law, the best law on a subject and the best interpretation of a provision is the
one which achieves the best outcome. Logically, the best outcome among
options is the outcome that yields the highest net benefit.
319
Policy is the label
given to the reasoning process that is used to make decisions in this way.
Use of Policy
Rational analysis demonstrates that policy is the one and only legitimate source
of reasoning both for making law and interpreting law.
320
Ostensibly, though,
there are three other sources of reasons for interpreting law, precedent, the
rules of statutory interpretation and secondary sources. In truth, however,
these are not distinctive sources of reasoning; instead at best they are
derivatives of policy or packaged policy. Rationally they should be used from
this standpoint only, and not as stand alone sources of reasons. They have no
rational relevance except to the extent that they are used as sources of policy.
This is the approach adopted here. How this can be done is explained in
subsequent chapters.
321
Making Law
Parliament is a deliberative assembly of one nation, with one interest, that of
the whole; where, not local purposes, not local prejudices ought to guide,
but the general good.
322
Introduction
This discussion of how policy is used in making law explains policy by
locating it within the model for forming law. This should provide a clearer
understanding as to how policy works by putting it in its context.
Discussion focuses on the work of the legislature making statute law, not
courts making common law. There are several reasons for this. First, a
legislature makes policy on a far larger scale than a court. This large scale
enables us to look at policy in a broad way. Second, a court is hindered in
making policy because it has little capacity to engage in proper policy analysis
and consideration. Judges are not trained for it, procedures for courts do not
suit it, and courts do not have access to the necessary sources and
319
Christopher Enright Legal Reasoning Chapters 10-24
320
Christopher Enright Legal Reasoning Chapter 10 Policy. For some judicial
recognition of this see Oceanic Sun Line Shipping v Fay
(1988) 165 CLR 197 at 252
per Deane J.
321
See Chapter 13 Precedent, Chapter 14 Rules of Interpretation and Chapter
15 Secondary Sources.
322
Edmund Burke, Speech to the Electors of Bristol, 3 November 1774.
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