words, words, words* - australasian legal · pdf file6 morgan v. lones (1773) lofft 160 at...

WORDS, WORDS, WORDS* By FRANKMAHER**

[The author considers the use of words and the problems associated with it in the new linguistic and logical reasoning. He looks particularly at the different theories of linguistic usage and goes on to make some suggestions of the \l'Uys in which the members of the legal profession can assess words more systematically. He starts by outlining the general problems between Formalists and non-Formalists. Ajier considering the relevance of the judge's discretion in this area, he concludes that 'we cannot decline to talk about law merely because terms are loose' ,I

INTRODUCTION - WORDS AS RELATIONS

Sir Robert Megarry, in one of his amusing books, cites an episode in a discussion in court between a judge and counsel:

Judge: Counsel: Judge: Counsel:

'I suppose the word 'horse' in the rule does not include an aeroplane,' 'No - I think not. ' 'It ought to, it is much the same thing.' 'I think that it was put in for the relief of archdeacons.' I

The client must have wondered if he was listening to a foreign tongue like Swahili or Urdu. The discussion seems to bear no resemblance to the matter on which he took action, and is irrelevant to his grievance. Yet counsel and the judge appear to understand one another; ultimately the judge delivers his decision in words which make apparent sense to lawyers, To the lawyers, horses and aeroplanes could here have constituted a 'class' of 'transport' or of 'personal property' - similar in some respect. Yet it took time and effort to get agreement.

When I read this exchange recently, I recalled T. S, Eliot's lament: 'Words strain Crack and sometimes break under the burden, Under the tension, slip, slide, perish, Decay with imprecision, will not stay in place, Will not stay still. '2

What then can we do with words in law to stop them from breaking under the strain?

, From Troilus and Cressida Act V Scene 3. Troilus is saying that one cannot trust Cressida's words, it is her actions that count. Readers will also remember Hamlet's sarcastic retort to Polonius who asks him what he is reading - 'words, words, words' (Act II Scene 2).

*, Former Reader in Law, University of Melbourne. I In an English case about deduction of travel expenses (Mac/ean (Inspector ofT(Ltes) v. Trembath

[19561 I W .L.R. 437) cited by Megarry R.E., A Sel'Ond Miscellany at Law (1973) 257 (hereafter called Megarry Second).

2 Cited by Johnson P., Enemies of Society (1977) 110.

468

VVords, VVords, VVords 469

ONE

Law is not a scientific, formal process

Those of us who learned their law a very long time ago were told that law was a 'science'. Our teachers stated it had a precise answer to nearly all disputes. It had all the marks of a 'formal' discipline with principles, rules, definitions, and syllogisms. Using these we could nearly always arrive at an agreed consensus. We 'matched the words of the rule to the proved facts', partly by logic, analogy or intuition, partly by speaking of 'essences'. There were cases where judges disagreed; occasionally an old rule was 'upset'; but these were relatively rare. ludith Shklar describes this 'legalism' explicitly in her celebrated criticism:

The naive belief in rules and principles as automatically leading to sound conclusions.3

Once you found cases 'on all fours' you could sustain a good argument. One examined each word in a judgment to find out its 'true meaning' - its definition. In a debate one demanded of one's opponent: 'define your terms'. To apply a statute, a judge simply looked at the literal use of the words themselves (except for occasional 'absurdities'). There could be genuine controversy on whether the facts fitted within the class of things, legally 'categorized', but the courts appeared usually to settle doubts by well-known techniques. Most academic writers taught that clear concepts and formal logic were nearly always available.

The judges, however, were aware that it was not as easy as the writers expected. This academic approach is now seen as inadequate. After 1950 or so, many inconsistent and uncertain results came forth. It was seen that many common words are vague, or ambiguous, or both. Many ideas cannot be defined, for example 'justice' itself. Secondly, deductive logic is either often insufficient, or leads to opposite conclusions. Principles did not provide unanimous standards, as numerous dissents and overrulings in the upper courts disclosed. Language changed in meaning with tremendous changes in society. Further, defects in formal reasoning in actual cases showed up more frequently, especially when the opponents started from opposing premises.

The syllogism had appeared to be 'scientific'. When a major premise was laid down, either by a clear clause, or an authoritative clear judgment, the conclusion often followed automatically. The main debate was how to 'classify the facts' in the minor premise. Sir Owen Dixon shrewdly realized that this task was often critica1.4 True, in one sense, some concepts are black or white ... some narrow terms are clear. 'A document is either a bill of exchange or it is not; for the formal requirements are laid down by the law in a detailed fashion. '5 Other things are too elusive to be put in a Procrustean bed. Now we accept the painful fact that the older confidence, the simple techniques, do not work.

Let us first see what concepts are elusive and slippery. For convenience, I shall use 'things' to include objects, persons, and events.

3 Shklar 1., Legalism (1964) 1. 4 See his address 'Concerning ludicial Method' infesting Pi/ate (1965) 152. 5 PatonG.W. and Derham D.P.,furisprudence (4thed. 1972)237.

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Messages

Words - 'messages' - are a means of communication in which two 'things' 'meet' in a proposition or statement. 'Messages' involve three separate stages. First, the transmitter; secondly the 'message' itself; thirdly, the receiver. At any one of these three points of communication there may be a breakdown. The transmitter in sending the message may not have made his ideas clear, even to himself; therefore, his communication will be confusing (although usually it will be plain enough for the purpose). Secondly, the message itself may be distorted. The sounds from his throat are conveyed by vibrations to our ears. Written words reach eyes by 'waves'. Both get somewhat disturbed. Our brain's 'hardware' is defective. The message may be like that of a gramophone record, too 'loud' or too 'soft' - or too much 'noise'. Most words are elusive, especially all common words. We may not be sure what particular aspect of the terms the transmitter wishes to convey. The receiver, also, may be rather ignorant, or too stupid (defective 'hardware'), to grasp entirely the ideas conveyed. His mind has to use his brain to interpret words or noises through his eye and ear. Mysteriously, the message usually gets through, though a little distorted. When the disturbance is serious, or the hardware not properly wired, the result is confusion about terms which some 'authority' has resolved, if there is a later dispute about the message.

In human relations we can usually communicate best if we are both 'native language users' - by analogies, examples, questions, nuances, and gestures. One may ask the transmitter (ifhe is available): 'What do you mean by X?' 'Why does it apply to Z?' 'Would you say it was like P?' 'WouldJ include K ... ?' 'Now I see.' Often we are not clear, we use 'negative feedback', we return by 'recursion' to the point where we were in doubt, and then make it clear. Then we go on to the conclusion -like a computer.

To lawyers words are specially significant. Like those in theology the words of the transmitter are expressing thoughts, God, the judge, or the legislature are 'authoritative'. The receiver must accept them as conveying ideas which he is obliged to believe. Historians or philosophers are less restricted, words do not oblige them to take any particular action: they do not bear authority. Lord Mansfield saw that 'most of the disputes of the world arise from words'. All lawyers echo those views. 6

TWO

A New Approach to Language

Now, in the last thirty years, there has been a revolution in language study and logic. The older formal, so-called 'scientific', use of both disciplines has now become the subject of an enormous revolutionary literature. I can set out only a few of these new ideas about grasping what is 'meant' by the terms in a statute,

6 Morgan v. lones (1773) Lofft 160 at 176, cited in Megarry Second, op. cit. 151.

VVords. VVords. VVords 471

regulation or report. 'Meaning' depends on the relationship of the idea we have of a thing with the thing itself according to the characteristics we have in mind of the thingJ

Generally speaking, there are four main theories about linguistic 'reasoning' . (i) The older Formalists trusted almost entirely in a rigid 'scientific' approach to language. They were replaced in England and the V.S. by two new 'schools'. (ii) The Neo-formalists realized that a strictly conceptual approach was now outdated, but asserted that, up to a point, reason and semantic skills can come very close to the idea: that we can understand it by using right techniques. Concepts can be classified after some effort. (iii) On the other hand the Non-Formalists, have serious doubts about understanding the full essence of any concept or sentence; yet believe we can sometimes come close enough to what another is 'conveying' to act on it as comprehended correctly. Disputes about 'ideas' are caused quite often by opposing views about concepts. Can one define anything completely? (iv) Fourth, there are some sceptics who assert that accurate communication is never possible, that no problem can be solved by language.

Wittgenstein at Cambridge forty years ago exerted an enormous influence on English philosophers and jurists and changed their thinking. Reacting (too strongly) from their philosophical ideas being confused by linguistic disputes, they asserted that many problems resulted only from misunderstanding about words. The job was to clarify language, then the problems would often disappear. This was a craze for a while. Then Wittgenstein suggested, in his later work, that people can make sense if they use the 'ordinary chap's lingo' and words not too abstract. Other experts were less rigorous: one would grasp meaning by the way the word is used in a sentence or context. By using certain techniques, words can be made fairly plain. Experience teaches lawyers that legal words are often our 'bane'. Reports, statutes and textbooks are full of words whose meaning in a future case will be uncertain. Even more uncertain will be their application to facts of an 'unusual' type. Yet Wittgenstein was not a sceptic; he was rather a pragmatic thinker who thought the way words were used were a better guide than so-called 'essences' .8

The realization by this powerful group of philosophers was that many of the problems of life could not be solved as long as people insisted on precisely defming concepts. If one's opponent defined it differently, there arose squabbles impossible to solve. It now seemed better to talk to one another in ordinary, nontechnical language; one could see that many disputes were then unreal. Jurists came to perceive that similar efforts to classify legal terms strictly were often artificial constructions - a useful shorthand, but made up by our own minds, and often not corresponding to real things. This danger had been apparent to the thirteenth century philosophers. Aquinas, for example, insisted that the meaning

7 This thought is fully developed by Gregory Bateson. the eminent anthropologist and logician, in Mind and Matter. A Necessarv Unitv (1979).

g Wittgenstein L., On Certainry (1969) 65-72. 'Games' include 'exercises' with little in common: cricket. poker, chess, golf, computer exercises, bridge, etc. All they have isa 'family resemblance'. A 'game' cannot be defined. each type is described as such by its rules. There is a balanced account of the benetits and effects of this fashion in lohnson P., op. cit. 134-8. For two decades English philosophy was stagnant; it consisted of armchair chats about verbiage, is his complaint.


of a word is 'detenuined by that which it is used to signify'.9 Technical tenus were only useful to simplify ordinary language, for easier discussion among experts. The mind 'constructs them' for practical purposes. But in later ages, especially in the nineteenth century, philosophers had used concepts as if they were real in themselves, and one could deduce cOQclusions automatically from them. In England the new school of linguists returned unconsciously to the medieval tradition and realized the dangers of 'conceptualism'. Words can only imperfectly describe a state of affairs, especially a mental state. There is an 'essence' of things or 'states of affairs'; but words cannot describe that essence's boundaries precisely: therefore we should forget about them in general discussions.

Symbols and their use

Three recent High Court decisions have made Australian lawyers 'think again' about defects in legal tenus. The court has twice divided on 'external affairs', an apparently simple notion on which judges could not agree. 10 It reversed unanimously a long series of previous decisions of its own on the scope of 'industrial' (in s. 51(xxv) ), because the earlier courts had misused the tenu. 11 It upset expectations by declaring that taxes imposed by the Victorian government on oil and gas were 'duties of excise', defeating the apparently 'settled' view of the concept. 12

Such controversies reveal vividly our difficulties of expressing legal ideas in 'signs or symbols'. We can sympathize with the cynic that 'we are given words in order to disguise our real thoughts'. Alfred Whitehead, that eminent scientist, mathematician and philosopher, reminds us that we use words for three main purposes: (a) to express emotions, (b) to facilitate communication of mental or physical 'effects' and (c) to influence our actions. 13 Often, in law, all three uses combine; they do help the judge to decide how to act. Law, like all disciplines, uses signs. Musicians use 'notes', mathematicians 'X and Y', etc., artists use figures and colours. Symbols are more general, such as the 'Crown', the 'Scales of Justice', 'Judges are Lions under the Throne'. The modem psychologists, especially Jung, realize the enonuous power of symbols on our unconscious. 14

They are universal and significant, though it is hard to put into words how they operate on us. 'Signs' for the modem lawyer, are simply black marks on the paper (soon they may also be white marks on green computer screens). Americans remember Bryant's denunciation of the gold standard - 'You shall not crucify

9 Copleston F.e., Aquinas (1970) 70. 10 Koowllrta v. Bjelke-Petersen (1982) 56 A.L.J.R. 625; Commonwealth v. Tasmania (1983) 57

A.L.J.R. 450 (the Franklin Dam case); R. v. Coldham; ex parte Australian Social Weljare Union (1983)57 A.L.J.R. 575 (the Social Workers case).

11 The transcript reveals the great care taken to rethink the concept. The Court found that many early decisions had lacked convincing reasoning and lucid use of language. The views of counsel and the judges in a long dialogue about the 'industrial powers' of the Commonwealth and several ways of looking at the words were fully examined .. Effects , also affected the discussion in court, as well as the semantic difficulties.

12 Hematite Petroleum Pry Ltd v. Victoria (1983) 57 A.L.J .R. 591 (the Pipelines case). 13 Whitehead A., The Uses of Language is discussed by Ledercq I., The Relevance of Whitehead

(1961) 127. 14 For a short account, see Jung e., Memories, Dreams, Reflections (1961) passim.


Mankind on a Cross of Gold' - highly emotive and intended to lead to action and affect the whole currency.

Sometimes signs are too emotive: a skilled counsel may cause a jury to forget the facts by eloquent appeals to feelings - 'justice', 'compassion', 'horror', 'unnatural', 'cold-blooded', 'brutal'.

My task is to make some suggestions of ways in which we lawyers can assess words more systematically so as to perceive more easily the 'messages'. I shall give a few examples; everyone can supply plenty more. Our brains do interpret signals; our minds can relate fairly closely to the mind of the transmitter (judge, writer, counsel). Yet few lawyers think in an orderly way when they accept, or refuse to use, some meanings and uses of language.

This method is not 'scientific' in the older sense, as the earlier jurist hoped. 15

I can only try to order what we already know. The first assumption is that words express relationships. A 'landlord' means

nothing alone - there must be a 'tenant' too. Words, therefore, pronounce types of 'things' - classes in the law - murderers, officials, tortfeasor, bailees, theft, assault, fraud, and so on. Relationships are varied indeed.

First what are our difficulties?

THREE

General Problems of Definition

All linguists agree that to define a word, it must have a set of features which could easily be extended to words sufficiently like the original word to bring it within the idea in the definition. One can usually find these outward features by simply taking a look - at their colour,. shape, size, age, etc. For example, a 'football' has the properties of being of a certain shape, size and colour, made usually of leather, inflated and used in a game called 'football'. Even that account is quite incomplete, though normally 'one knows' what a football is. But, how big, what exact shape, what colour must it be? These properties remain susceptible to change.

Some new linguists deny that any concept can be fully, and precisely defined: there are too many variable meanings open. Others are too loose, too open to debate. Dictionaries rarely suffice, as Lord Kilbrandon recently pointed out. He asked was it 'insulting' under the relevant Act to disrupt a tennis game at Wimbledon to support a political cause by going on the court and holding up the game and shouting protests. His comment was one we can all appreciate:

15 The great Salmond saw the law as a 'science' , although he admitted ;1 ought to be concerned with justice, ethics, history, and occasionally judicial discretion in using the law. He opened by declaring that 'if we use the term "science" in its widest permissible sense, as including the systematised knowledge of any subject of intellectual inquiry, we may define Jurisprudence as the science of civil law'. (Salmond J. W., Jurisprudence (7th ed. 1923) I). Minor references to other factors appear in his first four chapters.

