First, there is an approach which is feasible if judges are elected. It is called
elected legitimacy of the judiciary or judicial legitimacy. In this case the court
exercises its own value judgment as to the best meaning. It does so on the
basis that being elected gives it a mandate to do so.
To interpret the provision rationally, the court calculates the net benefit of each
effect by reference to values of its own choosing. To explain and illustrate this,
assume that the court determines that Net Benefit X possesses the greatest
value. Now Net Benefit X is the net benefit of Effect X which is the effect
caused by Meaning X. Meaning X, therefore, causes the best outcome and is
the meaning that the court should pronounce as legally correct.
Second, there is an approach based on the fact that the court is interpreting a
statute enacted by a democratic legislature. This approach is referred to as the
legitimacy of the elected legislature or legislative legitimacy. When a court
adopts this approach it abides by the value judgment of the legislature which
enacted the statute. It does this by interpreting the statute to further the
intention of the legislature when it enacted the statute.
To explain this further, assume that the legislature passed Statute X in order to
achieve Effect X and the court has to interpret Statute X. There are three
possible ways in which the legislature can communicate its intention:
(1)
The legislature has somehow indicated that Effect X is the effect that it
sought when enacting this provision. In this case the court should interpret the
provision in manner that will bring about Effect X. This means that it has to
choose as the correct legal meaning of the provision the meaning that causes
Effect X. On our labelling system this is Meaning X.
(2)
The legislature has somehow indicated that Meaning X is the meaning
that it intended. In these circumstances also the court has to declare Meaning
X to be legally correct. Then, whatever effect Meaning X will then cause will
just happen. It is of no direct concern to the court.
(3)
The legislature indicates both a meaning and an effect. There are two
possibilities here. (i) As the court judges it, the intended meaning causes the
intended effect. In this case there is no problem and the court declares the
intended meaning to be legally correct. (ii) As the court judges it, the intended
meaning will not cause the intended effect. In this case the court has a dilemma
because it can implement only one aspect of the legislature’s intention – either
the meaning or the effect. If it chooses the intended meaning the intended
effect will not happen, while if it seeks to implement the intended effect it will
have to choose as the legally correct meaning some meaning other than the one
nominated by the legislature. In this case the better course is to seek to
implement the effect because, as has been said several times, rationally
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