Meaning n
Effect n
Figure 12.7 Meanings, Effects and Legislative Effects
Since the court is walking the road of metademocracy it chooses Meaning 2 as
the legally correct meaning of Statute X since this causes Effect M. Had it,
however, travelled the path
of legislative legitimacy, it would have chosen
Meaning 1 since this causes Effect X, the intended effect of Statute X.
Applying the Policy
Once the court has determined the policy it will deploy in deciding the case it
applies the policy. This entails a court doing three tasks. These are labelled
Step (i), (ii) and (iii) to accord with the notation in the table below. These tasks
are now described for the standard case where the court is concerned to
interpret by reference to effects. The alternative case where the court adopts a
meaning that the legislature has decreed is discussed below.
Interpreting by Effects
There are three steps as follows:
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Step: (i) Ascertain the Effect. Look at the statute that is being
interpreted and identify the effect that needs to be achieved. (a) Judicial
Legitimacy. For an elected court that wants to decide the matter for itself this
effect would be the best outcome as the court judges it. (b) Legislative
Legitimacy. For a court that seeks to implement the actual intention of the
legislature this effect will be the effect that the legislature intended. This effect,
of course, was determined by the policy reasoning that preceded the
enactment of the statute. (c) Meta-Democracy. For a court interpreting by
reference to notions of metademocracy the effect will be the effect that the
court judges to be the outcome or effect that the legislature would have sought
to achieve had it been functioning in a fully democratic manner.
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Step: (ii) Match the Effect. Look at the list setting out the effects
that the various meanings of the ambiguous provision will cause. Then find the
match with the effect that the court seeks to achieve. In the absence of a
precise match one has to take the best or closest match.
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Step: (iii) Ascertain the Meaning. Identify the meaning that
produces this matching effect. This is the meaning which the policy argument
supports.
These three steps can be illustrated with a diagram. For this purpose, assume
that court is interpreting a statute by reference to legislative legitimacy. This
court is interpreting Statute X that is intended to cause Effect X. For this case,
the three tasks are represented by the following diagram:
Meanings
Effects of Meanings
Effect of Policy
Meaning 1
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