Chapter 16
Decision
Introduction
Making Law
Interpreting Law
In the race to the bottom that passes for policymaking in New South Wales,
the Government has nosed out the Opposition in bringing a crowd-pleasing
change to the Jury Act.
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Introduction
Step 3, the final step in the model for forming law, entails making the decision
to choose one of the options and, of course, implementing that decision. (i)
For a legislature, the final decision
is the making of a statute. (ii) For a court
there are two possibilities. Where a court is making common law the final
decision involves determining the content of the common law rule then
pronouncing this as a new common law rule. Where a court is interpreting law
the final decision first entails deciding that one meaning of the ambiguous
provision rather than the others is its correct meaning (or possibly by deciding
that two or more meanings are correct). Then the court pronounces this in the
judgment as the legally correct interpretation of the rule. These decisions – the
formulation of a common law rule or the interpretation of a law -
should be
stated by the court in its judgment. They are the ratio decidendi of each case
and become precedents for future cases.
To explain Step 3 of the model this chapter revises the overall process of
decision making and thus gives an account, albeit brief, of Steps 1 and 2. By
this means it illustrates the process of making and interpreting law on a wide
screen. Specifically it shows the final decision from the perspective of the
process leading up to it.
Essentially the decision rests on reasoning with policy. This is based squarely
on an application of the net benefit rule, which is the fundamental rule for
making
and interpreting law.
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The best law or interpretation to make is the
law or interpretation that causes the best effect, and this is constituted by the
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Malcolm Knox “The case for the lone voice of dissent” The Sydney Morning
Herald
11 November 2005. The comment was made in discussion of the
Government’s proposal to introduce majority jury verdicts.
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Christopher Enright Legal Reasoning Chapter 11 Nature of Net Benefit
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