conceived, enacting a statute constitute purposive action. It is all about
achieving some desired state of affairs.
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Third, there is an approach based on the fact that the court interpreting the
statute takes into account defects in principle and practice with representative
democracy. This approach is referred to as the metademocracy. On this
approach, the court treats as the best meaning the meaning which the
legislature would have chosen itself had it been properly democratic.
Step 3: Choosing an Option
This reasoning process in Step 2 identifies the best meaning of the ambiguous
provision. Consequently, the court chooses this meaning as the legally correct
meaning of the provisions and declares it so in its judgment.
Administering Law
Law is administered by the executive arm of government. It seeks to
implement the government’s legislative intentions. Executive government is for
the most part organised as a bureaucracy.
Max Weber (1864-1920) formulated the ideal type of bureaucracy.
299
This was
the form an organisation would take if it were perfectly and rationally
constructed. This ideal type was aimed at helping the bureaucracy best to
achieve its goals. So, for a government bureaucracy, it was the model for an
organisation that would best administer laws so that each law achieved the
purpose for which it was enacted. In other words, the bureaucracy was a
vehicle for purposive action, namely to achieve the goals set by the
legislature.
300
For Weber “bureaucracies are goal-oriented organizations
designed according to rational principles in order to efficiently attain their
goals”.
301
In Weber’s view, an ideal-type bureaucracy that seeks effective and efficient
achievement of its goals has the following characteristics:
(1)
Hierarchy of Authority. There is a chain of command that has directives
flowing down from superiors to subordinates.
(2)
Full Information. Subordinates gather information and deliver it to those
higher up in the hierarchy. Consequently any ensuing decision is an informed
decision.
___________________
298
An illustrative case is Braschi v Stahl Associates 543 NE 2d 49 (NY 1989). This
is discussed in Chapter 22 Social Choice: Interpreting Law
299
Elwell (1996)
300
Baldwin (1995) at p 34 refers to this as the transmission belt theory of
administration.
301
Elwell (1996)
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