explanations, this chapter argues
that making and interpreting law constitute
purposive action, which is action taken in order to achieve an outcome or
purpose. Now the rational way to undertake purposive action consists of
reasoning with policy because reasoning with policy incorporates
comprehensive rationality. When reasoning with policy, all options are put up
for consideration in order to choose the option which yields the best possible
outcome. This is why policy is the one and only rational method for making
and interpreting law.
Reasoning in this way is also called consequentialist reasoning, because law is
made and interpreted by reference to its consequences.
258
In philosophical
discussion it is also labelled teleological evaluation.
259
Often in scholarly
analysis of forming law, particularly interpreting law, consequentialist reasoning
is regarded as just one of several approaches to interpretation.
260
By contrast,
the approach adopted here is that policy based or consequentialist reasoning is
the only rational way to proceed.
There now follows by way of background an examination of the regulatory
choice between markets and laws that confronts the state. After this,
discussion moves to the main point to this chapter, namely the use of law as a
regulatory mechanism. This entails consideration of how policy is deployed
for making and interpreting law. Discussion of policy addresses several
matters - the levels at which policy can operate, the basis of policy, the nature
of policy and a model for using policy.
Against this background the text then considers a special problem –
the
existence of two additional methods of interpreting law, namely precedent and
the rules of statutory interpretation. On the surface at least, these seem to be
separate stand alone forms of reasoning which are both alternatives and rivals
to policy. On the analysis presented here, however, this dilemma can be
resolved because both of these means of interpretation can be conceived as
derivates of policy.
257
Aristotle (HC Lawson-Tancred ed) (1991) The Art of Rhetoric Penguin Books
is the classic text. See also Maher, Evans (1984), Mason (1989), Nussbaum (1985),
Saunders (1994), Wald (1995B).
258
The term "consequentialism" was coined by GEM Anscombe in her essay
"Modern Moral Philosophy" – see Anscombe (1958).
259
Chapter 18 Classification of Values
260
See, for example, Mason (2002) p 34.
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