How do we know when courts (or counsel) are using theory? Sometimes
they tell us. Sometimes they don't, as we saw in Chapter 4. As we will see in Yorta
Yorta, the majority judgment makes some specific and explicit references to legal
theory. The judges refer to a number of writers by name, but they also use law's
'secret language'- the phrase 'rule of recognition'. Can you remember where this
phrase comes from? If you can't, we'll see shortly.
Sometimes, though, the judges don't tell us at all. The ideas which flow into
the decision from theory are not explicitly sourced, and we have to work them
out for ourselves.