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When considering the meaning of a word one often goes to a dictionary. There we find other words set out and, if one wants to pursue the matter and find out the meaning of these other words, the dictionary will give the meaning of these other words in still further words which often include 'the word'. So we are back to where we started! Every synonym has to be defined too. 16

After all, concepts are our tools of thoughts, and the end which the thinker has in mind will determine his use of terms. So concepts from the start have only a 'relative certainty'. (The word 'cat' on a page is not a cat. A Frenchman would use a different shape of the word - 'chat': the idea is the same.) Lord Kilbrandon decided that it was not 'insulting' under the Act in this case. Spectators may have been annoyed at the interruption but no one 'felt insulted' in the circumstances. Often a word 'changes colour', particularly a metaphorical term. Even simple words like snail, car wheel, defective underwear, have all been interpreted as 'dangerous things' for some tort purposes (defective products). When the 'dangerous' notion was extended and applied to careless council officials and Borstal officers the idea of 'dangerous' almost entirely changed its colour. It included a vast variety of harms caused by negligence. 17 An extraordinary growth of an idea, of a concept the idea expresses, a development that certainly was potent - that is, it resulted from 'odd cases', that the House of Lords could not have anticipated, but which occurred as 'random' examples of an idea of duty.

Thus language is really 'magical'. In some incomprehensible way it enables us to communicate abstract ideas of 'types' to others by making sounds or marks that travel through the air by vibrations to others' ears or eyes. Especially is this so of poetry - but even law is thus turned into a system of ideas about things in general and, with less accuracy, to particular things. This approach differs greatly from the abstract conceptualism of a century ago.

loa more rigid discipline like law, mistakes occur if, as I said: 1. the transmitter has not used the correct words; 2. the message gets distorted on the way; 3. the receiver is not competent to grasp the message (for a variety of

reasons). 18

A Practical Example

Assume that a valid regulation provides that 'No person shall bring any vehicle into Green Park'. A mother wheels her child's pram into the park and is prosecuted. The older logic was to use the ordinary 'three-term syllogism' (though judges rarely use these technical terms). This syllogism is normally:

16 Cozens v. Brutus [1972J I W.L.R. 484. Megarry Second op. cit. 151 makes reference to an American judge who observed in despair that 'dictionaries are the last resort of the baffled judge'.

17 Dut/on v. Bogllor Regis V.D.C. [1972J I Q.B. 373; Anlls ,'. Merton London Borough Coullcil [1977J 2 W.L.R. 1024. Now liability under the principle in Donoghue v. Stevellsollll932] A.C. 562 has been extended to a situation where a job was done negligently but no harm to person or property resulted- only a financial loss. Junior Books v. Veitchi. [1983] A.C. 520.

18 I shall not analyse the types of definitions. The best discussion is that by Robinson R., Defillitioll (2nd ed. 1954). There is a full account of the problems in law in Stone J., Legal System alld Lawyers' Reasoning (1964) chapter 5. Professor R. Dias has pointed out that definitions must be worded to suit the person for whose benefit a term is being detined. Therefore the definition for a lawyer of a word will often differ from the definition of the same word for a non-lawyer (Dias R., 'Mechanism of Detinitions as applied to International Law' ( 1954 ) Cambridge Law JournaI215). Every discipline tailors the same words differently - as scientists do with 'triggers', 'neurons firing', 'particles colliding', 'species developing', 'new devices', plants being a 'family'.


i. Major Premise (the rule). 'Any person who brings a vehicle into Green Park has committed an offence' ('the rule').

ii. Minor Premise. Mrs. X brings her child's pram into Green Park (the 'fact'). iii.Conclusion. Therefore, Mrs. X is gUilty.

This statement, though formally correct, leads to many confusions in practice. A dictionary will not tell us what a 'vehicle' is 'for all purposes'. (A child's tricycle, a wheel chair, an aircraft making a false landing and lots of other odd, unexpected facts may, or may not be, held to come within the more narrow definition).

How can lawyers cope with, such concepts? In the late fifties H. L. A. Hart started a revolution in legal language. Making

use of a Wittgenstein's practical technique, he announced that it was impossible to define any legal concept precisely, the right method was to look at the situations in which the courts had employed the term (for example, 'right', 'possession', 'corporation').19 These 'uses' settled what was included. Later he modified his stand a little by saying that a word, though it had no 'essence' which clearly marked its boundaries, had a 'core' of meaning, from which one could often descry 'standard uses'. Words also had an outer range of 'fuzzy' or 'peripheral' connotations. The court must use its discretionary powers to assign a sensible meaning as best it can to the fuzzy-edged situations.20

In the Green Park Case surely no judge would punish Mrs. X. He would ask himself, 'is a pram a vehicle for the purpose of the rule' - peace and safety in a park? Clearly not, because it does not disturb the 'peace and quiet of the area' . But what of a truck carrying soil to the shed of the gardener?

Hart began by stressing that the common mode of definition is ill adapted to law. Yet the lawyer need not be confused: legal notions however confused, however fundamental, can be elucidated.

A New Approach

Professor Moore has proposed that lawyers need a more extended syllogism.21 Instead of three steps, he uses four: Major Premise. The term- 'vehicle'. Minor Premise. The fact - a vehicle is brought in. Second Minor Premise. 'A pram is a vehicle'. Conclusion. Doubtful. What inferences follow from the minor?

19 Hart H.L.A., 'Inaugural Address; Definition and Theory in Jurisprudence' (1954) 70 Law Quarterlv Review 37, Glanville Williams had thrown doubts as to the accuracy of legal terms (see . Language and the Law' (1946) 61 Law Quarterly Review 71, 179, 293, 294) but his ideas were not followed up then. .

20 On Hart's distinction between "core' meaning and "peripheral' meaning, see Hart H.L.A., "Scandinavian Realism' (1959) 17 Cambridge Law Journal 233, 239-40, See also Hart H,L.A., "The Separation of Law and Morals' (1958) 71 Harvard Law Journal 593, 607, in his famous debate with Lon Fuller. This, of course, is not a complete solution. It is useful to see how the courts have used a . corporation' . But a corporation is not a typewriter or an elephant. There is some kind of "essential quality' , often hard to set out. Hart admits that courts still very often have to use discretions - choices as to meaning and application of most terms (see Hart H,L.A., Concept of Law (1961) chapter VIII generally), The periphery may be very extensive in common words, See Hart, op. cit. 14-5, chapter VIII, The "Green Park' example is Hart's own invention.

21 See Professor M. S. Moore's classic lengthy (the article runs to some 150 pages) examination in "The Semantics of Judging' (1980) 54 Southern California Law Review 151.

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This opens up the discussion more usefully. What 'properties' has a vehicle? General terms are involved. The more general or abstract ones cannot be defined, only described by certain properties, as we shall see.

How does the judge know that a pram is a vehicle? He would know if, in some earlier case, a court had declared that a pram was a vehicle under the Act. If not, how can he find out? There is no rule of law that compels him, no authority binds him. Hart's division here into 'core meanings' and 'penumbral meanings' will help as to some things - motor cars, motor trucks, motor bikes, perhaps trail bikes, are obvious examples. A pram has not the criteria of a 'vehicle' for this purpose. It does not represent a danger to anyone else. Plainly, the judge has a discretion. Is she guilty or not? Literally, 'Yes'. Sensibly, justly, 'No' .... What would Parliament have meant if it had thought of prams? He can have no clear picture.

The same problems arise, obviously, as to what kinds of 'bringing' come within the terms. 22

Previous Decisions help a Little or a Lot

We would like to have more specific tests. The 'penumbraI' area often leaves a wide gap, which it is hard to fill, even in a single case. The judge is obliged to use his own 'non-formal' reasoning. On the periphery how is he to tell whether a tricycle is included? What he must seek is an analogy, a similarity or difference. Every fact in any case is like a fact in some other case in some respects, and unlike it in others! (A snail is not like a gun, yet can be 'dangerous' to health like a gun.)23 How like, or how different must it be? Some Formalists realize the difficulty, yet believe that the words in a rule can be made clear ultimately by going higher' above them' to the principles. and then to the goals of that society. Non-Formalists deny that any words, even in this fashion can be straightforward enough, in any case, to have a specific, predictable connotation.

Naming Things - Classifying Names

Words are names, 'nouns'. Alone, no noun, no name, has any significance. If I go into the street and shout 'tiger', no one would take much notice of me, or know what I meant. If 'tiger' is to make sense, I must put it into a sentence. If I say to my son: 'a tiger is a large cat', then even he would understand what I am saying. I make sense only by connecting tiger with other words in a sentence. Words must be linked. Nouns give the word a meaning for given circumstances when

22 One simple example is that of the air pilot who has to make a forced landing in the park. What are the 'features' of 'bringing"? Again, the judge must make a personal choice, provided it is rational and not contrary to existing law with the purpose of the rule in mind. Alan Paterson' s account of the Law Lords' own views confirms this truth; see Paterson A., The Law Lords (1983). He wrote this book after discussing with some fifteen active members of the House of Lords their ideas on their techniques of jUdging.

23 Bowen L.J. said, of a written statement affecting a third party to a contract, 'the law of England does not go to that extent; it does not consider that what a man writes on paper is like a gun or other dangerous instrument'. (Le Lievre and Dennes v. Gould [18931 I Q.B. 491, 502). In fact, it now does, since Hedley 8yrne & Co. Ltd. v. Helier & Partners Ltd [19641 A.C. 465.


connected, thus, with other nouns. 'The cat sat on the mat', combines two names, which provide the meaning of the whole thought, and each word in one proposition. Then the individual names have reality. 'Naming' is in that sense tautologous. A tiger was a cat long before anyone called it 'tiger or 'cat'. Using terms which we already know, we have an 'image' of 'tigers' and can give the name a significance. Subject and predicate go together, in a grammatical and syntactical order, to make a concept real for the listener (or receiver). He learns what I know. It is not tautologous to him then. Afterwards it is.

Nouns are names. Also verbs are names. 'Sat' makes Qne ask: 'what is it to sit on?' (This is another noun, 'sitting', used here as a verb. The same for adverbs. 'Calmly', causes one to ask 'what is calmness?' Another noun used as descriptive.) Thus, to the speaker and also the hearer, who are 'native speakers' of that language, a sentence gives the meaning of those nouns' ... 'X' is Y ... '. We can then go on to classify them for some given purpose. Classifying gives form to matter, as Plato and Aristotle saw. Thus wood in a tree becomes a table once it has been constructed in the known form: of a table out of the 'matter' in the tree. We now give the wood the name 'table'.

This practical analysis is borrowed from a long, splendid study of the learning of words, and of the evolution of names, by that intelligent logician, Gregory Bateson. Names are things we learn through our senses, as Aristotle, Plato and Aquinas stated. We see a number of cats, and then get an idea of 'catness' (or a number of chairs, and get an idea of 'chairness'). No particular chair is in itself sufficient; it is only after we have seen many chairs that we can get some idea of their' properties' . Yet there are no cats in our minds, or even in our brains. 24 There are simply ideas which are non-material, but link up all the individual cats or trees we have seen, and can now name. Then we can teach them to others. These have form now. Our knowledge is tautologous indeed, but the proposition makes sense as a starting point. This is the process of learning. We learn by 'classifying' and 'typing'. Once two persons agree on the 'linking of ideas' ,they can apply them in concrete situations to facts, normal or random.

Typing Names and Forms

We can 'type' everything, or almost everything. 'X is a typical Y', we can say of a thing. Typing makes the term able to convey its significance to others. Lawyers in fact do this by 'categorizing' it, after seeing many examples from cases. A general image of the concrete objects turns into a concept, with properties which enable us to distinguish it from other things. The essence oflearning, of typing, of classifying, is seeing differences. To see differences is a major role for the judge. It is the heart of legal debate about precedents, statutes and decisions. 'Same' or 'different' will often prove the main factor. 24•

Giving names requires one of two efforts. We may: (a) show how they appear to us: speak of their outward look, size, colour, shape and so on, in a list. That is simply to describe the thing, and to realize that there is a good deal which we have

24 Bateson, op. cif., 37. 24. LonergllnB. F., Insight (1958) passim.


not said about it. However, a description may be enough in certain circumstances, but description only gives some data about its parts without saying more; (b) show how they fit together within themselves: the 'relationship' between each atom, each part, each sub-section, in a hierarchy. To set these out is to explain them. Then we see more deeply what they consist of, their inner properties, why they ought to be called an 'X', like looking at them through an electron microscope to call something 'cancer', not visible otherwise. Explanation is the vital defining tool. Many things we can only describe; democracy, justice, freedom, law. They cannot be fully analysed. Other things can be explained, therefore defined. We can give an even fuller meaning, as our knowledge grows. A concept will be varied as we learn more about it and realize that it has properties which we had not seen before; concepts are all 'anticipatory': they grow in unexpected ways. They have a potential which we cannot perceive in advance - the random cases are so unexpected.

Dixon, c.J. saw that very many words defied prediction as to their use in some future case; but it never deterred him from giving judgments on the instant dispute and the existing meaning of the minor premise. 25

FOUR

The Properties of Words

The general line of Professor Moore's above mentioned article on language in the law is useful because it combines both linguistic and logical features in a systematic study26 whereas we tend to look at words as mere individuals, not classes.

Can we ever settle on all correspondence of our language - our description or explanation - with things? Remember that description is not explanation; it only gives the outer appearance, as it seems to us at first sight. This creates the debate between the New Formalists and the Non-Formalists. The other schools I shall ignore here.

The Source of Change and Trouble - The 'Random Situation'

We first discussed the vital importance of the 'random situation' that does not easily fit into any class. These are in law the borderline, hard, novel, troublesome cases. They are departures from the norm. For the moment, I note that

25 Sir Owen Dixon said 'it is of the very essence of the accepted judicial method that the result is not pre-detennined': Jesting Pilate. op. cit. 164. And, two eminent jurists agree that 'with a little skill (and a lack of scruple) we can reach almost any practical result from any particular theory': Paton and Derham, op. cit. 409. The 'picture of reality' varies with each judge to some extent: he has unconscious theories at the back of his head. His only barrier is to keep within the limits set by previous courts. Bateson, op. cit.

26 Moore, op. cit. 173. An excellent judicial example of this method of a court measuring concepts: 'the "totality" of the process of "education" consists of a balance between spiritual, moral, mental and physical elements, was not limited to formal instruction within the school or university and did not exclude pleasure in the exercise of skill' (per Lord Hailsham in I.R.C. v. McMullen [1980J 2 W.L.R. 416,425-6). A pretty lengthy account, but sufficient forthat case, to describe 'education'.


it is mainly the random situations which cause trouble. They upset the lawyer. Will they go into the class, the type, the name, we lawyers have already constructed? Or will we have to 'form another class' , if they are numerous enough? They force us to re-examine our first definition, our original idea or concept. Therefore, we test it by a process of 'negative feedback' (or self-correction, as any careful lawyer does). Randomness appears all throughout our lives, and affects all our laws too. It is a major problem to physical scientists.

In our legal history we have had these images of things which we have turned into ideas and names. (Only a few words, like prepositions - 'in', 'out', or the words, 'left' and 'right', escape naming). Major legal terms like trespass, property, theft, negligence, have evolved by explanation, and corrected by 'feedback'. The unexpected case has caused upper courts to devote much time to new criteria of concepts. Naming follows observation and the creation of images and ideas. They are the bane of the man who wants everything static and orderly. But it is only by coping with the random situation that any system develops. As we improve our knowledge of the world we discover new causes and effects, new 'states of affairs' which have to be named and classed within the system.

FIVE

5 imple VV ords - VVhat does a Word Require?

I look first at the various criteria suggested by Moore to test properties of ordinary, rather narrow, concepts.

