three approaches which effect in the range constituted by Effects 1-n was the
best. Call this Effect X. Once the court has determined which effect is best it
will determine which meaning is best – the best meaning is the one that causes
the best effect. Call this Meaning X. When it has gone through this process in
Step 2, in Step 3 the court will declare in its published judgment that one
meaning from the range Meanings 1-n is the legally correct meaning of the
ambiguous provision. In our illustration this is Meaning X since it causes
Effect X, which is adjudged by the court to be the best possible outcome.
Predicting the Decision
Son I made a life, out of reading people’s faces,
Knowing what their cards were, by the way they held their eyes
512
Ultimately a judge reasons as he or she will to make their decision, although
most decisions fall within the range of rational and acceptable results. A lawyer
advising a client will normally endeavour to advise them on the likelihood of
success. This task, however, is made difficult because of two factors which
cause uncertainty.
513
First, the process of interpretation is just not a task of great precision. It
inevitably involves decision making with uncertainty.
Second, there is the human factor. Everyone has their side or their leaning. It is
impossible for us to be totally objective all of the time. In any case much
judicial decision making does not depend on pure reason. Consequently, a
constitution cannot prevent the judge’s own personal view, consciously or
subconsciously, from intruding and determining the question.
514
This means that a lawyer has a major problem when advising a client on a
question of interpretation. Interpretation is a very uncertain business.
To
interpret law a judge makes a choice. Since there is a choice, a lawyer cannot
know with certainty how a court will respond to the legal arguments put before
it. Nor do they know which human factors will also be at work and in which
way it will do their work.
There is also uncertainty with a legislature passing a statute, although generally
for two reasons the uncertainty is less of a problem than it is with a court.
First, legislation is easier to predict. Typically the proposed text of a law is
known
and legislators often announce in advance their stance on a particular
piece of legislation. Second, one of the big problems with judicial decisions is
that they operate retrospectively on the parties to the case (even if they also
512
Kenny Rogers, The Gambler
513
See Guthrie, Rachlinski, Wirstrich (2001), Heuston (1964)
514
Kirby (2003)
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