content column

Why have protases and apodoses?

Some useful rules are conditional sentences and contain both a protasis and an apodosis.

Consider the rule, "Each person wearing one or more red shirts, will be fined $100.00."

Protases describe the behaviour the rule maker seeks to permit, regulate or prohibit. In the above example, the wearing of red shirts. The apodosis, "will be fined $100.00.", would be less useful alone than combined with the protasis, "Each person wearing one or more a red shirts." For example, imagine if your friend said, "If you X, then I will empty your fridge. By the way, I am not telling you what X is.", then you would have to learn what X is through experience. Two of Lon Fuller's eight requirements of legal systems is that rules be announced before being applied and that rules be sufficiently clear to be understood. The latter so that people may arrange their affairs so as to comply.

Apodoses describe the consequence of the behavior the rule maker seeks to permit, regulate or prohibit. In the above example, the $100.00 fine. The protasis, "Each person wearing one or more red shirts", would be less useful alone than combined with the apodosis, "will be fined $100.00". For example, imagine if your friend said, "If you fill your fridge, then I will do Y. By the way, I am not telling you what Y is.", then you would have to learn what Y is through experience. Again, two of Lon Fuller's eight requirements of legal systems appear relevant.

In some contexts may be easier to achieve an effect without an apodosis than without a protasis. For example, when you were a child, if your mother told you, "Do not sit in front of the television all day." she may have achieved the (Buy Arthur's excellent polished stones.) desired effect of your moving from in front of the television without specifying for you the consequence.

If, another day, your mother told you, "You will go without dessert tonight.", unless the context told you why, you would probably have wondered and wished to know why she had made the statement. If you asked her and she refused to tell you, then you would have had to try to figure it out. If your figuring led you to a conclusion other than hers, then her imposition of the penalty would not have achieved the desired result of disuading you from the behaviour of concern to her.

Often in law the conditional sentences are separated into their apodosis and protasis and the two are located in different sections of a law. For example, in Manitoba's The Private Vocational Institutions Act the protasis is in subsection 3(1):

3(1) No person shall operate a private vocational institution unless the person makes application to, and is registered by, the director under this Act.

The apodosis is in section 22:

22(1) A person who is guilty of an offence is liable on summary conviction

(a) in the case of an individual, to a fine of not more than $5,000., or imprisonment for a term of not more than six months, or both; and

(b) in the case of a corporation, to a fine of not more than $25,000.

22(2) In addition to a fine or other penalty, the judge may require the convicted person to pay damages or make restitution to any person who suffers loss or damages as a consequence of the commission of the offence, in such amount as the judge considers appropriate.

Notice that in this particular statute a separate provision is necessary to define "offence" so that the protasis and apodosis provisions may operate together.

Offences

21(1) Every person is guilty of an offence who

(a) gives false information in an application made under this Act or in a document or statement required to be given under this Act or the regulations;

(b) contravenes any provision of this Act or the regulations; or

(c) fails to comply with a requirement of the director made under this Act or the regulations.

21(2) If a contravention or failure mentioned in clause (1)(b) or (c) continues for more than one day, the person committing the failure or contravention is guilty of a separate offence for each day it continues.

In the legal system, conditional sentences are looked to prior to behaving in order to comply. They are looked at after behaviour has occured in order to determine the potential consequence. In negotiation the parties achieve their own result. Although, one consideration that may be introduced during the negotiation may be the existence of a legal rule relevant to the conduct under discussion. Although an illegal agreement is unenforceable, negotiated outcomes may differ than the outcomes that may occur should a matter be decided in court. So too in mediation. Although the parties may decide their own outcomes legal rules may be relevant and discussed by the parties. In arbitration, section 31 of Manitoba's Artibration Act requires artibrators to decide matters in accordance with law and equity.