Natural Class VVords

Plainly any word has a meaning only when placed in relation to other words. 'X is Y' - a 'predicate'. Formalists believe that there is nothing to language except a list of expressions that form a sentence, or that the only important aspect is the logical relation between the words in that sentence, however odd. The NonFormalists maintain that a proposition, including two concepts, also must relate to the real world, to concrete facts. They combine the meaning of a concept with particular instances of its use in life. To every predicate -like 'X is red' - there is a 'property' and a 'class' which is made up of the 'properties' features, qualities, etc. of the 'thing' (person, act, event, etc.). Every thing has at least one property, for example, usually, 'ripe apples are red'. These make up 'natural classes' of apples. Yet of course, the separate properties are not the class itself, they constitute it. A 'body' is more than a collection of limbs and a head. A tort has the properties of duty, foreseeability, breach of duty, the loss which is the result of the breach, etc. All the properties do not make them into a 'tort'. The idea of tort is 'separate'. The whole idea is greater than the sum of the parts, as in a car, a body, a house, a general theory of atomic energy, a 'duty of excise' .


What Does a Word Include - its Scope?

A Formalist believes that a judge can decide a single answer in at least some, if not all, cases. A Non-Formalist denies this certainty. Both Formalists and Non-Formalists agree at least on one major theorem: that every word needs a 'set of necessary and sufficient conditions' to be correctly defined. In other words, meanings are 'coded' by the signs (words, etc.) we humans have made up about the thing. Formalists say that some have codes; Non-Formalists deny this. Criteria describe 'a word in its two aspects': (a) An 'extension' to a 'class of all things of which the noun is true'. Thus 'a dog' includes all dogs (alsatians, boxers, sheep dogs, etc.)26a Its 'intension' is a 'narrowing' (a murder must result in death within a year and a day.

First, let us remember that there are' some formal definitions that are useful as such. Professor S. Stoljar makes this useful point clearly:

Our evaluative element is controlled by yet another feature. This is that in many cases the need to evaluate or reevaluate new situations turns out to be greatly diminished, depending on the descriptive strength of the formal definition. For the wider the latter's descriptive scope, the greater will be its field of included similarities or excluded differences. So even though the formal or defining element of a moral concept can never insulate it altogether from evaluation, the fact remains that a formal definition may otler much conceptual stability. For one thing, the formal definition of murder can stand by itself, notwithstanding the fact that as a principle murder is subject to old and possibly new exceptions; for these exceptions can relate to circumstances which are sufficiently separable so as not to challenge directly the main formal definitions. For another thing, as we have already seen, ever a formal definition can have wide material applicability, if only because, as in the example of murder, it does not in the least matter how, or in which of many possible ways, the killing occurs ... 26b

I have summarized the view of a distinguished English philosophical linguist, Antony Quinton. 27 The article is a little old now, but just as effective as it was in 1957. It is still the theory most applicable to the law. It includes similarities as one test of whether two 'things' possess the same set of properties. They constitute a 'natural' class (one existing in 'nature') not an 'arbitrary' class Call the objects in my left-hand pocket'). Natural classes are natural because they simply are so in the real world. Once you have a natural class you can give it a name: 'a room, a tort, property, murder, a car' .

A specific word, as we use it in law, is best understood by the way in which it is learnt through examples of their application - for us, its previous application by courts. How far has the High Court extended or narrowed its range? Of course, that does not prevent the application being extended to new kinds of rooms, torts, property, murders, cars. 'Typing' is an essential step in learning about anything: 'What is it?' Once we know, we only have a tautology 'X is X', but that statement at least is correct.

26a Moore, op. cit. 26b Stoljar S.l., Moral and Legal Reasoning (1980) 120.

27 Quinton A., 'Properties and Claims' Proceedings of the Aristotelian Society, II November 1957, 88. In adminstrative law, if a finding is so unreasonable that it could not have been made by reasonable men, then it is not a decision. In Anisminic Ltd v. Foreign Compensation Commission [1969] 2 A.C. 147, the House of Lords said the decision made below was only a 'purported decision'.


To say' dog' is to show, for example, that a particular animal possesses the vital properties that 'dog' involves. Size and colour are not 'special' to dogs, four legs and teeth are.

Moore28 calls 'intension' ... 'What remains of the meaning after one has determined its extension'. Once the courts have determined its limits, what does it now cover? That is often difficult to answer. Moore said you can call a dog 'a carnivorous animal with non-retractable claws'. But, if so, a cheetah is a dog, because it has these qualities. So the species, 'dog', has to be limited by adding other qualities, for example 'domestic'. The meaning also changes by what the word means to different individuals: to the lawyer one kind of animal, to the biologist another, when 'classifying' it. Both extension and intension aim at setting out the conditions of the thing a word 'names'. The word is only a 'sign' , to be interpreted by the brain through the eye. 'Contract' requires the 'properties' of offer, acceptance, and consideration, as well as not being annulled by fraud, duress, some kinds of mistake, or illegality. If these conditions, these properties exist, we ge~ close to defining it. Yet, to completely estimate whether certain facts make a contract, we have trouble. Even the above description would leave uncertain many kinds of contracts. We need a large text book to describe contracts fully, even after giving a 'first' kind of so-called definition. It is impossible to type it simply. There are always differences when facts differ, especially when unusual, random ones appear. 29

A further catch is that each word (offer, acceptance, etc.) also needs in turn to be defined or described. What is its extension and intension? Does 'offer' include a nod at an auction? Is a telex message an 'acceptance'? Lawyers could give thousands of examples of doubtful scope.

Different Contexts - References

The Formalist might next try to limit possible meanings by 'reference to the things it names' .30 Law 'uses' the general name (a 'trust') to name particular facts. Courts have named fact situations A, B, C, D, as constituting a 'trust' - what about 'E'? Is the novel situation 'E' within the extension? (Does a push-bike, a hovercraft, come within 'vehicle'?). The concept has named some situations as being within it. The name of each part of the situation depends on those properties the judge thinks material in that case. A 'building' normally includes a house or a

28 Moore, op. cit. 167. In Brien v. Dwyer (1978) 141 C.L.R. 378, the deposit was paid to the vendor's agent about forty days late, but accepted by him for the vendor. The vendor later repudated it. The majority in the High Court said that payment on the exact date was an essential feature. Stephen J., at 399, gave the reason: 'otherwise a deposit will no longer possess those qualities which give it its special character and importance in contracts for the sale of land'. Jacobs J. said, at 463, this was so at common law, but not in equity, since the vendor had not objected and had lost no advantage through the delay. Upon 'meant within a reasonable time', the majority found 'reasonable' too uncertain. The judges differed as to the 'intension' and 'extension' of 'upon' in a land contract, at least as to the ~~. .

29 John Finnis takes 22 lines even to 'describe' what he calls 'law'. He does not attempt to define It fully. (See Finnis J., Natural Rights and Natural Law (1980) 243). Law itself is quite indefinable, all agree on that fact.

30 Moore, op. cif.


ship. Is a doll's house, a kennel, a tool shed, a name within the total name, 'building'? We cannot know by any simple test of what is a 'proper' extension or intension. '31

This is a 'referential theory'. We ask, what does the thing 'refer to'? No clear answer emerges. There can be general tests of reference. A choice is needed; a dersonal view of what unusual things are covered (above all, for new 'things' like video-tapes, takeovers, software, natural resources, solar energy). 'Referring' to a list of things plainly within the named class will not enable lawyers to decide about some new type of the class. Classification is what we call a 'shifting' processconcepts move with time.32 So a name is not a matter on which all can agree in all cases: it depends partly, too, on the purpose contained in the sentence as part of an act of judgment - as with the pram or toy bicycle in the park.

The Analytical Meaning: What a thing is not, when placed in a sentence

This approach is to look at whole sentences. We saw that no concept means anything sensible except in a sentence. Statements are true solely by virtue of the meaning of each of the words which appear within them.33 The nouns are related, but what does the statement leave out? A pig could not be called a 'bachelor', because it is nota man. Again, if you wrote 'a bachelor is a married man', it would be absurd. 34 Could one argue: 'a bicycle is not a vehicle, because a vehicle, for the purpose of this rule, means driven by any power, that is mechanical'?35 But that test is still not 'objective'. How do we know? The Act does not say so. Why is 'power' the whole criterion? The regulatory sentence itself cannot tell us. 'Vehicle' is not an 'analytical term' - a concept that can cover all possible types. What of a small battery-powered toy car? So one tries other tests, often by one's subjective view, based on a variety of general criteria (justice, equity, morality, effects). The judge can then make a more intelligent guess. The Formalist says these supply all the criteria we need. 'Whatever it is, it is not that' . That settfes some doubt, but not all. The judge is still left with many uncertain types of vehicles. Hart calls this a 'defeasibility' test. You ask: 'what is outside the criteria'? That limits our search.

31 Professor P. S. Atiyah has denied that there is any 'Doctrine of Consideration'. There are only many 'considerations', which judges have accepted as sufficient for a variety of reasons Uustice, expediency, sense). Yet contract and consideration are very ordinary words in a legal sense (see Ati yah P. S., Consideration in Contract (1970) passim). In a later textbook he declared that consideration used to be regarded as an essential property in the idea of contract. This 'has largely fallen by the way side in modem times', replaced by mutual promises. Then it became . frozen ' into a rigid pattern. Courts strive hard for fairness in exchange. The 'doctrine' has so many exceptions that the criteria are not fixed. Many cases are very hard to reconcile with the orthodox doctrines in the books. 'My theme is the same as Corbin's, namely that the conventional account of consideration no longer accords with the law actually enforced in the courts.' See Atiyah P.S., An Introduction to the Law of Contract (1981) 95- 105 especially.

32 Levi E.H., Anlmroduction to Legal Reasoning (1948). 33 Moore, op. cit. 167. 34 Ibid. 170, 174. 35 I bid. 179, 239. Remember Lord Goddard' s definition of a . carriage' as . anything that carries'; it

included a bicycle, contrary to the popular picture of a bicycle as carrying persons at the time, not just anything on two wheels being pushed along (Corkery v. Carpenter l1951] I K.B. 102, 106). The context of the Act (to prevent accidents by drunken road users) added the vital 'property'; one easy method is to observe by watching people moving about on roads.


Even so, we cannot predict whether a court will declare as to whether some abnormal 'thing' is outside the term. When it turns up ten years later it cannot solve the 'hard case' automatically, even after a thorough study of all the criteria set out above. Formalism fails here, too.

The 'Observation' Criterion - The Pointer Test

A third Formalist proposal is to see the meaning by simply observing the facts. Many things, he maintains, can be seen to be so by 'just looking' at them. A pram will come within 'vehicle' after you see several prams; a pram is something that 'carries on wheels'. These facts give the answer, like a scientist summing up his experiments on things. Theoretical statements are better understood if you reinforce them with visible, concrete examples. Criteria in real life are empirical. A general proposition or concept is only a 'shorthand' for a set of seen facts. However, even scientists now admit the best observer cannot be trusted alone to see even what his experiments measure. They candidly talk of 'observer bias' .36

Moreover the borderline examples leave us quite uncertain what any observer would classify as an 'X' by only looking at the list A, B, C, D ... which are all within X. Nevertheless, the random fact P may remain hard to classify.

Differences Are Vital Tests

The main issue, as I stressed earlier, is that we must ask 'Is it different?' ... 'If so, is the difference important enough to make the earlier case not an authority, so that the class is so limited as to exclude, say, an electrically powered invalid's wheel chair'?

Again, the Formalist approach breaks down. We do not know in advance whether the court will find facts in the minor premise so very different that the concept clearly does not apply to it. That is what counsel debate - the degree of difference. Most cases before the High Court have been random, and the decisions made on a degree of difference in some respect. As Menzies J. once admitted, the difference may be 'a matter of impression in the judge's mind'.37 It may, or may not, fit that judge's pattern, his idea of the 'thing itself', not of the 'state of affairs' of which it is a part.

Differences abound in nature, especially in biology - even in the D.N.A. itself, as biologists know. Many differences are harmful: the thing affected by them will not survive. On the other hand, biological evolution takes place by natural selection. That means that in changed circumstances, the mutant, the

36 Scientists have become aware of the 'bias' of even the most honest observer. David Born, the physicist, rejects 'any kind of description which considers the observer and the observed system as separately existent'. It is much more complex when one is observing human beings than chemical reactions. His own 'preconceptions' lead the scientific observer to misread his dials. He sees what he hopes to see; others must check him (see Born D., Quantum Theory and Beyond (1972) cited in Hardy A., Harrie, and Koestler A., The Challenge of Chance (1973) 226). The same risk is well known to psychologists as showing the need for . feedback ' by other observers who realise the subjective factor in manl areas.

3 This was in reference to judging when a group of workers was 'engaged in industry': Pitfield v. Franki (1970) 123 C.L.R. 448,467.


different thing, will survive better than the normal: the species as a whole will exist despite any change of environment. Thus it may be beneficial: Law needs mutants to evolve with the needs of the dynamic age.

So it is with lawyers. We learn a great deal from the mutant, the 'nice case'. We have to alter our definition of the type. We may even have to invent a new concept (such as 'constructive trusts', 'frustration', 'dominate the market'). Transmitter and receiver have a common idea of vehicle. Each motor car is different, for example, in many ways - size, speed, colour, brakes, steering; yet the idea of 'carness' pervades all our thinking about cars (and vehicles). A toy electric car may fit if it is large and fast, not if it is small and slow. Consequently, the 'observation test' is not perfect, usually because the unexpected happens; and observing behaviour will not always automatically signify the 'type' of action performed.

Random, novel, different 'cats' also differ in colour, temperament and so on, but these lesser differences do not spoil our conviction that each is a 'typical cat' . The pattern is the same for all in the class. The name is notjirst a label our brain places on each animal. In our brain there are already images - particular casesthat create and limit our name-giving. We see many cats, tigers, jaguars, leopards. Then our senses lead us to an image of catness - an idea, a form of any cat we see later.

What things does the type 'cat' include? A lion is biologically a cat. If the statute allows cats to be brought into Green Park, can one bring in a pet lion? Or a jaguar, even on a leash? Will the court accept the name as including that degree of randomness, difference of type? If the lion or jaguar is very large and ferocious enough to attack small children, will that 'mutation' be accepted as covered by the name for the purpose of being 'dangerous' in the park? As Devlin J. remarked about a tiger being' dangerous' at law even if harmless in fact:

If a person wakes up in the middle of the night and finds an escaping tiger on top of his bed, and suffers a heart attack, it would be nothing to the point that the intentions of the tiger were quite amiable. 38

The tiger, tame as he may be, is still in law a 'wild animal'. The law has so decided the type. All tigers are 'wild'. The observation technique fails more dismally with respect to abstract terms such as 'wilderness' or 'dangerous'. A kangaroo is probably dangerous.

'Malice' in law needs to be stated in/actual terms to have a clear meaning. So the Formalists may say, as to 'murder', 'what actually did the accused do?' If one replies 'that malice may be express or implied', one is still not sure of the result of one's observations for we cannot look into the accused's mind. The Formalist replies that malice necessarily includes 'intention', and we can tell that person's 'intention' at the time just by seeing what he did. But the answer is that 'intention' requires 'knowledge' and 'purpose'. Those terms are also theoretical, not empirical. Looking at the facts cannot tell us if the consequences of the act were 'believed in' by him. Was he obviously 'reckless'? Was the act 'accidental', or not even 'probable', or the result 'desired'? 'Desire' itself involves only a guess. How

38 Behrells v. Bertram Mills Circus Ltd. [1957]2 Q.B. I, 17.


does one prove it? The Formalist still hopes that the answer about the accused's mental state can be found by the outward signs, his acts. Plajn visible facts will estimate it. This, however, leads to conclusions of doubtful validity in many cases - as psychiatrists and criminal law courts know. The 'observation test' is thus never precise enough. Our senses so often deceive us: we still cannot see into that accused's mind. Yet, of course, his behaviour is a very important factor. It is all we can go on, in most prosecutions, if the jury is satisfied he did it with malice.

