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Categories of Illusory References
Categories of Illusory References
SITAR SOLOMON
LL.M
#10223
INTRODUCTION
Julius Stone, a professor of Jurisprudence at Sydney University, in pointing out the fallacy of
Realism, said, the Realists tended to go beyond the strictly necessary limits of their contribution.
It is empirically observable that trial courts have freedom of choice within the rules and that
appellate courts have the power of reformulating old rules and developing new ones. These
powers of choosing, reforming and reformulating may be written off as freedoms; they are also
necessities. Society is in flux and so is law. But the flux of society is swifter than that of the law.
Hence, the probability is that at any given moment of time any given portion of the law calls for
re-examination. Secondly, the observable freedom in judicial decision stems from the lacunae
between the inevitable particularity of the operative facts of a case and the generality of the
rules which may be applied thereto. There are no rules for applying rules. Again, the nature of
what materials in the process of decision are permitted to qualify for the definition of rules, and
whether they are taken to be predictive, descriptive or prescriptive, determines the kind of
functions that the observer will ascribe to them. Immanuel Kant's famous aphorism about the
emptiness of disembodied thought and the blindness of observation without concepts still holds
true. The world we live in is one of particulars, but we cannot grasp hold of it without our
generalizations. Stone has brought to this dilemma two interrelated groups of tools. The first tool
is his development of "the new rhetorics”. The second specifically reconciles the common-law
theory of precedent with the creativity of judgment and English judicial achievement. Through
his analysis of the "fallacies" of the "logical form," he reviews both the deceptive appearances
and the innovative capabilities of the "main types of categories of illusory reference. "1
Stone's "main types of categories of illusory reference" serve as devices identifying the "secret
and even unconscious exercise by courts of what in the ultimate analysis is a creative choice."2
In the task of judging creatively, the premise on which a court's opinion may be founded may not
yield anyone answer by syllogistic reasoning, since the court is both invited and compelled to
provide "an answer based on the evaluation, conscious or unconscious, of the social situation
confronting it."3 The recognition of this process justifies Stone's significant distinction between
"reasoning" and "reasons."
At the heart of Stone’s jurisprudence is an equivocation in his recommendation that, rather than
rely on various categories of illusory reference in their decisions, judges ought to
articulate the real reasons for their conclusions, and that they can do this by
balancing the social interests involved in any particular case.
1
J. STONE, LEGAL SYSTEM AND LAWYERS' REASONINGS 241-300 (1964)
2
STONE, LAWYERS' REASONINGS, supra note 8, at 241.
3
Id.
Stone identified a number of different categories of illusory reference. These
included what he called:
While these categories are meant to explain distinct ways in which legal
materials can be indeterminate, Stone acknowledged that it was often possible to
classify a particular rule or principle of law as it applied in a particular case in
terms of more than one category, and that precise classification was for this
reason sometimes debatable.4
4
Stone, Legal System and Lawyers’ Reasonings; Stone, Precedent and Law.
5
Stone, The Province and Function of Law, 176–8; Stone,
Legal System and Lawyers’ Reasonings, 248–52; Stone, Precedent and Law
standards owed by owners of land to licensees or invitees apply? As Stone pointed out, different
legal consequences flow from each characterisation.6
Again, the law of fixtures and the law applicable to events occurring within a
public river might compete, Stone said, ‘to decide the status of the deceased as he
stood on the springboard, a few feet above the river’. Different consequences
flow from the two relevant legal rules, but the fact situation can properly fall into
either. The judge has to choose between them, but neither formula provides
definitive guidance on how to make that choice.
Just about as common, but somewhat less easy to identify, is Stone’s single
legal category with competing versions of reference. Here one encounters what is
generally taken to be a single legal rule, regularly referred to by one name or
label, the content of which has been expressed, however, by different judges in
subtly and yet significantly different ways. Only one legal rule is supposedly at
stake, but on the different versions the rule applies in different ways, with
different outcomes in the instant case. Confronted with such a situation, a judge
will be faced with the need to choose which version of reference is to be
followed, and thus which set of legal consequences will ensue.7 As Stone
described it, the category occurs where a ‘single verbal entity’ (which we may
designate ‘C’) applies to ‘only one fact-situation’ (which we may designate ‘F’),
but the different versions of reference (‘V1’ and ‘V2’) prescribe different legal
outcomes or results (‘R1’ and ‘R2’).8 As Stone explained, competing versions of
reference are a normal part of the common law, especially given the regular
practice of judges to deliver separate opinions even when concurring in the result
of a particular case. However, although the authors of such opinions may have
assumed that their different versions yielded the same results for the same set of
facts, Stone pointed out that courts later confronted by a different set of facts
(‘F1’) find that the different versions yield different results. The examples
Stone identified where this occurred in the common law included: the rule
concerning the exclusion of similar fact evidence, the principle of frustration of
contract and the principle of consideration in contract – each of which, he argued,
had been encapsulated in conflicting formulations by different judicial authorities.The conflicting
formulations are all referred to by the same name, but each formulation has the potential to
6
Stone, Legal System and Lawyers’ Reasonings, 249; Stone, Precedent and Law, 63.
7
Stone, Precedent and Law, 63–5.
8
Stone, Legal System and Lawyers’ Reasonings,252.
involve different legal consequences, depending upon the nature of the facts presented to the
court.
To Stone’s category of indeterminate reference belong what he called ‘legal standards’ (or
‘principles’, as opposed to ‘legal rules’), which call for judicial evaluation on the basis of an
indeterminate concept (as opposed to judicial deduction on the basis of a relatively determinate
major premise). Such standards or principles include or involve, for example, the ideas of
‘reasonableness’, ‘sufficiency’, ‘adequacy’, ‘appropriateness’, ‘due care’, ‘just cause’ and so on.
It Cannot be said that any conclusion follows logically from these standards. The court is openly
required to evaluate the concrete situation rather than apply a mechanical formula. Notably,
Stone considered the idea of the ratio decidendi of a case to be a prime example of a category
of indeterminate reference.
Category of Meaningless Reference
Illusory categories incorporated into the notion of the ratio decidendi of a case
The illusory nature of many supposed compulsions of logical consistency in the judicial process
has been stated in terms of the indeterminacy of the notion of ratio decidendi itself. What appear
to be judicial liberties with the distinction between ratio decidendi and obiter dictum which
sometimes make it quite meaningless, are in part at least a function of the inherent
indeterminacy of the ratio decidendi itself, the two notions being complementary.
Both the principal theories of the ratio decidendi currently debated are presented as if
they can, each of them, tell us how to find the ratio decidendi of a case. In Professor Goodhart’s
theory that ratio decidendi is squarely asserted to be controlled by the relation between “the
material facts” of the case and the holding on these facts, and this control is claimed to be
complete, the ratio consisting of that very reasoning which is necessary to explain the holding
on “the material facts”, as found by the precedent judge. In the other theory, sometimes called
the “classical” theory, the ratio is said to be the principles propounded by the precedent court as
“necessary” for, or “as a basis of” its decision. Here too it will shortly be shown, even if the
material or relevant facts are not overly made to control the ratio decidendi, they nevertheless
do so converTly, at least in part
Conclusion
It should be clear that in drawing attention to the role of the “categories of illusory reference” in
the process of law, the purpose is not to attack “logic” or its use by lawyers. What is rather done
is to use logic itself to demonstrate the wide range of leeways free of logical compulsions within
the workings of a legal order, and to show that very many decisions which purport to be
compelled by logic are really cases of an abuse of logic.
BIBLIOGRAPHY