Second, sometimes it is possible to
make an informed guess as to what the
court really meant. This enables us to some extent to fill in the gaps and to
rephrase and simplify difficult arguments.
Third,
we
cope
with
any
residual
uncertainty not by looking at the case itself but
by
looking
to
the
future.
We
try
to
predict
judicial
choice
as
we
have
to
in
any
event. In doing this we do what the court itself probably did not do. We consider
all possibilities, we consider all possible meanings of the ambiguous term, and we
consider all arguments which can be used for and against these possibilities. This
reveals how the effect of a difficult case compared to a clearly set out case is one
of degree. A difficult case makes prediction of the future more exacting and more
uncertain.
Indeed, this uncertainty is a form of ambiguity that invites
intervention by a court.
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Past this there is nothing one can do directly about difficult cases. In the
extreme case it is not possible to make sense out of nonsense. But there are
two consolations. First, if a case is hard to read it is, in general, of less value
as a guide to predicting how the issue will be handled by the court in future.
Yet there is consolation because this problem affects everyone. While such a
case is frustrating to read and ultimately impossible to understand fully, all
those who read the
case are equally disadvantaged by it. Second, our main
concern is not what the case means but how the court will decide the issue on
the next occasion. We cover this, as seen above, by considering all possible
meanings of the provisions in question and all possible arguments which can
be used for and against each meaning. Regardless of whether a case is clear or
not, on a point of interpretation we can still do no better than try to predict the
outcome when the issue comes before a court.
Line of Cases
So far the discussion has focused on reading a case in isolation. It is now time
to add a further dimension and see a case as one of several cases on a point,
commonly referred to as a line of cases.
Shortly the point is that the full meaning of a case is derived from its position
and function in the line. There are many possibilities, and some of them will
illustrate the point. (i) The case may affirm a proposition stated in many cases.
(ii) The case may stand out as a clear analysis of a rule that is not well stated in
other cases. It may thus become the definitive judgment. (iii) The case may
deal with the rule briefly or in passing and thus not rate highly as a precedent.
(iv) The case may take a different line to other, or most other cases. Broadly,
the better reasoned it is the better it can win the battle for further judicial
acceptance against the weight of numbers.
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Chapter 10 Classifying Meanings
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