interpret by reference to a policy by either means. They can choose the
meaning that the particular policy requires. Or, a court can choose a meaning
that the court calculates is most likely to cause the effect that the policy seeks
to bring about.
Determining the Policy
Introduction
When a court interprets a statute made by an elected legislature, there are three
types of policy which it can utilise that are consistent with democracy. First, in
a jurisdiction where judges are elected judges can claim some legitimacy from
their elected office in the same way that legislators do. This can be labelled
elected legitimacy of the court
or judicial legitimacy. Second, a court can
interpret law by reference to the policy or intention of those who enacted the
law. This draws on the elected legitimacy of the legislature
and is labelled
legislative legitimacy. Third, according to some jurists a court should interpret
a statute by taking into account the defects in representative democracy that
exist in principle and occur in practice. Here the court interprets the statute in a
way that attempts to restores some of the forsaken democracy. This approach
is called metademocracy.
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A diagram will help to highlight the nature of this choice. The first column
shows the meanings, while the third column shows the effect of each meaning.
They are labelled here “Actual Effects”. This is done for emphasis in order to
contrast them with the “Desired Effects” in the fifth column. These desired
effects come from one of the three sources just mentioned –
judicial
legitimacy, legislative legitimacy and metademocracy. These are located in the
fifth column to reveal the possibilities for desired effects. However they are put
in square brackets to show that they are not at this stage matching one of the
actual effects. They are simply the options for matching depending on how the
court chooses to interpret the provision. This now is the diagram:
Meanings
Actual Effects
?
Desired Effect
Meaning 1
Effect 1
[Judicial Legitimacy]
Meaning 2
Effect 2
[Legislative Legitimacy]
Meaning n
Effect n
[Metademocracy]
Figure 12.4 Meanings, Actual Effect and Desired Effects
Judicial Legitimacy
In some jurisdictions judges are elected. Consequently judges can claim some
legitimacy from their elected office in the same way that legislators do. This
provides some argument that they are free to exercise their own judgment as to
the way to interpret a statute. If they were acting rationally, this judgment
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Schacter (1995)
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