This method of reasoning is called policy, and is based on the processes of
causation and evaluation.
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It is impounded in the model for forming law
presented below. This model analyses making law, namely a legislature making
statute law or a court making common law, and logically applies to all
jurisdictions.
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It also analyses a court interpreting statute law or common law,
which constitutes making law but on a reduced scale.
This model has three components:
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Step 1: Options
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Step 2: Reasons
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Step 3: Decision
These steps or components of the model have two contrasting characteristics.
The basic processes involved are non negotiable because they are founded on
an inexorable logic which underlies the processes of forming law. But, despite
this fixed foundation, performance of the tasks that these processes entail is
not generally scientifically determined; in practice it tends to involve human
rather than scientific judgments, even if these judgments can be based on some
good reason.
Step 1: Options
Legislators about to make law and a court about to interpret law face options.
This is why Step 1 in the model for forming law is to identify these options. It
is of fundamental importance to identify all options because the essence of the
decision making rule for making and interpreting law is to choose the best
option of all. To state the obvious, if some options have not been identified it
is always possible that one of these options which has been overlooked was in
truth the best. Consequently, there would be no guarantee that a legislature or
court has decided upon the best of all if it does not have all options before it.
Options have two parts:
(1)
Statutes, Rules and Meanings. This part entails all the possible statutes
that a legislature might pass on a subject, all the possible common law rules
that a court can make or all of the meanings of an ambiguous provision.
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(2)
Effects. This part entails the effect which each version of the statute or
rule will cause if enacted or made, and which each meaning will cause if
chosen by a court as the correct legal meaning of the ambiguous provision.
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For general discussion of policy see Castles, Murray and Pollitt (1982).
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Note, however, in this regard, that Sir Anthony Mason, a former Chief
Justice of the High Court of Australia expresses the view that there is “an absence
of uniform judicial methodology” - see Mason (2003) in Sheard (2003) p 5.
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As Francis Bennion (1980) p 1156 says, right on this point: “First, let the
interpreter ascertain exactly what causes the doubt”.
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