Options
Options for enacting a statute can be represented in a table in the following
way:
Statutes
Effects
Statute 0
Effect 0
Statute 1
Effect 1
Statute 2
Effect 2
Statute n
Effect n
Figure 11.1 Statutes and Effects
Here the range of possible statutes consists of Statutes 0-n. Statute 0 is the
option not to enact a statute and to leave things as they now are. As the arrow
between Statutes and Effects indicates, the relationship between statutes and
their effects is causation. Each statute causes an effect so that the range of
matching effects for Statutes 0-n consists of Effects 0-n. Effect 0 represents
‘things as they now are’ being the effect that Statute 0 causes.
Options for interpreting law have a similar structure. They are set out in the
following table:
Meanings
Effects
Meaning 1
Effect 1
Meaning 2
Effect 2
Meaning n
Effect n
Figure 11.2 Meanings and Effects
Meanings 1-n cause Effects 1-n. This set of options is similar to that for
statutes except that there is no Meaning 0 to match Statute 0. This is because a
court interpreting law usually does not have the option to refuse to interpret a
statute when the need to do so arises in a case.
Net Benefit Rule
In plain language, a decision to make or interpret law entails weighing “the
social and
economic costs and benefits” of the options before the legislature
or court.
306
These are weighed by applying the net benefit rule which is based
on a cost benefit analysis – essentially the option which yields the highest net
benefit is the best option and
the one which a rational legislature or court
should choose and implement.
307
___________________
306
McHugh (1999) p 48
307
McHugh (1999) p 46
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