Second, there is the general position. Here there certainly is judicial authority to
support the authority of text – for example, the court said in Hollis’ Hospital
and Hague’s Contract
that the “writing of lawyers” can be a source of
common law.
505
Courts, therefore, “are right to turn to text writers and others
for assistance in arriving at a correct interpretation”.
506
There is however, a problem with this view. In a system based on reasoned
argument there is little point in acceding to the views of any person, judge or
text writer, no matter how brilliant, eminent or well regarded they may be. The
only proper way to assess an argument is not by who says it but by what it
says. Essentially the criterion is how compelling it is in reaching its conclusion.
This alone is the correct way to approach an argument. Therefore the function
of text writers must be confined to illuminating an argument on a question, not
to decide the question itself.
505
Hollis’ Hospital and Hague’s Contract [1899] 2 Ch 540, 552, and see Cochrane v
Moore (1890) 25 QBD 57 at 74, per Lord Esher
506
Day & Dent Constructions v North Australian Properties (1982) 56 ALJR 347, 358
per Murphy J
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