the United States”.
282
Conspicuously omitted is reference to an air force, but
by reference to concepts and conceptions it is possible to argue that Congress
also has power to establish and regulate it. Army and navy are conceptions of
the more abstract concept, defence forces. Logically a Constitution should
give a government full power over defence forces. This logic is further
bolstered because any argument against it that is drawn
from failure by the
Constitution
to specify the air force in this provision can be simply met:
humans had not achieved air flight when the United States Constitution
was
written.
In this example, the class of things in the defence force originally had two
members, navy and army. Advances in technology added a third member, air
force. In contrast to this, s80 of the Commonwealth Constitution
involves a
class with only one member. Section 80 of the Constitution, so far as relevant,
provides that the "trial
on indictment of any offence against the
Commonwealth shall be by jury”. In 1900, trial by jury was a member of a
class of things that make for a fair criminal trial. In common law jurisprudence,
this class had only one member. It was trial by jury or no fair trial at all.
Consider now the possibility that following advances in statistics, neurology
and cognitive psychology, techniques are developed for accurately
determining the probability that something that a person says is true. This
introduces another means of providing a fair trial, so the class of things
providing a fair trial has two members. Moreover, the newer one, based on
science, is fairer than trial by jury based on safety in numbers.
In principle a court can invoke notions of concepts and conceptions to include
the new trial method within s80. However, this ambiguity may be harder to
invoke where the class has only one member. In art 1 §8 the class already had
two members, so it was not such a big leap to include a third that was similar
to these two. In s80 the class originally had only one member, so a court may
not be as receptive to extension by addition of a second member.
Ambiguity of Competing Versions
Introduction
This ambiguity is constituted by there being two or more versions of the same
rule. Versions of a rule, we need to note, come in two forms, stated and
inferred. While the obvious version of a rule is actually stated, it is always
possible that a version is just inferred.
This ambiguity occurs only in common law and occurs there because
common law is articulated or inferred by judgments of courts. It does not
282
Goldsworthy (2000) p 699
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