most precise and accurate formulation it entails achieving the outcome that
yields the highest net benefit.
277
Nature of Policy
Policy is simply shorthand for the [legislature or] judge's attempts to make a
decision which will work out for the best.
278
Introduction
Policy entails “calculation of advantage"
279
encompassing both means and
ends since, in simple terms, it involves seeking the best ends by the best
means.
280
Consequently, a
rational decision is one where the actor takes the
decision which achieves the best result in terms of both costs and benefits.
They do this by achieving the best possible outcome, which is the outcome
with the highest net benefit. This will change the world in the best possible
way. This means that the outcome is as successful as human endeavour can
make it. It is impossible to do better than this or to be more rational than that.
Achieving the best possible result in this way involves two specific processes:
(1)
Causation. A legislature or court has to predict the effects that a law – a
statute or a common law rule - or an interpretation of a statute will cause. To
consider this it is necessary to look at cause and effects.
(2)
Evaluation. A legislature or court has to evaluate each of these effects to
determine which is best. That effect is best whose net benefit possesses the
highest value. To consider this it is necessary to examine the nature of values.
Cause and Effects
To reason with policy, it is necessary for a legislature or court to predict the
effect that each law or interpretation of a law will cause. There are three
matters to be considered – the concept of cause, the concept of effect and the
uncertainty that resides in predicting causation.
Cause
Cause is encapsulated and illustrated in the proposition: “X causes Y”. In
principle, the notion that one thing causes another is simple. In the case of X
and Y, Y happens, occurs or comes about because X caused it. There is,
however, as explained below great uncertainty in determining causation. In
relation to the possibility that X causes Y there can be uncertainty in relation to
either X or Y. We may not be sure whether X has caused Y, X has caused
something else or X has caused nothing. If it demonstrated that Y has
___________________
277
Faulkes (1985), See also Sunstein (1994) and Mitchell (1990).
278
MacAdam and Pyke (1997) p 285
279
Galanter (1997) p 386, citing Ashford (1997)
280
See Foulkes (1985)
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