ambiguity that might otherwise be overlooked, although this is commonly done
when the rule puts forward a presumption.
In a formal sense, these rules apply only to the interpretation of statutes. Partly
this is their purpose. Partly it reflects the difference in the nature of the text of
statute law and of common law –
a statute is often a comprehensive and
considered body of rules enacted simultaneously to achieve a desired end,
whereas common law is a collection of rules that generally have functional but
not formal connections. Nevertheless, it is conceivable that there could be
circumstances where a case could be made that the reasoning underlying a rule
is such that it could logically apply to common law, so that a court might use
the rule when interpreting the common law provision.
In describing these rules this chapter squares them with the notion that policy
is the only rational and legitimate form of reasoning when interpreting law. It
does so by explaining how these rules can be conceived as derivatives of
policy. This explanation takes the following form.
Some of these rules, most noticeably the maxims or canons,
press for a
particular type of meaning,
or for a meaning that
causes
a particular type
of
effect. This is the reason that these rules are sources of policy. They press or
promote one policy outcome over another. However, while the rules
encapsulate policy, this policy is not necessarily the authentic or conscious
policy of those who made the statute, but judicial policy enshrined in the rules.
These rules express and standardise presumptions or assumptions about the
intention of the legislature, or point out
possibilities. Typically the rules just
state a favoured, likely, plausible or possible view of the legislature's intention
based on notions such as common sense, convenience and justice. Clearly,
this is the means by which these rules fall under the policy rubric. Since policy
is the only justifiable means of reasoning when forming law these rules should
be deployed only in this fashion.
These rules function
as packaged policy in the following way. When a
legislature enacts a statute, it does so with the knowledge that courts will
interpret the statute by applying, or possibly applying, the rules. Thus, the
intended effect of the statute is determined by reading the statute according to
the rules of interpretation. For these reasons we can justify using the rules
because they are, as it were, "attached" to a statute, although they can be
displaced by a contrary intention displayed in the text of a statute. In short,
they constitute presumptive policy underlying the legislation but the
presumption can easily be rebutted by expressed words in, or implication
from, the legislation.
 |
 |
 |