Hong Kong University Press

Chapter Title: Theories of Adjudication

Book Title: The Sources of Hong Kong Law

Book Author(s): Peter Wesley-Smith
Published by: Hong Kong University Press. (1994)
Stable URL: http://www.jstor.org/stable/j.ctt2jc134.7

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 Theories of Adjudication

Prologue

How do conscientious judges in the common law tradition go about the task of
adjudication? Where and how do they find the law to apply in a particular case?
What role is there for creativity, imagination, and personal responsibility? These
are big questions, perennially fascinating and passionately debated. The answers to
them have usually been sought in either the declaratory theory or some realist
rejection of it. I It may be, however, that a useful approach lies not in choosing
between the principal opposing theories but in recognizing the value of both and
their 'complementarity' to each other.

The declaratory theory

Corresponding to the concept of the common law as a set of traditional practices

and ideas, the 'classical' notion that judges discover and declare law rather than
invent or create it received its most authoritative exposition in Blackstone's Com-
mentaries on the Law of England. 2 Blackstone claimed that judges are 'the living
oracles' of the law, obliged to decide in all cases of doubt according to the law of
the land. Their judicial decisions are 'the principal and most authoritative evidence,

See, eg, Patrick Atiyah, 'Judges and Policy' (1980) 15 Israel LR 346. For an account of a
variety of possible models, see Max Weaver, 'Is a General Theory of Adjudication Possible?
The Example of the Principle/Policy Distinction' (1985) 48 MLR 613. Weaver answers the
question posed in his title as follows: 'The realisation that each of the models fits some of
the facts some of the time suggests that the jurisprudent's quest for a general theory of
adjudication is a vain one if by a general theory of adjudication is meant one universally
applicable model' (p 643).
2 Vol I, Of the Rights of Persons (1765, reprinted with introduction by Stanley N Katz by
Chicago University Press in 1979).

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22 The Common Law

that can be given, of the existence of such a custom as shall form part of the
common law .... For it is an established rule to abide by former precedents, where
the same points come again in litigation ... ' The judges possess delegated authority
not to pronounce new law 'but to maintain and expound the old one'. They do not
alter or vary law which has been 'solemnly declared and determined'; they do not
decide according to 'private sentiments' or their 'own private judgment'.3
Thus the judge searches the records, discovers the law previously recognized,
declares and expounds it, and applies it to the dispute before the court. 'It is the
province of the judge,' stated Parke B in Egerton v Brownlow, 'to expound the law
only; ... the unwritten or common law from the decisions of our predecessors and
of our existing courts, from text-writers of acknowledged authority, and upon the
principles to be clearly deduced from them by sound reason and just inference ... '
Previous decisions 'have become part of the recognized law, and we are therefore
bound by them, but we are not thereby authorized to establish as law everything
which we may think for the public good, and prohibit everything which we think
otherwise'. It is not the province of the judge 'to speculate upon what is the best, in
his opinion, for the advantage of the community'.4
Hart has called this 'the Noble Dream':

it represents the belief, perhaps the faith, that, in spite of superficial appearances
to the contrary and in spite even of whole periods of judicial aberrations and mis-
takes, still an explanation and a justification can be provided for the common
expectation of litigants that judges should apply to their cases existing law and
not make new law for them even when the text of particular constitutional pro-
visions, statutes, or available precedents appear to offer no determinate guide.
And with this goes the belief in the possibility of justifying many other things,
such as the form of lawyers' arguments which, entertaining the same expecta-
tions, are addressed in courts to the judges as if he were looking for, not creating,
the law; the fact that when courts overrule some past decision, the later new de-
cision is normally treated as stating what the law has always been, and as
correcting a mistake, and is given a retrospective operation; and finally, the fact
that the language of a judge's decision is not treated, as is the language of a stat-
ute' as the authoritative canonical text of a law-making verbal act. s

Although widely condemned, the declaratory theory is not wanting in modern

judicial support. This seems particularly so in Australia,6 where Sir Owen Dixon

Ibid, pp 69-71.
4 (1853) 4 HLC I, 124; 10 ER 359, 409. See also Mirehouse v Rennell (1833) 1 Cl & F
527,546; 6 ER 1015, 1023.
H L A Hart, 'American Jurisprudence through English Eyes: The Nightmare and the
Noble Dream' in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983),
pp 132-3.
6 See Michael D Kirby's review of Robert Bork's The Tempting of America: The Political
Seduction of the Law in (1991) 13 Sydney LR 103, esp p 107: 'The call for a return to true
declaratory theory has little attraction to realist Australian lawyers taught by Julius Stone and
alert to the truths laid down by Roscoe Pound at Harvard University in the early decades of
the century.'

