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Thy Name is Illusory Reference

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Lawyers always admit that today, cases do occasionally arise requiring a judicial choice free of logical compulsions either because a substantial part of the facts are of first impression or because there is a square conflict with pre-existing authority or dictum.

The judge, as per Julius Stone, does not always have a reference and often converts or transforms something into a reference for the purpose of reaching a desired conclusion. These references are illusory. Stone classified these types of illusory references into various categories. 

The third category of such illusory references is called the “Legal Categories of Competing Reference.” 

Under this category, there is a reference to the case of Haseldine v. Daw, wherein a controller of a lift was involved. One outcome would have resulted if a certain person involved in the case was considered a custodian of reality and another result would have ensued if he was considered a common carrier. 

In other words, a judge in this context had the freedom to decide between these two options depending on the result sought to be achieved.

From the outcome, it may appear that the judge appreciated the merits of the issue, identified the correct reference and made the conclusion based on that. The exercise of choice appears as a reference.

However, it is actually a reference based on the exercise of discretion by the judge, which in turn is based on the conclusion that the judge has already arrived at. 

In such cases, the narrative of the judge with respect to the selection of a category is nothing but the creation of an illusory reference.

Source: Barandbench