Variable Characteristics
When searching for the meaning of a term or concept the instinctive response
is to
assume that it has a fixed and settled number of components or
characteristics. These characteristics become a test for the concept. For
example, if a term has five characteristics it is constituted when each of the five
characteristics is present.
Thus, fixed characteristics are settled and
unchanging, so one can make out a check list. If each characteristic is
satisfied, the concept is satisfied, realised or present. In other words, together
the characteristics determine the necessary and sufficient conditions for
constituting the term or concept.
In contrast to this, a concept with variable characteristics is one which
potentially has a number of components or characteristics, and (i) the presence
of only some of these characteristics is necessary to constitute the concept,
(ii) the constituent characteristics are not fixed but can vary from case to case,
(iii) in some cases the characteristics may be present in varying degrees. Terms
in this category are frequently ambiguous because it is hard to be sure that the
nature, number and degree of characteristics present on any occasion are
enough to constitute the term in question.
A legal example is the common law test as to whether there is a relationship of
employment.
180
A famous non legal example, analysed by Wittgenstein, is the
word "games”.
181
When you look at the variety of things commonly
understood as constituting a game “you will not see something that is common
to all but similarities, relationships, and a whole series of them at that”.
Characteristics of games include skill, luck, competition and amusement, but
not all games have all of these characteristics. Instead there is a “complicated
network of similarities overlapping and criss-crossing” and “sometimes
similarities of detail,” so that similarities between games are like “family
resemblances”.
So, in this form of ambiguity there is no common core of fixed characteristics.
Instead there are a number of characteristics and each particular game has only
some of these. In these cases it is not possible to construct a set of necessary
and sufficient conditions for the concept in question. This causes ambiguity
because when a number of the characteristics are present, it is often
impossible to say with certainty whether those characteristics are enough to
constitute the concept in question.
180
Market Investigation v Minister for Social Security [1969] 2 WLR 1, 9-10, Stevens
v Brodribb Sawmilling Co (1985) 63 ALR 513, 517
181
L Wittgenstein Philosophical Investigations 1953 ss 66, 67
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