In 1935 Felix S. Cohen attacked judges' use of "the vivid fictions and metaphors of traditional jurisprudence" as "reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds." 1 By using such devices as reference points, he contended, "the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged." 2
Half a century later, judicial application of the territoriality principle has provided a good example of the kind of reasoning Cohen disparaged. As we have seen, judges have matter-of-factly relied on territoriality as a reason for their decisions, without fully examining the underlying forces giving rise to the principle in the first place. To use Cohen's terminology, territoriality has become one of a number of "magic 'solving words'" 3 which "are themselves creations of law" and which thus produce "necessarily circular" legal arguments. 4
The failure of territoriality to provide a commonly accepted, fixed point of reference becomes evident when we consider the historical shifts in meaning of the purported principle itself. 5 It appears that from the time territoriality first emerged as a recognized doctrine, its precise content has remained somewhat elusive.
In its origins, the doctrine of territoriality was seen not to oppose that of universality, but rather to complement it. Recall that under the universalist view