstances until the supposed exception becomes more broadly applicable than the general rule. Lawyers speak of this situation as one in which “the exception swallows the rule.” Eventually, the “exception” is openly acknowledged to be the new general rule.

Statutory rules, of course, are likely to state explicitly which is the general rule and which the exception. Further, because the language of statutes is fixed, statutory rules are less likely to produce the phenomenon in which an exception grows until it swallows the general rule.

When the general rule is a case law rule, most of the exceptions usually are also case law rules. Occasionally, a legislature enacts a statute intended to modify the common law in some respect, and that statute in effect may create a limitation on a case law rule.

When the general rule is a statute, the exceptions are nearly always statutory rules. The doctrine of separation of powers, described in chapter 1, precludes the courts from modifying statutes through case law.

Occasionally, however, a court may create what amounts to a case law limitation on a statute. One way to create a case law limitation on a statutory rule is to interpret the language of the statute not to apply to certain situations. In so doing, the court does not claim to override the legislature. Rather, it claims to be achieving the result that the legislature would have intended had it anticipated the particular situation before the court.

Another way to create a case law limitation on a statutory rule is to hold that the statute would be unconstitutional without the limitation. As noted in chapter 1, under the doctrine of judicial review, courts have the power to determine the constitutionality of legislation. Again, the court does not claim to override the legislature. Rather, it claims that the legislature’s enacted rule in this situation is overridden by an enacted rule of the Constitution.

In either case, the two rules are not mutually exclusive alternatives because both may apply simultaneously. Because the rights or duties are cumulative, there is no contradiction between the two rules; that is, neither rule limits the other.

For example, a case may state a rule that one who intentionally causes another the apprehension of an imminent offensive touching is liable in tort for an assault. This rule defines a liability—the liability for an assault—that is cumulative to the liability for a battery. One may commit an assault, without also committing a battery, by putting a victim in fear of bodily harm that ultimately is not inflicted. Or one may commit a battery, without also committing an assault, by offensively touching a sleeping victim. Further, one may commit both torts by causing the fear of bodily harm, accompanied by the actual infliction of the harm. These rules are cumulative in the sense that either or both may apply to the facts without affecting the applicability of the other.

Where two rules create cumulative rights or duties, they occupy parallel places in the synthesis. Neither is more general than the other. Thus, neither is categorized as a subrule of the other. Rather, they exist at the same level of generality.

Cumulative rules can be case law rules or statutory rules, or they can be a combination of the two. It is not unusual, for example, for common law rules imposing liability for certain conduct to exist side by side with statutory rules imposing liability for similar conduct. One instance of this occurs when statutory rules imposing liability for unfair and deceptive trade practices exist cumulatively with common law rules imposing liability for fraud.

This state of affairs, in theory, is not supposed to occur. The law is assumed to be an internally consistent framework of rules that can be harmonized so that the rules lead to only one result in a given situation.