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 Theories of Adjudication 23

averred that 'courts do in fact proceed upon the assumption that the law provides a
body of doctrine which governs the decision of a given case. It is taken for granted
that the decision of the court will be "correct" or "incorrect", "right" or "wrong" as
it conforms with ascertained legal principles and applies them according to a stand-
ard of reasoning which is not personal to the judges themselves'.7 One of Dixon's
successors as Chief Justice of Australia, Sir Garfield Barwick, stated in 1978:
'There being no authority which binds or course of acceptable decisions which
compels, the common law is what the court, informed as to the past course of
decision, decides what in truth it is and, of course, always has been.'8 In Dugan v
Mirror Newspapers Ltd he put it this way: 'The court can, of course, decide what
the common law always has been: and, if earlier judicial decision is not to that
effect, overrule or depart from such a decision: and the court can, as it were, extend
the principles of the common law to cover situations not previously encountered, or
not as yet the subject of binding precedent.'9 Again: 'Where the law has been
declared by a court of high authority, this Court, if it agrees that that declaration
was correct when made, cannot alter the common law ... ' 'It can, of course, decide
that that declaration was erroneous when made and itself declare what the common
law ought properly be held to be.'1O In 1913 Isaacs J (also later Chief Justice of
Australia) said: 'A prior decision does not constitute the law, but is only a judicial
declaration as to what the law is. The declaration, unless that of a superior tribunal,
may be wrong, in the opinion of those whose present function is to interpret and
enforce the law ... ' 11 Judges are bound by their oath to be loyal to the law itself.
'If, then, we find the law to be plainly in conflict with what we or any of our
predecessors erroneously thought it to be, we have, as I conceive, no right to
choose between giving effect to the law, and maintaining an incorrect interpretation.
It is not, in my opinion, better that the Court should be persistently wrong than that
it should be ultimately right.' 12 Sir Alan Huggins VP in the Hong Kong Court of
Appeal expressly rejected alternative views when he stated: 'we cannot accept the
suggestion l3 . . . that the concept of public welfare offences as a means of doing
away with the requirement of mens rea for petty offences was "a judicial creation".
It is the function of the courts to interpret and not to create law.' 14

'Concerning Judicial Method' in Jesting Pi/ate (Melbourne, Sydney, Brisbane: Law Book
Co, 1965), p 155.
" Atlas Tiles v Briers (1978) 21 ALR 129, 134.
9 (1979) 22 ALR 439, 441.
10 State Government Insurance Commission v Trigwell (1979) 142 CLR 617,623 (emphasis

supplied).
11 Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association (1913)

17 CLR 261.275.
12 Ibid, P 278. Sir Garfield Barwick, while admitting that Isaacs' view is not universally
accepted. nevertheless subscribes to it: see 'Judiciary Law: Some Observations Thereon'
(1980) 33 CLP 241,245.
13 In R v City of Sault Ste Marie (1978) 85 DLR (3d) 161, 170-1.

14 AG v Shun Shing Construction & Engineering Co Ltd [1986] HKLR 311, 313. See also

p 256 below.

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24 The Common Law

Judges have good reason to remain attracted to the declaratory theory,15 if only
because it deflects the charge that decisional law is retroactive l6 and undemocratic
and it absolves them of personal responsibility for what they do. It is still common-
place for judges and others to talk of a final court's common law decision as
erroneous, as though there were some standard ('the law') standing behind it. That
the common law remains the same over time underlies the orthodox assumption of
colonial law that decisions of the House of Lords, though announced after the date
of reception of English law in the colony, were binding on colonial courtsY The
date of reception applied only to English statutes, such that Acts of Parliament
enacted thereafter were not in force in the colony unless specifically received; the
House of Lords, being the supreme arbiter of the law of England though not an
appellate tribunal for any colony, bound colonial courts by its decisions even on
purely common law matters, and this was so whether its pronouncements were
made before or after the cut-off date. House of Lords decisions were not merely
persuasive but authoritative, on the theory that the common law now is identical to
the common law then. The theoretical issue was well stated by Herbert Pope in
1910:

