best matches Effect X.
109
In this case the court will declare Meaning 2 to be
the legally correct meaning of this provision in Statute X, as the following table
illustrates:
Meanings
Effects
Statute X
Meaning 1
Effect 1
Meaning 2
Effect 2
/
Effect X
Meaning n
Effect n
Figure 5.5 Meanings, Effects and Legislative Intent
Thus legislative legitimacy takes the approach that interpretation completes the
text of a statute
by deciding that an ambiguous provision has one meaning
rather than another. In other words, interpretation is a continuation of the
process of making a statute. Here, the court claims legitimacy because it is
simply fulfilling the intention of a democratically elected legislature. This
approach is sometimes also called originalism.
Metademocracy
In a collection of approaches labelled metademocracy by jurists a court takes
into account failings in democracy. It tries to offset these failing by
determining as legally correct the meaning which in its view provides the
outcome that a properly democratic legislature would have chosen. This
approach of metademocracy is in contrast to choosing the meaning which the
legislature actually intended as legislative legitimacy prescribes.
These approaches of metademocracy concede the point underlying
originalism, that democracy confers legitimacy. However, proponents dispute
the premise that the legislature is properly democratic. Their contention is that
major flaws in the system detract from the democratic nature of the legislature.
Consequently, a court should interpret a statute by taking into account the
defects in representative democracy both in principle and in practice. To
emphasise the position, under this regime, the court should not interpret
according to the actual intention of the legislature, but according to the
intention that the legislature would have had had it been composed and
functioning in a properly democratic way.
Judicial Legitimacy
In a jurisdiction where judges are elected, judges can claim some legitimacy
from their elected office in the same way that legislators do. This potentially
justifies them in exercising their own judgment as to which outcome is the best.
This is labelled judicial legitimacy.
109
Effect 2 is the equivalent of Effect X (
) or it is a good approximation of it
(
).
 |
 |
 |