The notorious case of D.P.P. v. Smith exhibits the dangers of judging mental states from 'objective looking' .39 The House of Lords, taking the descriptive view, declared that one should judge intention by asking 'what natural consequences should any rational man have foreseen in the circumstances'? They looked only at what Smith did. This decision brought a flood of criticism, especially from the High Court, which preferred the subjective test and described Smith as containing a 'fundamental error'.40 One must leave it to twelve ordinary people to decide on the test of 'proof beyond reasonable doubt', after hearing the accused's explanation.41 A high probability of his state of mind- not a certain one- is all we can achieve. 'Recklessness', too, has caused controversy between experts: how can one tell from actions and guessing at the degrees of wrongful behaviour that might be called 'reckless'? The 'observation' technique again defeats the Formalist. What about unprecedented types of killing - (like pointing the bone at an aboriginal, or setting fire to an occupied house).42 Again, it is our minds that 'make up the relations' betwen the two things (even 2 + 2 = 4). The killer's action and his picture of reality may not coincide. So 'typing' his acts requires proof of the highest reasonable kind: that is all we can achieve in criminal law . In civil law we are objective quite frankly - we do not look into his mind.

This is close to the 'ordinary man' test. It has been held in America that to call a man a 'bastard' can be a 'term of endearment' .43 In listening to a speaker, the tone of voice, the speaker's opinion, helps to decide his opinion but not beyond doubt as to his intention, the meaning he seeks to convey.

The 'Disposition' Test

Some English Formalists used to rely on this method. It is an empirical one: can the idea be 'proved' scientifically? It resembles observation, but is more strict in its requirements, it calls laboratory-type investigation to its help.

One can tell and name a mental state by demonstrating that certain acts show a tendency to act in a given way. We can say 'He does X, Y, Z, so he must be a manufacturer'. This criterion has now been given up as too loose, unclear and

3~ D.P.P. v. Smith [1961] A.C. 290. 40 Palmer v. The Queen (1965) I11 C.L.R. 610. 41 To deduce 'objectively' from behaviour as to one man's state of mind was never a sure technique

to SirOwen Dixon. e.g. Proudman v. Dayman (1943) 67 C.L.R. 536. The accused must be allowed to explain why he acted as he did. The test is subjective. The criterion is observation atier the jury has seen and heard the accused. The danger of judging and naming character and states of mind from conduct is made clear in Greene L.. Relating (1983) chapter 6.

42 Hywn v. D.P.P. [1975] A.C. 55 is a striking example. where two judges dissented in the House of Lords about the relation of an act to the equivalent of an . intention . to commit murder. The danger of judging and naming character and States of mind from conduct is made clear in Greene L.. Relating ( 1983) chapter 6.

43 Cited in Megarry Second, op. cit. 35.


idiosyncratic. It cannot prove the conclusion. It was the basis of a theory of 'verification' concerning beliefs: that they must be capable of being demonstrated as certain. You could 'prove' what a man did or thought by looking at his tendency as exhibited by his behaviour. Courts do not like this kind of evidence about concepts or propositions; for example, they refuse generally to allow prior convictions to be used in evidence as showing a tendency. Scientific proofs of beliefs or states of mind are not accurate enough. So Formalism in this shape also fails. Even its former advocates have abandoned the verification of dispositional criteria. Many things are true which cannot be demonstrated, such as our inner feelings, intuitions and emotions.

The Contextual Test

The Formalist can try again. He can argue that any word can become clear when used in a context. Its meaning does not depend only on its having a 'set of necessary and sufficient conditions' in itself. The context will nearly always clarify the necessary and sufficient conditions. It will show better the type of the thing actually covered by the statement. This is a sensible approach, as we know, up to a point, since no word alone means anything. This, however, is also a limited and subjective criterion - it does not tell the judge for certain what Parliament intended to include in 'vehicle' about the pram, or the toy bicycle, even if one looks at the whole sentence. In the larger context of a report, or a statute, the 'criteria' will better assist the interpreter. A 'queer word' or clause, however, is still open to doubt. Judges disagree strongly on its significance and relation to the thing. Most cases in the higher courts are disputes about statutory words. The most common words have what Hart calls an 'open texture'. The context can reject some meanings, for it involves questions like 'who said it' ... 'when it was said' ... 'in what circumstances' ... 'to meet what argument'? Some ambiguous words do become thus clearer. But the context itself may be ambiguous: what was the purpose of the Act at the time? What was the reason for decision on it? 'External affairs' is not clear in 1984 from the words set out in 1900. Why was it employed? The judges on the Franklin Dam Case disagreed about its aims, extent, and reason for inserting it as a head of power then and now, and for its extension and intension.

Some judges say in effect:

the words are clear; I am here to enforce the law, good or bad. I cannot be sure what Parliament intended, but I shall rely on the words themselves as the best evidence'. Another judge retorts: 'No one acquainted with the English language could possibly give that word that meaning.

Even the 'definition section' in an Act often leaves the application of a term 'open'. It too must be 'classified', although it excludes certain typeS.44 There is no

44 Jessell M.R. put it with his usual clarity . . Suppose a testator said, ""I give the black cow on which I usually ride to A.B.," and he usually rode on a black horse; of course the horse would pass, but I do not think that any annotator of cases would put in the marginal note that . cow· means . horse'. You correct the wrong word used by the testator by the context; when you find it was an animal on which he daily rode, you would say he meant a horse, he would not ride a cow in this country. It is not that the word has a different meaning from that which it usually bears, but the context shews the testator has by mistake used one word for another.' Megarry Second, op. cit.


need for me to discuss the notorious problems of interpretation a,statutory context may involve. (Not only a whole sentence bufalso the whole setting of the law and the society.) 'Colour' and 'context' of the entire Act are one total entity only, which includes lesser entities, as a car includes its parts. Viscount Simonds himself shows that fact clearly. Although regarded as a 'literalist', he insisted on reading the whole Act in all cases before concentrating on the vital clause. 45 Judges have, therefore, more scope in their application when they can take advantage of their 'sovereign power of choice' to prevent borderline random cases becoming too inconsistent with general principles. Random cases are particularly frequent today. By fitting these 'into the system', conceptually, words in the Trade Practices Act will acquire new emphasis. This gives courts a quite extensive choice; usually they have exercised it with restraint and consistency.

Dicey realized that in all federations the judges are really supreme.46 The High Court has been reluctant to rely much on consequences, or allow special exceptions to general rules on 'extra legal' grounds. It has preferred continuity to individual justice. The context varies in each case. Any situation can be close to a 'standard instance'; others are too borderline to be typed. Lately it accepts clear evidence that the winds of change are blowing. They have allowed 'floods', to follow their wide interpretations. Few in 1900 would have expected nervous shock, for instance, to have been extended so enormously. They prefer to 'describe' a concept rather than to 'explain it' , for that requires a full investigation of facts. The context is so much more complex and unbounded in some areas, as we shall see.

'Characterization' requires criteria, but these have rarely been spelled out in full. Often they have changed. The attitude of Sir Garfield Barwick to the criteria of s. 92 dramatically differed from those of Sir Owen Dixon. Categorization in general has proved difficult in constitutional interpretation, as we all know. This is fortunate, in that it leaves openings for the mutations and the unexpected, even at some cost of clarity (for example, the potential expansion of the 'corporation's power' and lately of 'external affairs'). All comes back to the number and force of instances that one has seen of a thing, and of the Platonic idea I mentioned, that one has to give 'form' to the matter 'before one can think very clearly about any essence'. The more vague the idea, the more contention about any concrete use. Does it correspond to the form of it already in our heads? Therefore, the contextual test falls short. One cannot foretell its boundaries in future cases. Common sense may make a context more helpful. Take the word 'shooting', says Moore. The context - 'shooting a film', or 'shooting a man', or 'shooting through', - will leave little doubt about the kind of 'shooting' the speaker had in mind. The context nevertheless may on the contrary make some words more ambiguous, because it is too vague. Moore gives an example: 'He went to the pretty girls' camp'. What

45 A .-G. v. Prince Ernest of Hanover [1952J A.C. 436. 461. This full reading is essential in some Acts; in others. like the Local Government Act or the Crimes Act. one needs to read only the relevant part. Yet the whole context is not only the precise section. or individual words. or even the whole Act. It is only a part of the whole area of interpretation of that part of the law.

46 Dicey A. V .. The La\\' of the Constitution (7th ed. 1908) 153-6. 171.


does 'pretty' refer to? The girls or the camp ?47 The context of the single words here is the sentence, and it creates more confusion. To use extrinsic evidence of many kinds mayor may not assist the court, as many cases show. Context assists, but does not convince a judge by itself. Yet a wide context is usually employed in statutory interpretation.

The Pragmatic Test

The Formalist could now try this tack: 'that result would be nonsensical'. But a judge does not always decide only because he thinks 'nonsense' equals 'unjust' . In statutory interpretation we have the three practical tests. The 'Golden Rule' (which is 'odd' to a Formalist) may make a clause less absurd, or more doubtful. So, 'let us apply a pragmatic test'. One sense of 'pragmatic' works well in an ambiguous sentence, as 'I see a shark'. Does the speaker mean an 'animal shark' or a 'loan shark'. The answer depends on what I am looking at - the sea or a known criminal. The Act may be aimed at the public, ora 'technical group', for example, accountants. Meaning still depends on whether the court uses the 'purpose' or the 'plain meaning' approach.48 (The practical reason why Parliament would want to include all groups of workers within the term 'industrial', conflicted with practical convenience.) Each judge can rely partly on his own sense of practical convenience. Each judge can rely partly on his own sense of the social good and 'desirable' purpose.49

Strict 'legalists' reject such alternatives. 'The words themselves are the best guides; they best exhibit Parliament's intention.' To a Non-Formalist the intent of three hundred M.P.s are 'a mere fiction'. Our Act could have defined 'vehicle' as including 'any motor car, motor cycle, tractor, or other vehicle driven by power' .50

That helps, but nevertheless, some 'vehicles' turn up which the draftsman never thought of (such as veterans pushing a cart into the park carrying a statue to a war hero). Would anyone prosecute the veterans? Indeed, the words alone i!llply

47 Moore, op. cit. 183,273-4,281,289. The above-mentioned debate between Hart and Fuller turned on this point (supra n. 20). Pearce D.e., Statutory Interpretation in Australia (2nd ed. 1981) 48-57 tackles this question well.

48 In volume 143 ofthe Commonwealth Law Reports there were 27 'words and phrases', the subject of debate, in 24 judgments. In these decisions there were dissents - at least one- in all but four such differing judgments on the meanings of not very abstruse terms and phrases.

49 Moore, op. cit. 221-8. In one classic case, were 'toffee apples' a species of 'confectionery' for the purposes of purchase tax? The Court of Appeal held that, by the 'ordinary use of the English language', they did not come within 'chocolates, sweets and similar confectionary', including 'drained, glace or crystallized fruits'. They were sweets because, being perishable, fruiterers did not sell them. So the 'ordinary man', knowing this, would not call them 'sweets', although they were really apples dipped in a sugar mixture. None of our other tests have worked here. A sensible result in practice - derived at by 'observation' of the view of the behaviour of purchasers. (Candy Maid Confections Ltd v. Commissioners of Customs and E.tdse [1969J I Ch. 611). See also Andrews J.A, 'Wilfulness, A Lesson in Ambiguity' (1981) I Legal Studies 303.

50 One still has to define 'motor car', 'motor cycle' , 'tractor' in other words that themselves have no certain criteria; they too lack any legal properties, unlike 'terms of art'. What in law is a tractor? When some judges apply the so-called 'literal' meaning, they have accepted the idea that the result must not lead to 'inconvenience' or ·absurdity'.

Words, Words, Words 489

'Yes' . Judges look now increasingly to the purpose. 5 I Parliaments are encouraging them, as new legislation evinces, but they cannot oblige them to do SO.52 The word 'or' was said to mean 'and' in a recent English case by using the purpose as a guide.53 Oddly, sometimes, as we realize, the context makes it more difficult to fix the meaning of one word; it distorts the term from its normal use.54 A score of cases where the word had been examined -like 'possession' , or 'theft' , or 'property' only created confusion when one attempted to combine them in a rule or principle. The law of evidence exhibits similar discord; it is so unsystematic.

'Intension' or 'extension' are easier with technical statutes, where all in a given occupation are aware of its special colour (for example, engineers, physicists, patent attorneys). Is making fish and chips 'manufacture' or 'production' for tax purposes? Dixon J. refused to accept the economist's view of 'production' as 'value added' . It would be, he said, 'odd' to the ordinary purveyor offish and chips (or his customer) to call such a person a 'manufacturer' or a 'producer' .55 Terms of art 'are in a language that only the experts can "translate" easily'.

Choice is inevitable. The Formalist is here lost, even as to a very ordinary word, when these approaches clash, as they did recently in Baker's case in the High Court.56

51 The 'setting' may make some words less ambiguous (e.g. 'entertainment' might mean 'amusing' or 'thinking', as in 'entertaining a thought', or 'permitting' as in 'entertaining a question' at a meeting). Lon Fuller has always denied vigorously that at the beginning of a series of cases the lawyers have a clear purpose and concepts sufficient to solve all future debates. The end, he says, is often out of view 'for centuries may divide the first from the last case in the series. But there is a collaborative articulation of shared purposes - a kind of consensus about many ideas - that will enable all of these purposes to play a part in dealing with every case as it shows up'. (Fuller L., (1958) 3 Natural Law Forum,). He regards the 'setting' as giving colour to the terms within it for the starting point.

52 Acts Interpretation Act 1981 (Cth) s. 15AA. See discussion in (1981) 55 A.L.J. 711-8. Will judges follow this advice? On the New Zealand Act similar words seem to have had little influence on judicial decisions. 'The rules hunt in pairs' is the term used by Paton and Derham, op. cit. 252, on the opposing maxims of statutory construction.

53 This assists them in guessing intelligently at the purpose Parliament did not aim at. One may speak of its 'spirit'. Some judges do not like arguments however, relying on the 'spirit' ofthe Act. Lord Simon of Glaisdale in Stock v. Frank Jones (Tipton)Ltd [1978]1 W.L.R. 231, 237 declared that, as to 'the spirit in the forensic process, StJohn is a better guide than St Paul'. StJohn spoke oftbe 'Logos' in the narrow Greek sense of 'the word'; here, 'the word' meant Christ, whereas St Paul was really concerned with the Force animating the Universe, and not relying, as the Pharisees did, on the 'letterof the law' , but on the 'spirit' of interpretation, which 'gives life'. The result is that a sentence is more than just a 'string of concepts without meaning' except the meaning the speaker chooses to give it.

54 One sceptic queried: 'if a man "brought" a book into Green Park, would a strictly Formalist judge convict him? After all, a book is a "vehicle for thought". An extreme metaphorical example; commonsense may make it obviously irrelevant. Some older terms like 'eavesdropping' and 'embezzlement' are lost in the mists of history. On commonsense, see Maher F.K.H., 'Commonsense in Law' (1972) 8 M.U.L.R. 572. A judge needs to know more than the rules; he must have a broader knowledge of human affairs than are legally relevant. See Berger P. and Luckrnan T., The Social Construction of Reality (1956) 94.

55 F.C.T. v. Rochester(l934) 50 C.L.R. 225, 227. 'It seems to me an odd and inappropriate use of terms to decribe cooked fish as either produced or manufactured' .

