Having calculated the net benefit of the effect of each statute, the legislature
determines which net benefit possesses the greatest value. Assume that this is
Net Benefit X. The legislature then identifies the effect that yields this net
benefit. In this example, it is Effect X that causes Net Benefit X. Then the
legislature identifies and enacts the version of the statute that causes this effect.
In the example, Statute X causes Net Benefit X. Consequently, the legislature
enacts Statute X because this produces the best outcome.
Interpreting Law
In a court case, when a provision in statute law or common law is ambiguous
the court needs to interpret the provision as part of the process of deciding the
case. Interpreting law is essentially making law but on smaller scale.
Consequently, reasoning with policy for interpreting law can be explained by
the same basic model as is used for making law. This discussion focuses on
interpretation of statute law; common law is fluid and amorphous so that
interpreting common law tends to merge into amending it.
Step 1: Identifying the Options
Options before a court that has to interpret an ambiguous provision
are
analogous to the options for passing a statute. They consist of all the possible
meanings of the provision and the effect that each will cause. These meanings,
Meaning 1, Meaning 2 and so on, the range consisting of Meanings 1-n. There
is, however, no Meaning 0 since a court ordinarily is obliged to interpret an
ambiguous provision when it is necessary to do so to decide a case.
Each Meaning causes an effect. Thus Meaning 1 causes Effect 1, Meaning 2
causes Effect 2 and so on. The range of effects consists of Effects 1-n.
Collectively it can be said that Meanings 1-n cause Effects 1-n. These options
can be conveniently set out in a table in the following way:
Meanings
Effects
Meaning 1
Effect 1
Meaning 2
Effect 2
Meaning n
Effect n
Figure 10.3 Meanings and Effects
Step 2: Evaluating the Options
Policy is used as the reasoning process for interpreting law, just as it is
deployed for making law. However, there are at least three types of policy that
a court might use when interpreting statute law.
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Chapter 30 Model for Forming Law
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