Chapter 10
Policy
Introduction
Levels of Policy
Basis of Policy
Nature of Policy
Model for Policy
Derivatives of Policy
Fundamental remains my belief that the law is neither occult, arcane nor
oracular, but to the contrary dedicated to the rational solution of social
conflicts through the legal process; that because law is only a means not an
end, it falls to be adjudged not by any internal standard peculiar to it as a
closed system, but by the degree to which it furthers relevant social ends;
that accordingly legal solutions or “rules” have to stand the test of
functional adequacy in terms of contemporary values – for short, that there
should be a twentieth-century reason for all rules, judicial or legislative,
with any pretence for survival.
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Introduction
Policy
Making and interpreting law are collectively referred to in this book as forming
law. There is much discussion about the nature of these tasks, especially for
interpreting law, as illustrated by the many different fields which jurists invoke
when trying to explain how it functions such as logic,
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epistemology,
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artificial
intelligence,
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reason,
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institutional
imagination,
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science,
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practical
reasoning
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and
rhetoric.
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In contrast to this diversity of
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Fleming (1977) p v
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Allen (1963A), Fernando (1991), Lloyd (1964), Bray (1979)
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Murhpy (1991)
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Sussking (1986), Marhno, Natali, and Sorci (1986)
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Lloyd (1964)
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Unger (1996)
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Bennion (1980B)
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The Stanford Encylopedia of Philosophy
defines practical reason in the
following way: “Practical reason is the general human capacity for resolving,
through reflection, the question of what one is to do”. For discussion of its
application to law see MacCormick (1983), Eskridge and Frickey (1987),
Nussbaum (1994).
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