56 The High Court by a 4:3 majority overruled its recent decision 0' Reil/y v. Commissioner of State Bank of Victoria (1982) 44 A.L. R. 27 on the scope of 'self-incrimination' by reference to its history: Baker v. Campbell (1983) 57 A.L.J.R. 749. It is now clear that the 'privilege' of not incriminating oneself was never a 'basic principle' of the common law; and it only emerged in the ninetenth century. See Levy L., The Origins of the Fifth Amendment ( 1968). Most experts in evidence dislike the privilege today.


The History of the Term

The Fonnalist next can appeal to the past. Remember that concepts, when first fonned in an historical context, are 'potential' and anticipatory: 'Suppose we call it X'. One gives a novel set of facts a name, but its development will depend on further facts of a similar kind being discovered. We venture into the unknown; time supplies more instances. 'The atom' has quite different properties from what scientists conceived last century. A list of similar things with a simple name, at the start, grows constantly -like 'nervous shock'. That the new things are similar, or different, is clear before they are given a name. They are always related to 'things in the world', as our 'insights' happen to perceive legal difference or likeness according to our view of law and affairs. Its potential comes to be realized more fully by new data, reflection and judgment as to its 'fonn'. This process is discussed fully by the Canadian philosopher Bemard Lonergan in his 'Insight'. The three features - act, infonnation and potency - go together.57

Some jurists realize this truth. They deny vigorously that, at the beginning of any series of cases, the lawmaker had a clear purpose and used concepts sufficient to solve all future debates. The end is often 'out of view'; centuries may divide the first from the last case in the series. Trespass, going back to the tenth century, is an excellent example. Fortunately there is collaborative articulation of shared purposes - a consensus of the 'College of Judges' about many ideas - that enables history to help with each case. They do aim at coherence and consistency.

Historial criteria, then, do not decide. The data are so malleable, so incomplete, that prediction is impossible as to a duty of care. Nonetheless, the history of a doctrine frequently sheds light on its purpose and basis, as in Rylands. Extension and intension have worked together here by using history, both before the decision and since then, as affecting its practical utility.

The Consequences Test

Finally, legalists fall back on another practical test. When a judge is uncertain, he can look to the consequences, or the 'policy of the Act' . Today more judges do talk about policy trends in the cases. If he considers one outcome more efficient, just, or convenient, he is again being subjective (often unconsciously), looking to the 'spirit', and relying on his 'trained intuition'. Courts ought often to look to outcomes. They shy off 'political' or uncertain results, where they have not the resources to estimate long tenn or uncertain effects. If the result is obvious, utterly illogical or dangerous, a fonnal approach can show: 'that cannot be the law'. It cannot, though, declare it must be within the concept. Outcomes alone cannot and ought not compel a decision. Therefore, their use is uncertain and limited, although they can tip the scales in many doubtful disputes where the principles are equally balanced.

57 Wisdom J., Paradox and Discovery ( 1965) 54-5.


SIX

Vague Terms

I have dealt, so far, with fairly simple words in relation to things. I go on to the wider ones and their concrete application. Terms, like 'substantial fairness', are far more difficult to come within any set of 'necessary and sufficient properties'. The Formalist now faces even greater difficulties. I use the same criteria in a few examples. There is no need to go into fuller detail.

The Primary Meaning - the 'Ordinary Man's' View

This approach does not rely on any criteria except' experience'. The assumption is that 'everybody knows it'. One is not defeated only because many terms are wide (for example, 'right', 'power'. 'trust', 'foreseeable'). Constitutional terms often seem ordinary - 'trade', 'taxation', 'free', - but are so wide that interpretation is obscure. Formalists assert that even these have a 'primary' sense (the usual sense), and a 'secondary' (unusual) sense. We know what is 'usual' for lawyers. If we restrict the meaning to the ordinary man's view, we would have a 'clear meaning' for all vague concepts. The trouble. is that without a full study of all the facts relevant to 'things' , words would remain fixed. Courts can confine some constitutional words (like 'adult') by reference to the ordinary man's opinion back in 1900. But as to other 'powers', we are painfully aware that the ordinary man's view, his primary meaning, is ignored (for example, in s. 92). Even if the Formalist extends 'heads of power' in their primary meaning in order to give them a secondary meaning and application to particular facts, he is in trouble. The unusual case still creates controversy.

Some sceptics contend that all language reasoning is impossible, because we have to start with no clear basis below and proceed to an infinite regress at the top. So 'nothing is provable'. But that is a purely formal, unreal suggestion, quite inappropriate for people who have to act and decide. (A computer can only work if words can be coded i.e. put into numbers which represent its language). We accept a meaning onfaith - faith that the top courts know best. Science can only flourish when men are free to have 'faith'. Hence, the lawyer trusts the courts' interpretation of words. If the House of Lords, the Supreme Court, or the High Court have given a meaning to that language, that is the end of it in similar cases. Scientists, too, must usually put faith in the experts. The very uncertainty of language on the periphery of definition, plus its relative certainty in the ordinary case, is the key to a word being both clear and open-ended - according to the situation. An 'invention' is plain enough for most patent claims - they are either inventions or not, but the 'new use of an existing process' leaves open the door for debate and growth.S8 Computers can avoid the ambiguities of language because they use only symbols (I + 0) but it takes great skill to put the instructions into the right code-

58 National Research Development Corporation v. The Commissioner of Patents (1959) 102 C.L.R. 252. The final criterion applied was that of a new use ofthe process.


and the machine cannot have faith. Their task is to obey instructions; they are stupid in themselves. Lawyers can accept reasoning as sufficient to them to act. That is enough. We cannot wait for more time: courts are too busy.

A striking example of this defect of ordinary use is cited by Sir Patrick Browne. The issue was whether a disused hangar was now a 'repository for storing goods' , a rather wide phrase. He comments:

It is a little odd to find Lord Denning and Lord Justice Lawton saying that no one conversant with the English language would dream of calling these hangars a repository when filled with fire pumps or synthetic rubber, and that 'no literate person would say that the use to which the Home Office had put the hangars in the 1950's was ... a repository ... ' and Lord Dilhome declaring, 'I feel compelled to say that to describe the use of the hangars when so filled as a repository, is, in my opinion, a correct use of the English language' .59

The Standard Case

Hart argues that there are some 'standard instances' of many words, in the 'strong sense' that no one would doubt they belong in that category. He admitted these are only examples that give 'no guarantee that any item is an instance of some predicate'.60 A thing may be a standard instance in one context, but not in another. How often have we read in a judgment ofSirOwen Dixon: 'it is one thing to ... It is quite another thing to. . .'

A clerk might be a standard instance of a class dealing with 'non-manual workers' , but his duties might consist of removing objects like heavy boxes from place to place and recording their contents, therefore he is 'manual' only in some sense. Today, manual is meaningless as a separate word -lots of other types of work are manual in that one 'uses one's hands' but it may be to operate a computer. So he is engaged in 'industry'.

A judge's view of the ordinary man is likely to be 'non-ordinary'. How can a labourer know whether, for example, a sum of money ought to be 'income' or 'capital', or what an 'International Convention' implies? Ordinary men are inexpert here, as they are, for example, concerning unusual situations like aboriginal land rights. Do they exist? Why? What follows if they are given certain rights, not like European or legal rights, of ownership? Only judges know the 'correct use' in law as applied to a mass of facts, historical, pragmatic and equitable in operation.

An experience really implies that one has perceived a new relationship between names and things when put together. Judges experiences are 'different'.

Non-Legalistic Factors

The Formalist can claim that a 'cluster' of tests will work, combining several separate tests. However, what criteria define 'religion'? Moore sets out nine

59 See Browne P., 'Judicial Reflections' [1982] Current Legal Pi-oblems I, 15-6; Newbury District Council v. Secretary of State jorthe Environment [ 1981] A. C. 578, 597. Judges' pictures of ordinary men are made up from a certain distance because their education and legal experience is different from that of the man in the street. Paterson (supra. n. 22) was told that, generally, the House of Lords only rarely was influenced by public opinion, as it was in Herrington' s case because clearly the public mood had changed on the duty owed to child trespassers.

60 Moore, op. cit.


possible ones. No one alone is enough, he believes. No religious group has all nine.61 'Scientology' claims now to be a 'religion'. The High Court has decided that it is. It is like asking 'how many hairs must a man have left to be not bald'?, or 'what qualities to be 'clever'?'62 In s. 92 a 'little piece of layman's language', a dispute cannot be resolved by any cluster of tests. 'Mistake' in contract, 'public policy', 'equitable', 'fair', 'judicial power', 'industrial', cannot be explained. They can only be described as courts see them. 'Right' and 'duty' are 'chameleon' , in their variables in practice. Yet clusters often work well, for as I said, two or more proofs are better than one. Add them up and you get a case63 where counsel cited seven or eight examples of the principle never previously fully formulated but latent for centuries. Language changes may be striking. James 11 was said to have praised St. Paul's Cathedral as 'awful', 'amusing' and 'artificial' . All were highly complimentary then. What a shift of meaning in three hundred years! These are 'clusters' of reasons for a decision. 64

No cluster of history, common sense, justice, consequences or context could enable a court to apply ancient terms in legal language today to describe the criteria of new uses (the software of a computer). The 'new wine has to be put into the new bottles'; as Christ pointed out that it is not always desirable. Milson gives us many examples. The giving of a name to a group of instances if done prematurely, can put the precedents in a straight jacket. It was common to abuse the forms of action as unduly formalised - and indeed, in their dying stages, they were so. But lawyers had to find some new categories and so we got, with the text book writers, Addison, Dicey, Anson, for example - a set of new concepts: individual torts, contracts, unjust enrichment, quasi-contract, and in this respect, our position is not very different from that in the early days of the common law.

No writ, no remedy; no remedy, no right, slogans such as these have made the forms of action appear as if they were primary entities in the law with the events playing the part of a law givers' code. But the writs were attached by red tapes to actions which were mainly there at first; and the actions themselves, as their names show, mostly represented elementary legal ideas. It is the names of course, that have caused the trouble. Trespass and covenant became first the names of actions, or at most of very various concepts; and so it became possible to read the report of a discussion five hundred years old as being just about the property of an action when it was really about the analysis of the facts. The nearest modem equivalents would be tort and contract, but these would not be exact, and something must be said of the history of the name as such.65

While the 'cluster' of history, new facts, outcomes, precedent and justice cannot give perfect decisions, we must not be too sceptical. In fact the overwhelming bulk of disputes, at the trial level, depend simply on proving the facts. Even here, facts must be given names. A fact is nothing in itself: only its

61 Moore, op. cit. 62 S. 116 on 'religion' and 'religious' tests. Only a couple of cases have rested on it. Its scope is very

uncertain. Now the High Court has recognised the Church of Scientology as a 'religion'. (See Church of Scientology Inc. v. Woodward (1983) 57 A.L.J.R. 42). Lord Denning once neatly described the duties of a weekly tenant as that of 'doing the little jobs about the place'. An excellent practical description- though nota definition. (Warren v. Keane [1954]1 Q.B. 15,20).

63 Hedley 8yrne & Co. Ltdv. Helier and Partners Ltd [1964] A.C. 465. 64 I have confined my example to ordinary words in long use - problems arise also in new statutes

dealing with novel terms (securities, trade practices, consumer protection, software, bioethics). Even 'dishonest' in the Theft Acts has produced conflicting decisions in England and Victoria. These have no definite legal significance yet; time will make the requisite properties evident one by one.

65 Milson S.C.F., 'Reason in the development of the common law' (1965) 81 Law Quarterly Review 496,500 (emphasis added).


'relation to the idea in a proposition' makes it 'real' or 'typical', even if neither side disputes the relevant rule. The main linguistic debates over wide terms occur more often 'higher up' . Clusters can be seen as threads in a piece of cloth - strong when woven together. Most decisions, finally, are sufficiently correct for practical purposes. We must not exaggerate the divergence of views.

Natural Kind Concepts

It is not enough for a Formalist to assert of wide terms, that one can put them straight into a box because 'everyone knows what they are'. 'This is a gold coin.' Waismann retorts, how do you know that the coin is gold? To trust one's senses is never enough.66 Chemical tests may entirely disprove your senses. It may be gilded lead. Some hidden feature may lead to real doubt of the 'necessary properties'. An atom looks naturally solid, but is not. There is still such a 'thing', but its necessary and sufficient properties have altered as new particles were found. 'Natural kind words', therefore, depend on their components, and these change for various reasons. Natural kind 'acts' may be called 'reasonable' or 'just'. Our view depends on our belie/that the thing has a 'given nature' - and we cannot demonstrate our belief.67

Students of tort will remember the classic disagreement between five members of the House of Lords as to whether 'oiling' railway points was 'repairing' them in Berriman's case. 68 Neither view could be 'proved'. The ambiguous general term was open when one looked at the consequences of not oiling them. The term was not 'natural' enough for precision on those particular facts - points on a railway line. To 'repair' a broken chair or a clock would be easier to decide - nearer to a standard or normal example.

Peter Heffey has rightly lamented the continued use of wide, separate terms which now have no differences of sufficient and necessary properties, here trespass and case . . . 'The general conclusion is that all these distinctions should be abandoned' in the world today, however useful they may once have been.69 The historical content is no longer important for defining such terms of a natural kind whose value as assi~ning differences has disappeared.

Vague words that are also general have even greater defects. As the Privy Council observed about s. 92 of the Constitution:

66 Cited by Moore, op. cit. 204; discussion 204-15. 67 Moore, op. cit. 68 Lord Macmillan, Lord Porter and Lord Simmonds differed from Lord Wright and Lord 10witt in

London and North Eastern Railway Co. v. Berriman [1946] A.C. 278. It is worse when an idea is almost inexpressible, like 'just' , 'substantial' , 'oppression', 'discrimination', 'standing', 'decent'. We never fully grasp anyone else's ideas, any more than any record of Beethoven's Ninth Symphony conveys exactly what Beethoven was trying to tell us, or what God meant, as to a given case, by the general words in the Ten Commandments (kill, steal, covet). No physicist, no statistician, no engineer, no philosopher can reach the full reality, given our human defects as to data and ability to reflect our unconscious bias and imperfect insights. That does not prevent an intelligent understanding of the general pattern of states of affairs to which a name must be given to show the relationships they connect between us and 'things'.

69 Heffey P.G., 'Negligent Infliction of Imprisonment: Actionable "per se" or "cum damno"? (1983) M.U.L.R. 53.


A good craftsman would recognise that the mere generality of the words ('absolutely free') must compel limitation in its interpretation. 70

For example, 'accident' in the Workers' Compensation Acts has been held to include a murder, because it there fitted the pattern of compensable injuries. The Formalist could not 'type' these aberrations into any pattern of words that are of a natural kind. Their use is too 'unnatural' in such cases. This is not to deny that some things are plainly of a natural kind - like a dog, a cat, a mat. Even an injustice, a gross breach of trust, a theft, a contract,a reasonable man, are plain enough, in given situations, with little doubt.

The problems of the very vague terms in the powers given by the Commonwealth Constitution to various person or institutions are well known. Always the court, searching for differences or similarities of situations, discovers that these exist already! We observe them with our senses, and we can name them because they form a class we have already perceived in our minds. The name expresses our idea of the class, and of the differences of the use of names in the relationship within a wide proposition such as 'The Parliament may make laws . . . in respect to taxation' . We know what is meant by 'Parliament', a 'law' and a 'tax' (at least in most cases). Only the 'random charge' or 'levy' will require close investigation, as being not a standard instance as in the Pipeline case.71

A Formalist believes that a judge can give the one right answer in some, if not all, cases. A Non-Formalist denies this certainty. Since, as we saw, both Formalists and Non-Formalists agree at least on one major theorem: that every word needs a 'set of necessary and sufficient conditions' to be correctly defined. Most meanings are 'coded' in our minds by the signs (words, etc.) we humans have made up about the 'thing'. Formalists say that some signs have obvious applications, whereas Non-Formalists deny this, or doubt if there are many, as Moore does, and deny that there are any, as do the Sceptics.

