In summary, this is the position in a democracy. When a legislature makes a
law, to some reasonable extent, but not totally, the ensuing legislation
represents the aggregate of the individual choices or preferences of voters.
This constitutes one of the major ways in which law achieves legitimacy.
106
Interpreting Law
A legislature legitimately makes its own policy. To put it baldly and simply, a
legislature achieves substantial legitimacy because of its democratic
composition and because there is no agreed better means of achieving
legitimacy. With courts, however, the position is not so simple. Putting the
situation broadly, there is no agreed means by which a court can claim
legitimacy when interpreting a statute. Instead, three major means are proposed
as to how a court can interpret a statute in a way that is consistent with
democracy –
legislative legitimacy, metademocracy and judicial legitimacy.
Each of these pushes for a different policy. Thus a court has to face the
question of determining which of these means it should use when it interprets a
statute made by an elected legislature. However the court answers this question
will determine the policy that it deploys for interpretation.
107
Legislative Legitimacy
One view has it that the most
appropriate
judge of the “best” effect for a
statute is a democratically elected legislature, since it best represents
the will
and the judgment of the population at large. Given this, the rational way for a
court to interpret law is by reference to the policy or effect that the legislature
was trying to achieve. Therefore, a court should choose as the correct
meaning of the ambiguous provision
the meaning which causes this effect.
That is, the court accedes to the judgment of the legislature as to which is the
best effect rather than exercise its own independent judgment in the matter. In
other words, a statute should be interpreted “according to the intent of the
Parliament that made it”.
108
This is the means by which interpretation achieves
legitimacy through legislative democracy.
To illustrate this, assume that a court is interpreting Statute X which was
intended to achieve Effect X. To interpret by reference to original policy the
court has to choose the meaning which best implements Effect X. Assume for
the purposes of illustration that Meaning 2 causes Effect 2 and that Effect 2
106
Christopher Enright Legal Reasoning Chapter 21 Social Choice: Making Law
107
While these means of interpretation will now be explained in brief, there is
fuller discussion in Christopher Enright Legal Reasoning Chapter 22 Social Choice:
Interpreting Law.
108
Amalgamated Society of Engineers v Adelaide Steamship Co
(Engineers’ Case)
(1920) 28 CLR 129, 161-162, per Higgins J. See also Evans (2000) p 201.
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