It was, perhaps, of no great practical consequence, so far as English law was

concerned, if Blackstone and the English judges preferred to say that the
courts did not make the law, but only declared it, so long as it was always
understood that the common law of England on any subject was never differ-
ent from the law as settled by decided cases. But when the question concerned
the effect of the adoption of the common law of England as a controlling
source of law in another jurisdiction, it obviously made some difference whether
English decisions were thereby made as controlling and binding upon the
courts of that other jurisdiction as the decisions of its own courts, or whether
English decisions were only made some evidence of the common law, and
courts of the other jurisdiction were in fact given perfect freedom to determine
for themselves what the English common law was or ought to be, at the same
time that their own decisions, according to the rule of the English common
law, became binding upon them in the decision of subsequent cases. In the one
case the common law of England is identified with the decisions of the Eng-

15 See Horst Llicke, 'The Common Law: Judicial Impartiality and Judge-Made Law' (1982)
98 LQR 29, 45-50.
16 See note 34, p 296 below. Thus, for example, the judicial 'creation' of a criminal offence,

forbidden by article 12(1) of the Bill of Rights in Hong Kong ('No one shall be held gUilty of
any criminal offence on account of any act or omission which did not constitute a criminal
offence, under Hong Kong or international law, at the time when it was committed'), can be
permitted by relying on the declaratory theory to deny that any element of creation or
retroactivity existed.
17 As in Chan Wai-keung v R [1965] HKLR 815, 847. See Antony Allott, Essays in African

Law (London: Butterworths, 1960), p 33 and New Essays in African Law (London:
Butterworths, 1970), pp 63-7. It was common for British colonies to import the law of
England as it existed on a certain date as the general law of the particular territory; Hong
Kong, for example, chose 5 April 1843 as its cut-off date for the reception of English law
(until the cut-off date was repealed in 1966). See Chapter 6 and p 191 below.

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 Theories of Adjudication 25

lish courts; in the other it is treated as something eXlstmg apart from the
decisions of the English courts, which all courts subject to the rule of the
common law are engaged independently in discovering and declaring, though
in regard to which their discoveries and declarations should be the same. 18

The realist thesis

Austin castigated the declaratory theory as a childish fiction.19 The common law,
said the positivists, existed (if it existed at all) because it was laid down by judges
who possessed law-making authority. Law was the product of judicial will. It was
not discovered but created.
This approach might be either founded on the common-law-as-myth position
or a consequence of the idea that the common law is a set of propositions. 20 For
Hart it represents 'the Nightmare':

Litigants in law cases consider themselves entitled to have from judges an ap-
plication of the existing law to their disputes, not to have new law made for
them. Of course it is accepted that what the existing law is need not be and very
often is not obvious, and the trained expertise of the lawyers may be needed to
extract it from the appropriate sources. But for conventional thought, the im-
age of the judge, to use the phrase of an eminent English judge, Lord Radcliffe,
is that of the 'objective, impartial, erudite, and experienced declarer of the law' ,21
not to be confused with the very different image of the legislator. The Night-
mare is that this image of the judge, distinguishing him from the legislator, is
an illusion, and the expectations which it excites are doomed to disappointment
- on an extreme view, always, and on a moderate view, very frequently.22

It often appears that realism has carried the day. The common law, Oliver
Wendell Holmes stated, is not some 'brooding omnipresence in the sky' ,23 always

18 'The English Common Law in the United States' (1910) 24 Harvard LR 6, 7.

19 Lectures on Jurisprudence or the Philosophy of Positive Law (London: John Murray, 5th

ed 1911), P 634: what hindered Blackstone from recognizing an ex post facto law 'was the
childish fiction employed by our judges, that judiciary or common law is not made by them,
but is a miraculous something made by nobody, existing, I suppose, from etemity, and
merely declared from time to time by the judges. This being the case, of course there can be
no ex post facto legislation in the English Judiciary law'.
20 See Chapter I above.

21 'The Lawyer and His Times' in Arthur E Sutherland (ed), The Path of the Law from 1967
(Cambridge, Mass: Harvard Law School, 1968), p 14.
22 Hart (note 5 above), p 126.