The Dialectical Process

Therefore there is a dialectical movement between the two nouns concerned, in which one is set against the other, and then both are put together into a meaningful theorem. What are the limits of the meanings that lead to a satisfactory

70 lames v. The Commonwealth (1936) 55 C.L.R. 1,55-6. 71 Few cases illustrate the different views that judges may take according to their philosophy better

than the recent Pipelines case. The simple word 'excise' has always been a difficult one but it did appear some years ago, after the Dennis Hotels case, that some agreements had been reached. In the Pipelines case the court showed little agreement about the criteria. Some pointed out that the 'quantity test' was

. useless, because very little might pass through the line in a year. Others thought that irrelevant. Again some thought that the desire to raise revenue was justifiable; others considered that to be not pertinent. Some reference was made to consequences; whereas others refused that test, particularly since it did not seem practical in this situation. No one quite knew the consequences, except that they would represent a serious loss to the Victorian Government. Again this seemed unimportant to the. more legalistic justices, but quite important to those who looked more deeply. Should one look at the intentions of the Founders, or confine oneself to the precedents, or start another analysis in the circumstances so different from the earlier cases?

When the same problem arose, the Court seems to have taken as its main criteria, of a 'tobacco licence fee' , quite different roads and seems to have annulled a good deal of the effect of the Pipelines case - for reasons that are not yet apparent. None of the criteria I have examined here on its own justifies any particular view, as all were used in the past and in the recent cases by different judges in different fashions.


'interaction' between the two terms? What is the pattern they constitute? What confines the 'exchange' of relationships between the subject and the predicate? Only when you decide the limits of each particular name does a thing come within or without the category. Limiting damages for economic loss illustrated one reason - not to ruin a defendant for perhaps a trivial error, a sound theorem - but now limited by other considerations, as in C a/tex. 72

The Defeasible Test Again

Vagueness is less 'open' when the rule plainly does not apply. Defeasibility can show that the facts could fit under one term only, and are 'also excluded from all other contrary terms' ... 'It must be Y. Otherwise the word would have no boundary'. This criterion can be very useful as a starting point. We are back to considering the lawmaker's intention - his message.

The boundary fixing of s. 92 is now somewhat clearer only after scores of cases: some movements are clearly outside 'interstate'. Within the limits, the position remains unclear. That negative test only gets us half way to grasping what is within. Will 'new facts be classed as 'inside' or 'outside'? It is again differences within the type that the court is seeking to determine. Here the facts are vital. We know better what is not an interstate journey, so that part of the law is now fairly clear. The use of intension has told us what is outside' absolutely free': that is a real gain, if not a full answer. We are closer to the intention.73

SEVEN

Possible Answers - Dworkin

I need not go further into the defects of Formalism. Readers can supply numerous examples for themselves of the 'hard case', hard to identify because of the 'dialectical pull' .74

This last question is pragmatic. Is there any practical technique for 'conceptualising' more accurately? Where is there a conflict between wide principles including concepts?75

72 Ca/tex Oil (Australia) v. The Dredge 'Willemstad' (1976) 136 C.L.R. 529. 73 Moore, op. cit. 209. Most legal words are used with a deliberate 'intention'. Lawyers do not

speak without having some legal objective in mind- to command, advise, decide, deny. Purpose, past or present, largely governs the idea in the sentence, whatever meaning they give to single terms. Lawyers aim to decide the effect of a relationship - they name the facts, or persons, or objects, according to the desirable consequence they want to achieve.

74 Readers will have encountered many such examples. However, one odd case I cannot omit ... the taxpayer gave up £2 a week of his salary for the use of a car. Could he deduct this from his 'income' . Was it a 'perquisite'? The case produced a mountain of disagreement. Four tribunals examined the dispute. The Tax Inspector said 'Yes'. The Special Commissioners said 'No'. The Court of Appeal said 'No'. The House of Lords said 'Yes' (Heaton v. Bell [1970] A.C. 728), but only by a majority ofthree to two.

75 For example, there are conflicting thoughts, not contradictory, in principles in disputes where a court has to decide between an idea that a man must not profit from his own wrong and the plain terms of a statute or contract where the effect would be to allow him to do so. In the Beresford case the testator had committed suicide after the period fixed by the contract. The insurance company refused to pay because, it asserted, it was an illegal contract. The executor put up the principle that the company was bound to fulfil the promise to pay on the death of the insured. The House of Lords decided between competing principles by considerations of public policy - the effect on the community: Beresford v. Roya/Insurance Co. [1938] A.C. 586 (suicide was then a crime).


The latest Fonnalist theory is to steadily 'raise the level of abstraction' - and thus clear up a doubt by 'taking the issue higher up'. This is Dworkin's solution. Words in a rule may be uncertain but if you go up to the principles behind the rule, vagueness may disappear. A 'wrong' is cleared up when you go up to the principle that a 'man may not profit from his own wrong'. Principles have more abstract 'properties': they set out the idea that 'shapes the words in the rule'. Thus to murder one's testator is plainly a wrong. If the principles still 'compete', as where a legatee who murders his testator benefits under the Act, the court' goes deep into

. the aims of the society' to reconcile the opposing principles and their concepts. This is even more abstract, but the better result becomes more evident. This is Dworkin's technique: to show that there is 'one right answer' to any important debate.76

There is real value in Dworkin's technique; courts often use it when principles are opposed. His critics retort that judges often disagree even about aims and values. In practice no one can be sure the judge will find the 'one right answer'. Values are usually agreed on in 'core matters', but on the periphery there are always differences of value judgments about the more desirable social values already in the law. The judge can only choose what seems to him the 'true' aim as established by precedent. Yet Dworkin' s method is sound, even though in practice it does not give perfect answers. In Beresford the result was unjust, although the HouSe of Lords was unanimous in its view of the better social result.

Absolute ideas and explanations

I make one important caveat here. Some vital conepts are 'absolute', as in '.truth', 'justice', 'God', 'person', 'right', 'duty', 'wrong', 'beauty'. These defy precise definition or description.77 The same goes for 'civilisation'. If you ask the onfinary citizen whether he believes in these ideas, he will say 'of course'. But asked to explain, he can only mumble about, for example civilisation: 'hospitals, police, trams, governments, a fair trial, telephones, music,' a list of things he sees and likes. Yet he does know the difference between mature and a primitive society 'in his bones' .

Dialectical Meaning and Dynamic Use

The more profound the idea embodied in an absolute symbol, the more elusive is any expression of it. It does mean something to us, though we may quarrel as to whether a specific aspect is included. The dialectic process in the court usually ends in some clarity.

76 First raised in 'Taking Rights Seriously'. Dworkin cited Riggs v. Palmer (1889) 115 N. Y. 506; 22 N.E. 118, where the inheritor murdered his testator. He was refused the benefit, despite his contention that the Act said the property passed to him. Dworkin has been attacked on all sides. I shall not enter this debate. There is a full discussion in (1977) 11 Georgia Law Review 455 passim.

77 The attempt of Hohfeld (Hohfeld W., Fundamental Conceptions Applied in Judicial Reasoning (1913» to 'fix' them still creates a vast controversy after fifty years! See Maher F.K.H., 'The Kinds of Legal Rights' (1965) 5 M.U.L.R. 47; Haynes D.N., 'The Language and Logic of Law' (1981) University of Miami Law Review 184,246. Understanding is not improved by the habit of some lawyers of using 'eight words to say what could be expressed in two' (David R.e., Plain English/or Lawyers). Most men could not understand lawyers' terminology. (One example I remember is where a draft read 'shall do his best ... ' and it was amended to 'shall use his best endeavours ... ').


Although such ideas defy description one must go on to find some 'pattern of affairs'. Without such 'patterns' one might as well give up the search for meanings. 'Justice' is indefinable but necessary. When these basic concepts come to be applied to concrete cases, there will be debate; but that does not affect their dynamic force. The judge swears 'to do justice according to law'. 'The law' moves on: though it is still 'the law'. 'Standard instances' are frequently obvious. Ordinary words gain a legal colour according to the way we lawyers have been brought up. We fight about some: 'how can you insist that X is Y?' ... 'I certainly wouldn't call it Y.' ... 'I have always been told that Z means so and so' ... 'Ridiculous, where were you educated?' ... Some abstract terms like 'equality', or 'justice', or 'democracy', can be 'distorted' by the values of a group, a class, or a society which gives them a 'twist'. (The Nazis called themselves 'National Socialists' - Marx must have turned over at Highgate!) There is an obvious gap between their general 'meaning' and particular 'use'. In tort, 'conversion' does not mean becoming a Moslem or a Jehovah's Witness; negligence does not simply imply carelessness; 'false imprisonment' is not false; 'forgery' may include an omission in a document. The ordinary man might not see these fine criteria, which are beneficent distortions for us. Yet some instances are obvious to both layman and lawyer.78

'Metaphors' may, or may not, increase clarity of a concept. Many legal terms being taken from ordinary language, are given a legal metaphorical twist - like 'declaration', 'nuisance', 'false imprisonment', 'meeting of minds' . We speak of people being 'invited' on to the land, (metaphorically, 'come if you like', not like an invitation to dinner). These do light up a term vividly. Metaphorical words, however, can be dangerous. The judge may have to describe them in other words, remembering that one can express the same thought in quite different names, including metaphorical ones.

Francis Dawson pointed out how, as to contracts, judges speak of 'blowing hot and cold', of breaches 'going to the root of the contract', of being 'things writ in water', and of parties 'bringing contracts to an end'. He sees that metaphors convey complicated ideas in a format all can understand: 'they provide quick, clean and sharp images'. One defect is that they are only shortcuts. We 'begin to believe that the solution to a given problem is to be found in a metaphor' and forget the ideas underlying the term. They help expression, but at root 'dissolve the

78 An example of relying on the man in the street appears in a case dealing with the question of whether a person was a servant or independent contractor. In Stevenson Jordan and Harrison Ltd. v. McDonald and Evans [1952) I T.L.R. 10 I. III Denning L.J. said (referring to Cassidy v. Ministry of Health [1951J 2 K.B. 343): 'Lord Justice Somervell went on to say: "One perhaps cannot get much beyond this: 'was the contract a contract of service within the meaning which an ordinary person would give to these words?' .. I respectfully agree. As my Lord has said, it is almost impossible to give a precise definition of the distinction. It is often easy to recognise a contract of service when you see it, but difficult to say wherein the difference lies. A ship's master, a chauffeur and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi man, and a newspaper contributor are employed under a contract for services'. These examples are those any layman would accept and grasp with ease. These are observational cntena, almost pointer tests, not natural classes.


ideas' and make solutions more difficult. Cardozo J. saw, too, that metaphors can be dangerous.79

Hart often used 'games metaphors' . so In cricket' out' has a technical twist in that game. The batsman must leave the wicket. Cricket metaphors are often 'abbreviations'; he may be caught, bowled, stumped, run out. In all these cases he is out. These Hart calls 'similar fact situations' . In football a 'goal' is not a goal in 'social' terms. Very wide or common concepts thus have a significance that lawyers can easily discern better with the help of metaphors used in their own' game' . It is the 'rules of the legal game' that decide the use. In law, Authority, like the judges' opinion, decides whether a defect goes 'to the root' of the contract. It is still only one man's view (or the view of five men, perhaps with two dissenting about the metaphor). Yet once so held, it provides a solid major premise for our logic in future cases where facts are not different.

'Ordinary lawyers use' often tells us how a term is to be applied. Legal language has no 'necessary structure'; it is shaped 'within the system'. Lawyers trained in the same discipline agree more easily than non-lawyers could. Cases in which a term has been described, defined or applied, by previous courts, are decisive in the normal case. It is the random one which this previous formula fails to decide. Here description by example is one way of driving home the idea behind the names in the formula or definition. Analogy is also useful, but mainly to develop a concept.SI

Many legal terms, however, do not have a straightforward connection with facts. 'Duty' does not define, or even describe, a particular obligation. It is an

79 Dawson F., 'Metaphors and Anticipatory Breach of Contract' (1981):40 Cambridge Law Journal ~. ' Megarry reminds us of this fact: 'It was also Cardozo J. who in another case observed that "Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it". ' (Me,ll;arry Second, op. cit. 25.)

S(fHart H.L.A., The Concept of Law (1961); see index under 'Games'. There will always be, with vague words, especially in constitutional law, a certain urge to avoid unhappy results. Colin Howard (see Howard C., Australia's Constitution (1978) 56-7) is correct in his assessmentofs. 114, where one view of the concept of Commonwealth-State relations would have destroyed the 'customs and excise' power of the Commonwealth: 'by various subtleties of legal argument the High Court overcame the difficulty of deciding' , in effect, that this part of s. 114 could not be allowed to mean what it said. Is this a pardonable evasion of a concept because it carried out what the framers would have meant if it had occurred to them? In the 'legal game' some judges want everything to be classified as black and white, admitted Sir Roger Orrnrod: 'but human behaviour ... resists this kind of classification' (Orrnrod R., Address to the Holdsworth Club (1980) 186). Where classification goes wrong is where the court has not set out the criteria it used, systematically examined the 'properties' we have looked at and applied them to the 'thing' in question. The rules of any game are fluid.

SI It is important to recall a point that is often overlooked: that argument by analogy is not the same as argument by example. Lawyers, in trying to persuade a court, habitually use examples. 'This is like an X or unlike a y'. Examples are often highly forceful in showing what a concept includes or could include. Argument by analogy occurs when counsel want to extend (or omit) the scope of a rule or a term to a new case where the facts are somewhat different. Again they argue about sameness or difference, but with a view to giving the concept a fuller application (or a narrower one) by review of the new (or different) facts.

Haynes has showed that, despite the common view, analogy is little used. Counsel usually try to show that a concept applies to the previous cases: examples are here effective. Only when the law is being developed does one use analogy to stretch the meaning or application.

Haynes D. N., 'The Language and Logic of Law: A Case Study' , ( 1981) 35 University of Miami Law Review 184,246,299; Murray J.R., 'The Role of Analogy in Legal Reasoning', (1982) 29 University of California, Los Angeles, Law Review 833; SirOwen Dixon, 'Concerning Judicial Method' in Jesting Pi/ate (1956) 152-65. stressed example and analogy as valuable methods of the growth of the law.


abstraction. So it is 'right'. 'Malice' means one thing in murder, another in defamation, another in malicious prosecution. All terms, even narrow ones, are 'open-ended' and therefore 'defeasible'. A lawyer can pretty safely state a 'company' does not extend to a partnership, because courts have said so. Yet the House of Lords has said that the directors of a company had to treat one another as if they were 'partners', when there was unconscionable behaviour.82 Courts tend to play safe with ambivalence. Previous rulings provide general conditions which guide the lawyer. 'Guidance' works fairly satisfactorily for 'stock examples', 'paradigms', 'standard cases'. Nonetheless it fails to provide certainty where two possible names can be found. 'Obtaining property by deception' in the Theft Acts has created grave differences of view. 'Precedents are only starting places and not stopping places', was in Lord Macmillan's summary. Metaphors are only metaphors. They are like analogies; and analogies never prove anything, useful as they are to mark the issue clearly.

Are There any Standard Instances?

