Step 1 Options
Step 1 is to identify the options. The options before the court consist of
Meanings 1-n of the ambiguous provision and the effect that each meaning is
predicted to cause. These consist of Effects 1-n.
Step 2 Reasons
Step 2 is the reasoning process in which the court engages to choose between
the options. Each effect yields a net benefit. However, there is an issue with
interpretation as to how the best net benefit is judged. Broadly, as explained in
the prior discussion of policy, there are three basic approaches –
judicial
legitimacy, legislative legitimacy and metademocracy.
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Each of these
potentially evaluates the net benefit of an effect by different means. Therefore
it is possible, although not inevitable, that each method will regard a different
effect as possessing the highest net benefit and thus constituting the “desired
effect” from its perspective.
For this reason, the diagram does not refer to net benefit as such. Instead in the
column “Desired Effects” it sets forth each of the three means of determining
net benefit, namely judicial legitimacy, legislative legitimacy and
metademocracy. 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 from which the court chooses when interpreting the provision.
To illustrate how this reasoning process works, let us consider each method in
turn:
(1)
Legislative Legitimacy. Here the court interprets a provision by
reference to its original policy. To do this the court identifies the effect that the
legislature wanted, and seeks to find the effect in the table of actual effects that
matches this effect. Here the court surrenders its judgment to the legislature. It
accedes to the legislature’s judgment as to which effect is best through having
the highest net benefit
(2)
Judicial Legitimacy. Here the court exercises its own judgment as to
which effect is best. Therefore it makes its own assessment of the net benefit
of each effect to determine which net benefit possesses the highest value.
(3)
Metademocracy. Here the court interprets the statute on the assumption
that in both composition and practice the legislature is not fully democratic. To
counter this defect, the court seeks to identify the effect that a properly
democratic legislature would have sought.
Step 3 Decision
Step 3 is the decision, which is made by choosing the option identified by the
reasoning process as
the best. In Step 2 the court had to decide by one of
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Chapter 12 Policy
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