Proposition 1: Changing the World
The end which the law will serve will dominate all other considerations.
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A rational legislature will not enact a law for its own sake. Instead it enacts a
law because it wants to achieve some purpose or outcome. Law is a “means
to an end,” not an end in itself.
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In this sense law is “a social instrument,”
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because it changes society. This is why the primary focus for making law
should not be the possible content of particular law. Instead it should be “the
goal” or end that this law achieves (although the content of a law is directly
relevant as to how likely a law is to achieve this goal or end).
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Putting this in the plainest language, law changes the world. Whenever a law is
made or interpreted the world changes in some
way. These changes may be
singular, on a small scale and of limited duration, but they may also be
manifold, on a large scale and of long term duration. Moreover, change tends
to cause more change so that the effects of a law (and even its interpretation)
can continue as a chain reaction, or more likely, multiple chain reactions,
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which become enmeshed with, and interact with, other social phenomena.
All of this means that the effects of law can be complex and thus hard to
predict accurately. Therefore, it is possible that a law may not achieve all of its
desired effects or not achieve them fully. It is also possible that a law will
cause effects that are undesired. Indeed in the worst case a law causes more
harm than good. In some cases this includes making the problem at which the
law was aimed worse rather than better.
But despite these shortcomings, when legislators make a law and when a court
interprets a law, they intend it to have a specific effect. This is why law is
categorised as goal seeking or purposive action.
Proposition 2: Best Outcome
This notion that the only good reason to make law is to change the world leads
to a conclusion about the basis on which law should be made and interpreted.
Since making and interpreting law change the world, they should aim to change
the world in the best possible way. This notion of seeking the best possible
way to change the worlds has been expressed in several ways. In the classic
phrase it involves seeking the aequum et bonum (the just and the good).
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In
a
simple analysis it entails pursuing the best ends by the best means. In the
___________________
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Benjamin Cardozo (1921) The Nature of the Judicial Process p 66
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Stone (1936) p 20
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McHugh (1999) p 42
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Benjamin Cardozo (1921) The Nature of the Judicial Process p 102
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Chapters 13-16
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Lord Devlin (1979) The Judge as Law Maker p 85
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