23 Southern Pacific Co v Jensen, 244 US 205, 222 (1917); Mark DeWolfe Howe (ed),
Holmes-Laski Letters (London: Oxford University Press, 1953), vol 2, P 822. See also
Holmes J in Kuhn v Fairmont Coal Co, 215 US 349, 372 (1910) ('The law of a State does
not become something outside of the State court and independent of it by being called the
common law. Whatever it is called it is the law as declared by the State judges and nothing
else') and Black and White Taxicab Co v Brown and Yellow Taxicab Co, 276 US 518, 533
(1927) (,Books written about any branch of the common law treat it as a unit, cite cases from

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26 The Common Law

present and correct. His compatriot Benjamin Cardozo elegantly affirmed the role
of choice in the judicial process;24 Lord Radcliffe wondered how such a notion
could ever have been denied. 25 Julius Stone dismissed the declaratory theory as the
classical standpat position while demonstrating the inevitability of judicial creativ-
ity.26 Few modern discussions of their function by British judges do not contain an
explicit rejection of the older theory. Lord Reid, for example, damned it as a fairy
tale.27 Barwick CJ said in MLC Assurance Co Ltd v Evatt28 that, 'where no author-
ity binds or current of acceptable decision compels, it is not enough, nor indeed
apposite, to say that the function of the court in general is to declare what the law is
and not to decide what it ought to be. In such a case, in my opinion, the common
law is as much in gremio judicis as ever it was, assisted and instructed no doubt by
all that has happened through the years of its growth: and thus in such a case the
two positions of what is and what should be are in reality coincident'. Citing these
remarks Rupert Cross wrote: 'Anything which recognizes the existence of a judicial
power to change as opposed to merely declaring the law ... is to be welcomed as a
victory for common sense over antiquated fiction.'29 'In my view,' wrote a Chief
Justice of Canada, 'we are all the healthier in our judicial outlook in now recogniz-
ing and asserting that the common law process of drawing on experience of past
decisions, of assessing facts before leaping to principle, of using analogy as well as
analysis is a creative process, and that our Courts and Judges are not merely
engaged in archaeological digging.'30

this Court, from the Circuit Courts of Appeals, from the State Courts, from England and the
Colonies of England indiscriminately, and criticise them as right or wrong according to the
writer's notion of a single theory. It is very hard to resist the impression that there is one
august corpus, to understand which clearly is the only task of any Court concerned. If there
were such a transendental body of law outside of any particular State but obligatory within it
unless and until changed by statute, the Courts of the United States might be right in using
their independent judgement as to what it was. But there is no such body of law .... It is
through this phrase the "common law" that what I think the fallacy comes in'). These
passages are quoted by E K Braybrooke, 'The Authority of the House of Lords in New
Zealand Courts' (1956) 32 NZLJ 347.
24 See The Nature of the Judicial Process (New Haven and London: Yale University Press,
1921), passim.
25 'In this context there was never a more sterile controversy than that upon the question
whether a judge makes law. Of course he does. How can he help it?' Not in Feather Beds:
Some Collected Papers (London: Hamish Hamilton, 1969), p 215. See also Lord Radcliffe,
The Law and its Compass (Evaston, Ill: Northwestern University Press, 1960), p 39. Radcliffe
can still refer to the 'excavation' or 'unveiling' oflaw: Not in Feather Beds, p 213.
26 'Judicial Precedent and Common Law Growth' in Richard R Vuylsteke (ed), Law and
Society: Culture Learning Through the Law (Honolulu: East-West Center, 1977), pp 143 ff.
See also Julius Stone, Legal System and Lawyers' Reasonings (Sydney: Maitland Publications,
1964), esp ch 7.
27 'The Judge as Law Maker' (1972-3) 12 JSPTL 22.
2X (1968) 42 ALJR 316, 318.
29 'Recent Developments in the Practice of Precedent - The Triumph of Common Sense'
(1969) 43 ALJ 3, 6-7.
30 (1977) 51 ALJ 345, 347.

