Step 3: Decision
Step 3 in the model is to make the decision. In Step 1 the options were
identified. These consisted of:
(1)
The possible versions of a statute that a legislature might make and the
effect that each version is predicted to cause.
(2)
The possible versions of a common law rule that a court might make
and the effect that each version is predicted to cause.
(3)
The possible meanings of an ambiguous provision in common law or
statute and the effect that each meaning is predicted to cause.
Step 2 consisted of canvassing all of these effects and calculating their net
benefit. This enabled the legislature or court to identify the best of these
effects. In turn this enabled the legislature or court to determine from among
the options the best the statute, the best common law rule or the best meaning,
because this is simply the one that causes the best effect.
Step 3 involves a decision to turn these options into law. This happens in three
ways:
(1)
The legislature enacts into law the best version of the statute.
(2)
The court declares the best version of a proposed common law rule to
be law.
(3)
The court pronounces the best meaning of the ambiguous provision as
the legally correct meaning.
Application
Introduction
These models for making and interpreting law, which constitute the model for
forming law, are very helpful in working with law. Used properly, they can
guide us in the tasks of making and interpreting law, as well as associated tasks
such as writing and reading law.
Making Law
The model for making law performs two important tasks. It focuses attention
on the need to identify the options, the possible laws and the effects that each
law will cause. It also focuses attention on the reasoning process needed to
decide which option is preferred. This involves two fundamental tasks,
causation and evaluation.
This model assists the process of making law in several ways. In exposing the
process involved, the model identifies clearly the choices that a legislature
faces and the shape of arguments supporting those choices. It should,
therefore, help legislators and policy makers in their work. For the same reason
it should help the public to understand and debate proposed legislation.
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