One cannot, always, rely entirely on 'game meanings'. Hart's considered view has been that there are some facts which do plainly come within the 'core' of a term, that even vague concepts have a core where some 'normal' or 'standard instances' arise, where no doubts arise. Hart is probably correct because, as he says, 'otherwise' people obviously would never be able to communicate together, yet they do, even if not with full understanding sometimes. There is little trouble about seeing a standard instance of simple things. Rarely would a mother who sees her child mutilated or killed not suffer a nervous shock. Moore has to admit there are standard instances, but says they are very few. The most Hart can show, he objects, is that they exist in some cases. One cannot forecast how far a later court will extend it. 'Strong standard instances', would require the Formalist to show that his specific example is so· precise that the term without it would have no meaning at all. 83 Its 'necessary and sufficient properties' may come close to the total. But constantly there arise 'strange' things or events which are disputable. The Reports are full of them in the upper courts. Judges even have to use discretion in admitting evidence in trials where they are doubtful as to whether using them would be irrelevant or unfair to one party.

In my view, Moore's gloomy conclusion goes too far. Many formalists do not accept his doubts that there are almost no normal examples that can give the degree of certainty that would enable the judge to reach the one right answer. Admittedly, few instances are absolute, but to say that no word, no class, (natural kind, analytical, vague), 'has a set of conditions that are necessary and sufficient for its exact application' is simply not valid in the daily business of the courts. Moore is on the right line generally in his anti-Formalist analysis; but he carries his argument too far in a world where one has to get along without being able to

82 Ebrehimi v. Westbourne Galleries [1973] A.C. 360, 379. 83 Moore, op. cit. 200. He concludes there are no standard instances, even on Hart's theory - only

some that a judge may consider are very close. Moore, op. cit. 271-90.


demonstrate that any case is certainly within the 'core'. If the Fonnalists have failed in their analysis; Moore, too, takes his objections to extremes for practical everyday occurrences. Probability of being right is all one can ask of our limited intellects - approximating closer to the truth as our insights grow higher and our integration of abstract ideas becomes more accurate.

We can agree with Moore's rather pessimistic view that it is extremely hard to tell where the penumbra starts and finishes in this Age of Discontinuity, where all aspects of life are so very different from those before World War 1.84 Physical scientists now admit they can do no better with their inductions and symbols. Medawar, and others stress that the greatest gifts are Imagination and Intuition,85 even for the most strict scientist.

Logic o/various kinds

No one fully trusts Inductive logic; for it involves 'leaping' to a general (universal) proposition from a number of instances (decisions). Blackburn 1.'s formula in Rylands 86 is an obvious example. Induction is most useful- it makes a larger pattern from which to discuss a whole area. But it does involve a 'jump in the dark' from the top of a 'logical ladder' to a higher platform - and one may not land in the right place. Any general proposition may be too wide and need revision. The differences of fact make any description only one way, using examples, of seeing reality. Others are also possible, according to other persons' views of the patterns of things.

Yet, this should not make us too sceptical. Such generalisations only need not contradict the rules. The specific examples will test the fonnula, as Gottlieb has shown. s7 We may never reach the full truth - but we can approximate closer and closer to it. Sir Patrick Browne puts it well:

To seek a complete logical definition of the general principle is probably to go beyond the functions of a Judge, for the more general the definition, the more like it is to omit essentials or to introduce non-essentials88 (One does not know its extension or intention until later on).

However, common sense and insight and experience enable a court to perceive the essential features.

Despite its lack of complete certainty, such abstract statements simplify our communication: 'Equity looks to the content and not only to the fonn', or 'ajury's verdict to acquit is a complete defence to a further charge on the same issue'. The 'reality' is asserted authoritatively by a higher court without need of further examination by either side in a later dispute. In any event counsel hardly need to

84 The features of the Age of Discontinuity have been set out by Jones B., Sleepers, Wake (1982> and in several books by the Austrian sociologist and business expert Peter Drucker: the growth of tertiary industries, mass unemployment, the decay of the family, the growth of use of new technology at vast speeds, new types of property and great changes in community attitudes to work.

85 Sir Peter Medawar, Advice To a Young Scientist (1979). 86 Rylands v. Fletcher [1861-1873] All E.R. Rep. I. 87 Gottlieb G., The Logic of Choice (1968) 172-3 is correct in putting his faith in a 'combination of

rules, policies, expert opinions, principles and consequences, a cluster of factors'. 88 Sir Patrick Browne op. cit. 16 (emphasis added).


tell a judge in court that 'a contract requires offer and acceptance'. He.can get on quickly to the issue at stake: did defendant's actions constitute an acceptance? This is what the scientist-philosopher Polanyi described as 'tacit knowledge' taken for granted by all concerned, and applied to facts usual or unusual, standard or random with varying degrees of accuracy. For convenience, lawyers accept the judicial decision as a sufficient guide to argue by analogy.

EIGHT

CONCLUSIONS

The Techniques of Probability

Moore's objections cause us to ask, 'If he is correct, how on earth does the legal system work at all, though it obviously does so reasonably well?' The answer is that probability is enough for the law. The literal approach may give as much justice as the purpose approach in some unusual situations89 on a probability test of the accuracy of a definition or a sentence. Moore is no sceptic: he is only pointing out that no Formalist or positive arguments produce completely scientific right answers.

There are techniques that enable courts to analyse words with sufficient precision in most disputes, especially where the rule is itself very simple and brief and the words not too vague or ambiguous (and remember that 'ambiguity' itself is ambiguous!) In what sense?

Discretions in Statutory Construction

This inability to name things precisely is valuable, since the random corresponds to a 'mutation' in biology. It invites and permits growth and adaptability to a change in the social environment.

Judges, are able to use more latitude in construing legislation than they readily admit. They proclaim that 'our only task is to ascertain the intention of Parliament'. One forgets the width of choice open (at least to the higher courts). Lord Wilberforce expressed the variety of 'evasive techniques' when he spoke recently about the discretions exercised by the House of Lords as to protecting basic liberties by indirect means even where Parliament appears to be invading them:

I do not believe that they have anything to fear. After all judges have been able to stand up for these values over the years in the face of sometimes most explicit statutory language: think ofthe way in which they have been able to round language - tighter and tighter language - saying that such and such action may not be challenged in any court, or is to be final or conclusive. Think how they have worked and sharpened the old prerogative writs, which we now call 'judicial review', to preserve liberty and other fundamental rights. Think how by the use ofthe word 'absurdity' which appears in the 'golden rule' they have been able, with what are ... frankly subjective views as to policy, to get round, or out of, the legislator'S 'clear' language ... There will always, let us frankly recognise, be a kind of tension - a healthy tension - between Parliament and the judges, between

89 An excellent use of the literal approach, which provided ajust solution to the problem of a driver going through a red tratfic light in unusual circumstances, is seen in the judgment of McInemey J. in Turner v. Ciaparra [1969J V.R. 851.


refonnist Parliaments and 'conservative' judges who will resist encroachments on the common law on what are thought to be great principles, and between conservative Parliaments and 'progressive' judges, who are not averse to a little quiet legislation under the guise of literal interpretation.90

Lord Devlin, Lord Reid, and Lord Scannan have often spoken in similar terms. Consequences often affect the decision and judges may choose between desirable and undesirable results. The High Court had, until recently, tended to ignore outcomes but now that silence is disappearing - the legalism of the early days is vanishing.91

Discretion in Common Law

Nineteenth century judges tried to deny or conceal their discretionary powers. There are so many novel, hard, unprecedented cases, in this age of discontinuity and centralised Government that judges, at least in the higher courts, had to admit they have much more leeway. All of us realize in practice that law is getting more and more uncertain. Lawyers are forced by this fact to specialize in one or two areas to have any chance to keep pace with the deluge of strange disputes. 'Hard cases' have multiplied because so often (a) there is no direct binding authority, (b) there are two persuasive, equal, opposed decisions, (c) a fact oughtto be classified in another 'box'. Cases of 'flrst impression' are far more frequent. Sir Roger Ormrod has expressed his conviction that the use of discretionary powers has increased 'to an astonishing extent' 92.

Choice gives the courts leeway within which the judicial pilot can steer a course which gives room to manoeuvre: a combination of statutes, precedents, reasons, common sense - that cluster of features of a state of affairs constantly 'on the move'.

'Pointing' has Some Value - Observation Test

Accuracy, by simply seeing the thing as it appears to our eyes as needing no proof, works, we saw, for simple objects. The pointer method: 'I know one when I see it', gives no exact conclusion but is often pretty strong. It cannot provide any sure scientific demonstration for abstract concepts. One can teach a child to know an orange by pointing at a number of oranges. The pointer idea does work in obvious situations to a high degree. Take 'the intent to cause grievous bodily harm'. If you break a man's leg deliberately you have plainly caused grievous

90 Lord W ilberforce, 'The Use of Extrinsic Aids to Statutory Interpretation' , Address to the Judicial Conference, February 1983,5-6.

91 The Engineers case was a classic example of a court ignoring the obvious effects on our system, well knowing its consequences: Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (1920) 28 C.L.R. 129. It was this case that 'cut oil' Australian constitutional law from American precedents . . . in favour of the crabbed rules of statutory interpretation which are one of the sorriest features of English law and are ... particularly unsuited to the interpretation of a rigid constitution': 'The Law and the Commonwealth' (1937), cited in Evans G., 'The Most Dangerous Branch' in Hambly D. and Goldring J. (eds), Australian Lawyers and Social Change (1976) 13,38. Sir Owen Dixon did his best to cut down its legal effect.

92 Onnrod, op. cit. The judge always has discretion as to the better view. See, for many illustrations about puzzling, paradoxical examples, even in mathematics, Hofstadter D., Godel. Escher. Bach. an Eternal Golden Braid (1979).


harm. It is not so clear if you are asking what is unconscionable. Mr. Justice Stewart had to confess of 'obscenity' in an American case 'I cannot tell you what it is, but I know it when 1 see it.' ... A blunt weapon, but often the only one available for very vague tenns - unfair, unreasonable, denial of natural justice, or of free speech .... 'If it is not that, then no one knows what it is'.

The Judge's lnsights

Words, despite some critics, are not incompatible with, or hostile to, deeds. There is some judicial 'evasion' of an issue by changing the interpretation while concealing that one is doing so. It is nonnal that judges should disagree. Alan Paterson shows that some judges are 'Refonners'; some are 'Black Letter lawyers', some are mild 'Innovators'; Paterson brings out this diversity, after his elaborate study of judges, but adds that no judge holds an extremist view of his role. The trend in the last decade is indeed to openly 'innovate' on some issues. The judges he spoke with admit that they differ on the aims of a doctrine, and the techniques, but on the whole do constitute a College (or an Anny marching in step). Legal metaphors are common and facilitate discussion.

His conclusion is apt, not only showing the new readiness to change course to avoid rocks by discretion, but also to take a more flexible view of concepts. The claim on the back cover of his very valuable work is correct:

Paterson argues that decision-making in the House of Lords should be seen not as five judges working independently of one another, but as a collective process involving interchanges between counsel and Law Lords, and between the Law Lords themselves.93

As to the High Court, Professor Blackshield, after a protracted careful study of recent decisions of the Court, drew up a table summarising injurimetric tenns, the degree of its members' 'legalism'. His conclusions are (a) no Judge is more than 'half a legalist', and (b) the spectrum of attitudes over three main areas, shows a minimal difference between individual justices. 94

The result is that the many 'non-standard instances' give a new richness and flexibility to the system. Ultimately the judge's unconscious 'philosophy' , (even if he does not know he has a philosophy, or tries to suppress it), is the decisive fact. His insight of desirable consequences will generally 'fill the gap'. He cannot, after his long experience, fail to have a pretty accurate pattern intuitive (not emotional) of relationships in his mind - have a truer view about law than any other person in the system as it heads towards development. He remains human and is no computer. Insights govern his 'dynamic knowing' - improving with time -leading to higher and higher insights as time goes on. It was Holmes J. who declared 'I care nothing for the systems, only for the insights.' They increase the probability that, at least, no one could do any better. 95 We can grasp meanings because we have a 'common memory' of a sound pattern of legality.

93 Paterson, op. cit. after a series of talks with active Law Lords today. 94 Blackshield A., 'X, Y, Z Scales in the High Court of Australia (1972-6)' in Tomasic R., (ed.)

Understanding Lawyers (1978) 133-77. 95 For a very thorough account of insight see Lonergan B. , Insight (1958).


Insights - The Technological Freeze

Insights include qualities that are purely human such as compassion, desirable human goals, honesty, intuitions based on cultural traditions. One appalling new peril is that the technocrats are trying to fix' concepts' at a non-human level of what the computer can be instructed to employ as an instrument for deciding' desirable' goals and ideals. Many Americans are hoping to make computers 'artificially intelligent', so that they alone could solve our major political, social and philosophical problems. That means, of course, that the programmer imposes his own view of what is desirable and scientific. He needs ironclad terms that will not vary - as with the behaviourists - yet his personal bias can affect his programming.

Wisdom is ignored or deprecated - as are our ideas of the 'just', the 'decent', the 'good' by those who regard human beings as highly complex machines. Donoghue would not have been decided as it was by such mechanical reason: it included our old ideas of concern for 'neighbours' and common sense. There is nevertheless a mania in some quarters for the rigid concept, the rigid linear thinking process, the abolition of paradoxes and the random. One expert on computers, Joseph Weisenbaum, vigorously assails this 'scientific arrogance'. He cites the sensible response of a wise English commentator of the perils of ignoring value insights. Lawyers must be aware of computerized law in this respect, of the concepts and language and subtle reasoning which are in danger of being destroyed for the convenience of computer planners acting on their own materialist ideas of good and bad. 96

Concepts have been reduced to summaries of the characteristics that several specimens have in common. By denoting similarity, concepts eliminate the bother of enumerating qualities and thus serve better to organize the material of know~ ledge. They are thought of as mere abbreviations of the items to which they refer . . Any use transcending auxiliary, technical summarization of factual data has been eliminated as a last trace of superstition. Concepts have become "streamlined"; rationalized, labor-saving devices ... thinking itself [has] been reduced to the level of industrial processes. . . in short, made part and parcel of production. '97

Such a grim picture of humanity would destroy choices and adaptation and variety of interpretations.

'Moral' VVords Allow More Leeways in Defining VVhat was atfirst 'Anticipatory'

The courts have even more leeway with 'moral' words: fair, equitable, unsconscionable, prudent, rational.n Today, Paterson thinks they now prefer more justice to less certainty. Unpredictability is more confessed in our PostIndustrial Age. The courts 'keep up' the standards even if they lag a little behind

96 Weizenbaum 1 .• Computer Power and Human Reasoning (1976) especially chapter 6. 97 Weizenbaum, op. cit. 249. 98 Paterson, op. cit. chapter 6.


(wisely) in their application to changing facts in spite often of utterly confusing language. 99 Common sense takes one a long way very often.

'Moral' words usually bear some relation to the ordinary man's picture of what is 'good' or 'bad', a fact our judges cannot ignore for Computer Reasoning. Not often does a philosopher, using them in a completely sceptical distorted way, as Nietzschke did, as he lost faith in Truth and Men:

What is the meaning of 'good'? All that enlarges the sense of power in a man, the will of power, and power itself. What is the meaning of 'bad"?-Whatever is rooted in weakness. Let the weak and the failures perish. What is more harmful than any vice? Active pity for the people and the underdog, in fact, Christianity. 1

Such Nihilism is rare among lawyers. We can all understand 'good', 'justice' and so on, as general ideas. A computer could not understand ideas, or indeed any human patterns, or give names or compose names until it has been 'programmed' to recognize them. Moral values would defeat the rule, as often happens. 2

Oral Debate Three practical features are most useful. (i) No proposition is made 'visible' by

looking only at the words: the mind seeks the idea implicit in them. (ii) Oral debate simplifies most misunderstandings of ideas. 'Do you mean P when you say Q?' ... 'No, your Honour, I mean P2'. 'Oh, that simplifies things' , , . 'Would you include X in Y"? . , . 'Yes, because' .. , 'That is the key issue' ... 'Are you arguing that his word has the same meaning in contract as in this criminal case"? . , , 'Yes, because' .. , (iii) We do not use syllogistic, linear reason, like a computer does. An American jurist reminds us that:

the problems lawyers encounter are not in the main resolvable by formal reasoning, we must reach our solutions by argumentation ... persuasion by discourse. 3

99 It takes time to decide the 'properties' important in a random case. A trading corporation has been applied to a football club, a superannuation board and (perhaps) to a State Electricity Board. The future course is still not laid out by these few examples. 'Trade' is too vague a term to be of a natural kind, an analytical kind, an observational kind, a pointer kind. Nor can one always tell what is not a trading business, e.g. football normally is not. Templeman J. described the 'revenue-capital' confusion as 'an intellectual minefield in which the principles are elusive ... analogies are treacherous ... precedents appear to be vague signposts pointing in different directions ..... (Tucker v. Granada Motonvay Services Ltd. ll977j I W.L.R. 1411, 1412). See also note in (1980) 96 Law Quarterly Review 351.

