Legislature and Courts
Conventional terminology says that legislatures make statutes and courts
interpret them. Closer analysis, however, shows that interpretation is
really a
form of making law. In some cases, interpretation involves making law on only
a small scale. This occurs when a court has to resolve the question of which
of two or more specific meanings of a provision is legally correct. A good
example is the word ‘offensive’ which is a homonym and a homograph since
it hast two distinct meanings, aggressive and unpleasant.
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In other cases, though, interpretation involves legislating on a substantial scale.
In the extreme case this occurs when a legislature enacts a provision which
consists of a wide and open term such as ‘just and equitable,’ ‘reasonable,’ or
‘fair and proper.’ Expressions such as these bend, and grow or contract,
according to prevailing conditions. They authorise a court to take account of
the circumstances of the particular case and the prevailing social
circumstances when interpreting the provision. In so doing, courts legislate as
they lay down criteria or guidelines on a substantial scale in order to fill the
huge space that these provisions
create. So much is this the case that the
resulting case law appropriately bears the label statutory common law.
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Importance of Policy
Policy is important because it is the only proper method for making and
interpreting law. Law is the supreme social decision maker –
it is potentially
effective because it is backed by the state, and it is plentiful because each year
there pours forth a torrent of statutory and delegated legislation made or
authorised by the legislature. Thus, policy making is an important
field of
social inquiry because it is the reasoning process that underlies a major source
of power and influence in our lives.
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While the fundamental reason that lawyers need to understand policy is
because it should be the guiding light for making and interpreting law, there are
two other reasons. First, the work of some lawyers consists of making,
implementing and analysing policy.
Second,
policy is one of the major
gateways between law as a closed system and the social sciences. Policy
indicates the relationship between law and various social sciences such as
economics, politics and sociology. It is not surprising that in the model for
making policy a number of questions are raised relating to the social sciences.
Two of the questions are: How do we behave? What do we value? These are
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R v Smith [1974] NSWLR 576
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Christoher Enright Legal Method Chapter 2 Law
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See Simeon (1976).
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