resources.
323
Third, statute law is by far the major source of law making.
Common law is made only occasionally. Fourth, in any event the underlying
thinking processes described here for statutes will be similar to those for
common law.
Step 1: Options
Policy is deployed in the task of choosing between the options that are before
the legislature. These are identified in Step 1. Therefore to understand how
policy is deployed it is necessary to survey these options, which can be set
out in a table:
Statutes
Effect
Statute 0
Effect 0
Statute 1
Effect 1
Statute 2
Effect 2
Statute n
Effect n
Figure 12.1 Statutes and Effects
As this table shows, each statute will cause an effect. Effects are relevant
because policy is directly concerned with the effect that each statute causes -
policy involves enacting the statute which brings about or causes the best or
most valued effect. Trying to predict, as best one can, the effect that each
version of a statute will cause if enacted is, however, not a precise undertaking.
So in that sense there is generally a degree of uncertainty about effects.
324
Step 2: Reasons
So many MPs now are so different, in style and attitude. They are younger,
more arrogant, more the product of political machines, more conditioned by
the increasingly loutishness of parliamentary proceedings, more insulated
from real people, less shaped by real life experiences, less representative of
the voters they are supposed to be serving.
325
Step 1 of the model identified all of the options before the legislature –
the
various possible versions of a law on a topic and the effect that each law will
cause. Step 2 in the model for making law now involves formulating reasons to
enable the legislature to decide between the options.
323
This is one reason that explains why judge made law is sometimes bad
law. The most glaring example is the creation of the tort of negligence by the
House of Lords in Donoghue v Stevenson [1932] AC 562.
324
Christopher Enright Legal Reasoning Chapters 13-16
325
Alan Ramsey, “The decline and fall of Parliament” Sydney Morning Herald,
27 May 1998. The article comments on the members of the parliament of the
Commonwealth of Australia.
 |
 |
 |