1 Cited in Mauriac F., The Kissfor the Leper ( 1968) 6. Some 'liberals' expound the view that ours is a highly 'permissive age'. Except in matters of sex, this is quite untrue: few societies have been as . unfree , as ours. Law controls every activity of our conduct, and what is 'good' usually has some relationship to common sense, decency, respect for others. These rules are accepted even unwillingly because they are 'good' as being convenient, necessary or useful in practice.

2 The High Court has now discarded two strong Privy Council decisions about a contract not being fulfilled in time - 'time being of the essence' in the document. The purchaser mistakenly relied on a rather vague statement of the secretary to the vendor's solicitorthat a slight delay in payment would not prevent the contract being observed by the vendor. The purchaser, in possession, offered payment a week later. The vendor then refused to accept it, rescinded the contract and demanded the return of the land. The court unanimously agreed that the contract was breached, but refused to allow the vendor to forfeit the land and thus keep the house which the purchaser had erected on it. It would have been gravely 'unjust' - despite some equity doctrines in the past. Consequently 'time' did not change the meaning lawyers give it, but when applying the principle to the later, and different, facts the Court employed the layman's idea of 'fair dealing'to what the non-lawyer, ifhe had been appointed to decide that dispute, or a jury, would have regarded as immoral. Thus one 'property' of the breach of that contract was that its enforcement must not lead to unfair confiscation, a 'windfall' the vendor did not deserve. See Legione v. Hateley (1983) 57 A.L.J.R. 292.

3 Schauer F., 'An Essay on Constitutional Language' (1982) 29 University of California. Los Angeles. Law Review 797, 821 stresses the leeways in broad terms in constitutional provisions e.g. 'free speech', which has caused such dissension in the United States courts. As to the degree of width given, no one criterion satisfies every judge. See Weeramantry e.G, 'The Loom of Language . (1971) 2 The Journal ofCeylon Law 14, 15.


There is no scientific method of absolute proof but one can try to 'persuade' the judge, if not compel him. That is enough for the law - the more probable use. The Belgian jurist Chaim Perelman, has built up a considerable literature on the ways in which 'rhetoric', persuasive reasons combined, do affect tribunals now as they did in Ancient Greece, Rome and the Middle Ages.

The fact is that 'meaning' is mainly 'use', as Wittgenstein and Hart said. Our whole tradition reminds us, too, that the oral system in trials 'involves not only what is said, but how it is said' - inflection, gestures, examples discussed at length in court, are often more convincing than cold formal deduction and precedents which often conflict. They also solve the difficulty I mentioned at the start of the laymen's and lawyers' language, that we rarely use the syllogistic terms as such but many kinds of reasoning and cluster proofs. There are obvious examples of quite simple conditions from facts.4 Logic of a formal kind is now seen as inadequate though useful as 'feed back'.5

The Lawyers' Universe

We do manage to convey our thoughts to other lawyers, because we talk together a great deal; agree on an adequate picture of one another's thoughts and language. 6 Otherwise 'law' would have collapse~. In many puzzling cases, since we cannot talk with the 'original word-user' (he is dead), we must be satisfied with arriving at sufficient probability that we understand him. Judges will differ on 'odd' cases. Relatively, there are few 'hopelessly intractable' cases, though they are relatively increasing. We lawyers live in the same 'universe of discourse' at University, in our offices and in courts. That enables lawyers to shun purely emotive or loose terminology.

Oral debate is by far the most useful nexus of persuasion. In the view of the Law Lords and leading counsel, interviewed by Paterson, they freely admitted they had often changed their first opinions after listening to the full exchange of arguments. The same shared 'tacit knowledge' enables such easy exchanges.

This sharp dialogical examination of words and phrases is critical in statutory construction, cases on which now make up about ninety per cent of the total heard in the highest tribunals.

4 Aquinas, in the thirteenth century, showed the deficiency of mere deduction, except for limited theoretical purposes. It was possible, he thought, to make some accurate theoretical statements about first principles; but principles led to precepts and precepts led to rules, and rules had to be applied to decisions. The further down one went the less certainty one could have, owing to ignorance or unconscious bias or lack of retlection. See also Lonergan, op. cit. Julius Stone is excellent (Legal System and Lawyers' Reasoning (1964) Chapter 8).

5 Fuller, op. cit. 275, cited by Moore, op. cit. 275-88, who also stresses that after there has been sufficient debate in court, very few would doubt that some facts or persons do form a standard instance (breaking a man's leg is clearly doing him 'grievous bodily harm'). Many other facts will not fit into the properties e.g. to give him a hard push which fractures his nose.

6 Linguists today emphasise how our brains are already somewhat 'programmed to recognise the specific meaning of a term within the same discipline' . Lawyers readily appreciate what other lawyers mean. A physicist would not describe 'motion' as do lawyers. He has grown up in the world offellow physicists who speak the same 'dialect'. Here we have another kind of 'contextual significance, as a force in adapting the law to new conditions' (Dixon, op. cit. 152-65). We all know that analogies never prove anything; they are 'guides' at best for reflection. Are then facts 'too different', 'too remote '? The answer must often be one based on a personal view of life and men, not any 'rule' that is measurable.


Ambiguit}, as a Means ofProgess

Ambiguity, uncertainty, certainly are rife. We can go a long way with the Non-Formalists - we can rarely be without doubts either as to whether a pattern exists, and if so, what facts are related to it in law. Yet this very openness, or peripheral frontiers, is the springboard for jumping fonvard. It was a fine, intelligent modem judge who observed about contracts of employment:

the common law has often ... thrived on ambiguity and it would be mistaken, even if it were possible, to try to crystallise the rules of this, or any, aspect ofpublic policy into neat propositions. 7

Lord Reid has often stressed the common man as the measure, as has Milsom, the eminent historian. Therefore, although Moore has proved theoretically his semantic argument that perfect naming is rare, there is enough unity of understanding to get on with the job. That early American sceptic, Karl Llewellyn, later admitted that a high proportion of decisions were 'reasonably reckonable' in the real world. This is too high, I think, at the highest levels - as the figures show. It is good to have gone through the valley of despair about language; it is even better when one has emerged at a higher point, and perceived that there are truths, despite inconsistencies, we can with care recognize, and propositions as correct. Then the truth shall make us free, free to create, to shape our ideas and propositions into suitable patterns to meet the mutations of life with new forms of laws.

Words are still good servants, if bad masters. Our minds draw out the meanings in our 'code' from the things which the words represent, the ideas which we apply to name the things, and the relation between them in a sentence. Finding reality is a . process ' , and the process means the law is evolving, as law should. It could not, if concepts had one fixed definition. Whitehead's stress on . process , as the best means of reaching knowledge is thus at work in the law, for example, in his 'Adventures of Ideas'. The best practical proof, as I suggested, is often 'rhetoric' as a combination of persuasive arguments in hard cases, where the decision on a word could go either way.

Balancing Concepts and Principles

To balance two ideas helps to see the relation between them - and the difference in the relation of each idea to the ·thing'. Which principle is more pertinent, more closely related, more 'real'? Which 'typing' fits the pattern of all the things in that situation? That is the technique of the botanist and the geologist - what is the 'order' we impose on all things to make sense of them in their infinite variety of details and see the parts as a whole - a pattern lawyers can agree on. Only after the process of balancing, much more openly spoken of now, does the better idea, pattern, name appear.

7 Lord Reid, 'The Judge as Law Maker' (1972-73) 12 JourIlai o!the Society of Public Teacherso! the Lmv 22,25. Milsom's recent address on the common law shows how greatly the system of law has been affected by juries' views oftilirness. They are elements the judges cannot ignore - often they have obliged the courts slowly to change the legalistic ideas to approximate them to those of the 'man on the bus'. Even now, 'common decency', a . fair-go ., have the common touch. That is why juries are so valuable in relating law to life (Milsom S.F.C., 'The Past and the Future ofJudge-Made Law' (19S I) S Monash University Law Review I).

VVords, VVords, VVords

Paradoxes

509

Balancing involves accepting the paradoxes of the law. They are opposites usually reconcilable by various means we lawyers know. Harmonizing opposites is carried on every day by the courts and brings out, although often quietly, the creative aspect of the law-maker's task often like that of a skilled acrobat. Holmes J. warned Harvard students to this effect eighty years ago:

Certainty is generally an illusion and repose not the destiny of man ... behind the logical form lies a judgment of the relative worth and importance of competing legislative grounds often an inarticular and unconscious judgment is true. And yet the very root and nerve of the whole proceeding. (The Path of the Law.)8

We can never fully 'map our minds' on to the mind of the lawmaker. Our 'maps' - as regards the . major cities', 'rivers', 'roads', 'mountains', - can correspond to his - though the minor towns and roads will be lacking. 'Properties' can be scanned because they are, as Quinton shows, really questions of practical similarity.

Words, as Lord Wilberforce admitted, lead to uncertainty; but that fact, he said, is what makes even statutory interpretation 'so exciting'. 9 So, with the whole law: it is stimulating to try to solve puzzling cases creatively. The law, Sir Garfield Barwick reminded Tasmanian law students, 'is a mystery' .10 It is not 'irrational' but a game, a craft, not a science. Every scientific theory is 'falsifiable', or correctable - and open to reformulation by modifying concepts to include or exclude new data. We cannot decline to talk about law merely because terms are loose.

Lord Reid put it with his practical good sense:

In modem times opinions have been sometimes expressed that because something connot be cut and dried or nicely weighed and balanced or measured, therefore it does not exist. The idea of negligence is equally insusceptible of exact detinition, but what a reasonable man would regard as fair procedure in particular circumstances equally capable of tests in law, and natural justice as it had been interpreted in the courts is much more definite than that. 11

As Lord Wilberforce said in Esso Petroleum v. Harper's Garage,

the common law has often ... thrived on ambiguity and it would be mistaken, even if it were possible, to try to crystallise the rules of this, or any, aspect of public policy into neat propositions. lla

Few concepts can be kept frozen - physicists have invented terms like 'quarks', they speak of 'collisions', 'drives', 'firing'. It was not a poet or a dreamer who declared: 'The most beautiful experience we can have is the mysterious' ... It was Albert Einstein! He echoed the astronomer Jeans who, years ago, wrote of the Mysterious Universe. 12 Theologians cheerfully admit their basic

8 Especially in his late book on The Common Law Tradition, he stressed the factors that steadied the judges and reduced the chances of arbitrary and unpredictable decisions.

9 Lord Wilberforce, Symposium on Statutory Interpretation, Canberra, 5 January 1983,7. 10 Marr D., Banvick (1980) frontispiece. 11 Ridge v. Baldwin [1964J A.C. 40. The tinest; most profound, ideas are almost inexpressible, as

even theologians, interpreting what they regard as divine commands, admit. Mystics can only stumble to tell us what they have experienced. Zen Buddhists do not even try! We can only hope to understand . inside oursel ves' then to communicate as best we can to others. That which is not fully communicable cannot be put into words, as Wittgenstein saw. There is a useful study of these inexpressible ideas in Merton T., The Way ofChuang Tzu (1970).

lIa [1968J A.C. 269, 331. 12 Cited in Watson L. (ed.), Living Philosophies (1931) 'Supemature', frontispiece.


doctrines are mysteries. To find the right name involves the mysterious working of a brain with billions of cells ... There is nothing judges enjoy more than dealing with a 'nice case'! Don't we all? Is not that the secret of our long pilgrimage towards truth? Aristotle long ago saw the solution to the argument that no truth could be expected from formal logic and perfect language use, in his well-known dictum:

Precision is not to be sought alike in all discussions. It is the mark of 'an educated man' to look for precision in each class of things just so far as the nature of the subject allows.

Our minds are not precisely mapped to each atlas or to the world; but that does not destroy the value of maps - as long as we remember that the map is not the territory itself! We can probably all agree that within certain limits, the decisive element is the judge's intuition by making a little law in cases where logic and language give them a leeway. This is the simple answer.


EPILOGUE

I realize sadly how defective is this essay. In one sense it is too long: it deals with problems which all lawyers know. In another sense it is too brief for the experts in linguistics and logic. But the new techniques are so useful that one can only hope that this summary may make it clearer to lawyers, how in fact they do look at words and use them. The ideas even as to puzzling ideas and paradoxes usually get through. Otherwise, lawyers could never talk to one another- and we do! 13

I have also not attempted any account of the new 'logic of change' and of . Semantics' which occupy the experts - except to point to the changes in concepts themselves which we all are aware of. Those interested can consult the expert teachings, for example, George Melhuish, in his work on dynamic logic goes into a 'dynamic' means of reasoning. 14 To conclude, we must not be depressed by the failure, as I said, of pure Formalism. If we employ the techniques I have set out, we will find one in each situation that will bring our minds very near to the minds of the transmitters of the law - the legislators, the judges and the junsts.

One interesting question remains. Scientists are now denying that there is any such thing as The Scientific Method. Should lawyers be asking 'Is there any such thing, The Legal Method'? 15 The better view is that there is no single technique, but a variety of techniques which, between them, enable law to be a 'seamless web', as Maitland put it, whose pattern is plain to all lawyers.

13 Thus scientists now even doubt whether there is such a thing as 'the scientific method' , according to eminent professionals such as Sir Peter Medawar. Even Bertrand Russell had remarked some time previously: 'It is a curious fact that, just when the man in the street has begun to believe thoroughly in science, the man in the laboratory has begun to lose faith in it' (The Scientific Outlook (1970) 152). This is contirmed by another scientific genius, Max Born, who remarked: 'We have sought for firm ground and found none. The deeper we penetrate, the more restless becomes the Universe, all is rushing about and vibrating in a wild dance', cited in Hofstadter, op. cit. 324. Thus the scientists' symbols relating to real things in the physical world no longer can be completely defined. We should not therefore be too troubled by the fact that humanistic terms such as lawyers have to use also fail to take account of the 'dance of things and people' which goes on in the area of the courts, Yet, just as the scientist does not abandon his laboratory but gets on with the task despite the fact that he will never know the whole truth, so the lawyer goes on with his discussions about words and usually finds that after a while terms do become clearer following debate, especially oral debate.

14 The Paradoxical Nature of Reality (1973). 15 If anyone wants to follow up the ways in which our minds work to solve puzzles in reasoning and

concepts, I highly recommend that brilliant, amusing work by Douglas Hofstadter, as to how one could in theory communicate with computers to provide them with artificial intelligence. This dream, as I showed, is only a dream, but the fashion in which symbols could be used to improve communication is fascinating and illuminating for lawyers in the hard case. supra n. 92.

words, words, words* - australasian legal · pdf file6 morgan v. lones (1773) lofft 160 at...

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