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 Theories of Adjudication 27

A High Court judge in Hong Kong once boldly declared: 'It is not giving away
any trade secrets to say that, contrary to popular myth, very few judicial decisions
owe anything to logic, but, instead, rely solely on rhetoric and reasoning by anal-
ogy. Most legal decisions (this included) are rationalised policy decisions.'31

The wavicle theory

Despite the scorn with which the declaratory theory has been treated for so long it
has made something of a comeback in the recent jurisprudential past. Krygier
recognizes the unassailability of Julius Stone's remorseless attack on a deductivist,
syllogistic, mechanical version of what judges do, yet suggests that a modified
declaratory theory can be maintained. 'When a purported rule is inadequate to
decide a particular case, that does not automatically mean that the judge can only
reach beyond the law' :32 the true task is to find a solution which is consistent with
values internal to the legal tradition, which looks to ideas inherent in the system,
which involves choice but of a limited and strictly controlled kind. Exercising such
choice might involve more art than science. 'It is also an inherently controversial
practice, with no guarantees or mechanical criteria of success, and as a result of
which new rules continue to appear, as changed values are brought by those within
the tradition to bear on it. As Stone well knew and was unsurpassed in letting others
know, such a process is caricatured beyond recognition as "application of the
existing law". It is, however, equally caricatured as one in which the law has run
out. In important ways, that does not occur, even in the hardest and most unprec-
edented case.'33 Ronald Dworkin, whom Krygier sees as an ally, puts forward an
influential theory which Hart calls a 'contemporary version of the Noble Dream' .34
Blackshield points out that, without a clear hierarchy of courts, as in England prior
to the Supreme Court of Judicature Acts 1873-5, 'it was necessary to have recourse
to a concept "of the law as existing apart from and superior to precedents". In such
a situation precedents cannot be blindly followed; they must be used to ascertain
the law' .35 And when an orderly system of precedent breaks down 'the "higher
obligation" to "correct statement of the law" must reassert itself; in the very mo-
ment of primordial darkness, there turns out to be "a brooding omnipresence in the
sky" after all' .36

31 Yau Shun-po v Oriental Insurance Co Ltd [1986] HKLR 72, 78-9 per Rhind J.
32 'lulius Stone: Leeways of Choice, Legal Tradition and the Declaratory Theory of Law'
(1986) 9 UNSWLJ 26, 36. See pp 10-11 above.
33 Ibid, P 38.

34 Hart (note 5 above), p 137.

35 A R Blackshield, The Abolition of Privy Council Appeals: Judicial Responsibility and

'The Law for Australia' (Adelaide: Adelaide Law Review, 1978), p 66.
36 Ibid, pp 66-7.

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28 The Common Law

It was with such views in mind that the rather whimsical 'wavicle theory' of
the common law was first suggestedY Just as physicists explain light as validly
described by both particles and waves, so the judicial function is in some circum-
stances explained as the mere declaring of old law and in others as the fashioning
of new law. It all depends on how you look at it. The two theories are complemen-
tary to each other. They may also be contradictory, but if quantum mechanics can
tolerate explanations which seem contrary to common sense, perhaps jurisprudence
can do so as well. Though more art than science, judicial decision-making can
share with both of these fields the discipline, respect for tradition, and creativity
which there co-exist. Many people, it has been said, see science as

only a body of facts, promulgated from on high in musty, unintelligible text-

books, a collection of unchanging precepts defended with authoritarian vigor.
Others view it as nothing but a cold, dry, narrow, plodding, rule-bound proc-
ess - the scientific method: hidebound, linear, and left brained.
These people are the victims of their own stereotypes. They are destined
to view the world of science with a set of blinders. They know nothing of the
tumult, cacophony, rambunctiousness, and tendentiousness of the actual scien-
tific process, let alone the creativity, passion, and joy of discovery.38

Both views are in some respect right, each describing one legitimate version of the
subject, just as declaratory and realist accounts of the judicial process can be
simultaneously meaningful and useful.
Certainly the courts exhibit ambivalence, moving between declaratory and re-
alist positions without noticing any theoretical inconsistency. Just before talking of
fairy tales, for example, Lord Reid said that 'A decision of the House of Lords is
final not because it is right but because no one can say it is wrong' ,39 thus admitting
the possibility of error which no law-making House could theoretically commit. In
one case a strictly realist attitude was applied to deny the binding effect of House of
Lords decisions in a Commonwealth country announced after the cut-off date for
the reception of English law,40 despite declaratory assumptions by generations of
lawyers who regarded post-cut-off House of Lords decisions as enunciating pre-
cut-off law. Consider two important Privy Council decisions on appeal from Hong
Kong. In de Lasala v de Lasala 41 the Board could find no principle by which House
of Lords decisions on the common law could be binding on colonial courts; English
law could not be authoritatively determined by the House of Lords so far as the

37 Peter Wesley-Smith, An Introduction ·to the Hong Kong Legal System (Hong Kong:

Oxford University Press, 1987), pp 71-2 (2nd ed 1993, p 67).

