Comment
These three approaches represent three major sides in a debate over what
constitutes proper and legitimate interpretation of statutes. In the absence of
any legislative compulsion as to how it must interpret a statute, a court can
make its own decision as to which method it deploys.
Obviously, if there is legislative compulsion the position is otherwise. In fact
this is the case in Australia (where judges are appointed not elected so judicial
legitimacy does not come into play). In all Australian jurisdictions there is now
a statutory rule that requires courts to interpret a statute by reference to the
policy that underlies it.
110
In other words, originalism prevails over
metademocracy because of a statutory decree.
Precedent
Despite the enormous reverence and devotion of common law for precedent,
its only rational justification, as explained later, is squarely and entirely based
on policy.
111
This later explanation also demonstrates how precedent should
operate when it is conceived as a derivative of policy.
Rules
Properly understood the rules (or maxims or canons) of statutory
interpretation are just packaged policy, and
in this way they are similar to
precedent. They apply to particular circumstances where there is ambiguity.
They constitute policy in that they proffer a plausible or rational or likely view
of the intention of the legislature. In this regard they are mere presumptions, so
that they are guides to interpretation and not rules in the strict sense of the
term.
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But even as guides, they are packaged policy that might apply to a
case.
Secondary Sources
In their judgments, courts will frequently cite secondary sources when
interpreting law. But except for some rare and special cases,
secondary
sources should
not be used persuasively as sources of reasoning. Generally
their proper use is to show how a common law rule has been formulated or to
illuminate an argument.
113
110
Chapter 12 Policy. As Chapter 12 explains, this same effect is also urged by
the common law rule of interpretation, the mischief rule, although this does not
bind a court in the way that a statute does.
111
Chapter 13 Precedent
112
For fuller discussion of the maxims of interpretation see Chapter 14 Rules
of Interpretation.
113
Chapter 15 Secondary Sources
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