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Using stasis theory to understand the issues in your case

Stasis theory is the process of initially discovering the main issues in an argument, and secondly, identifying the arguments that you can raise to counter those issues.

Stasis is the foundation of invention – of identifying the arguments that may be made in a case. Hermagoras of Temnos, the Greek rhetorician, discovered and classified four key divisions of stasis, and believed that all legal arguments will tend to fall into one of the following four categories of issues.

  1. Issues of conjecture-Did the person do the act complained of? ie “did X actually kill Y?” According to the ancient rhetoricians, as part of the process of identifying the issues, you should ask yourself questions relating to the specific fact or issue at hand (past, present, future). Always question cause or effect. Did it actually happen? When did it happen? Where did it happen? Why? How? How solid is the evidence in support? Is there doubt?

  2. Issues of definition – These issues focus on whether or not an action that was admitted falls under the legal umbrella of an actual crime, or constitutes an actual breach of civil law, for example “Does what has occurred meet the legal definition of murder or manslaughter?” In such cases, the advice of the ancient rhetoricians was to:

    (I) Identify what type of issue or offence your case is concerned with. What is it? What is it called? What category is it in?

    (ii) ask questions about the legal definitions that may apply to the facts.

    (iii) Question similarity and differences between different potentially applicable definitions.

  3. Issues of justification-In these cases, the act is admitted but the person concerned or their advocate believes it can be justified in some way, and there is a defence that can be raised. In these cases, the issue concerns the quality of the action, along with the motivation and justification, if one exists. Ie “is there an arguable defence that can potentially justify what has taken place?”

  4. Issues of forum or jurisdiction. In these cases the key issue is one of where the case should be heard “Should this case be heard in this court or a different court or tribunal?” For example, in the James Bulger murder trial, a key initial issue was whether the defendants should be tried in a youth court or an adult court.

Almost all cases can be categorised as either issues of conjecture, issues of definition, issues of justification and issues of forum or jurisdiction, and thinking about which definition applies to a specific case should help advocates identify further legal arguments that may be made. Stasis theory was developed by the Ancient Greeks, like Aristotle, to help advocates develop tools of reasoning that they could use when representing defendants in criminal cases in particular. However, it also provides a useful framework for thinking about cases generally, and also provides a clear structure for writing out legal arguments. Stasis theory is known as a topic of invention; this doesn’t mean you make up your legal arguments but instead refers you to the process of identifying what legal arguments and counter-arguments you can usefully identify and make. It is also a process that you can use to really get a handle on what the case is about.

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