38 Frazier, 'The Year in Science: An Overview' in 1988 Yearbook of Science and the
Future, quoted in (1988) 12 Skeptical Inquirer 320.
39 Note 27 above. This could be interpreted to mean that a House of Lords decision is
neither right nor wrong, there being no external standard by which to measure it. But it
seems more likely that Lord Reid recognized fallibility which would nevertheless go
uncorrected because there was no further appeal.
40 Lee Kee Cheong v Empat Nombor Ekor (NS) Sdn Bhd [1976]2 MU 93, 95.

41 [1980] AC 546 (discussed in Chapter I1 below).

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 Theories of Adjudication 29

courts of Hong Kong were concerned, who remained capable of finding and declar-
ing it for themselves. But in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank12
Lord Scarman announced that even the Privy Council was bound by the House of
Lords on a question of English law, since the House was the supreme tribunal to
settle that law. The Judicial Committee was in the former case informed by declara-
tory modes of thought, in the latter by the positivist notion that law is what the
judges say it is. One could almost say, in Stone's terms, that the fundamental
theories of judicial decision-making constitute the ultimate category of illusory
reference,43 since judges are free to choose one or the other as it suits them. At least
in the practice of the courts, the declaratory theory and the realist theory are
conterminous, despite their apparent contradiction; they are alternative weapons in
the judicial armoury. In one respect they seem to be complementary, resort being
had to the one to justify deliberate change, to the other to calculate the conse-
quence; that is, realism provides authority for law-making, the declaratory theory
for the application of new judge-made rules to prior events. Sir Henry Maine
referred to this kind of complementarity when he wrote in Ancient Law:

With respect to that great portion of our legal system which is enshrined in
cases and recorded in law reports, we habitually employ a double language,
and entertain, as it would appear, a double and inconsistent set of ideas. When
a group of facts come before an English Court for adjudication, the whole
course of the discussion between the judge and the advocates asumes that no
question is, or can be, raised which will call for the application of any princi-
ples but old ones, or of any distinctions but such as have long since been
allowed. It is taken absolutely for granted that there is somewhere a rule of
known law which will cover the facts of the dispute now litigated .... Yet the
moment the judgment has been rendered and reported we slide unconsciously
or unavowedly into a new language and a new trend of thought. We now
admit that the new decision has modified the law. The rules applicable have,
to use the very inaccurate expression sometimes employed, become more
elastic. In fact, they have been changed. A clear addition has been made to the
precedents and the canon elicited by comparing precedents is not the same
with that which would have been obtained if the series of cases had been
curtailed by a single example. 44

Complementarity may also appear when attempting to explain what the law is
in any particular situation, the result depending on which use of language is pre-
ferred:

Suppose a lawyer thinks that the highest court of some jurisdiction has a duty,
flowing from law as integrity, to overrule a precedent and so find for the
plaintiff, but that a lower court, bound by a strict doctrine of precedent, has a
duty to enforce that precedent and so decide for the defendant. He might say
(this is one way to put the point) that the law for the higher court is different

42 [1985]3 WLR 317, 331.

43 Stone, Legal System and Lawyers' Reasonings (note 26 above), pp 214-16.
44 Quoted by John Dickinson, 'The Law Behind Law' (1929) 29 Col LR 113, 118, n 17.

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30 The Common Law

from the law for the lower. Or he might say (this is another) that since the
highest court has the last word, the law is 'really' for the plaintiff, though she
must appeal to have that law recognized and enforced. The vocabulary of law
... is flexible enough to allow us to describe the same complex structure of
legal relations - rights and duties enforceable in specified circumstances -
in different ways depending on audience, context, and purpose. 45

The wavicle theory is thus at least partly due to the flexibility of legal vocabulary:
our choice of terminology might radically affect our understanding of what the law
actually is, though each choice leads to a legitimate explanation. 46

45 Ronald Dworkin, Law's Empire (London: Fontana, 1986), pp 452-3n.

46 See also Brian Bix, Law, Language, and Legal Determinacy (Oxford: Clarendon Press,
1993), pp 195-7 regarding the 'temptation to relativism': claims in legal theory may be
relative to a particular purpose or viewpoint and may, though vastly different from each
other, be simultaneously held.

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