words, the court interprets Statute X in the manner that the legislature would
want it to be interpreted.
Broadly, for purposes here, there are two possible reasons for a court to
interpret in this way. First, it may do so of its own accord. In this case it does
not seem possible to mount an argument that the process of interpretation is
truly syllogistic because the court chooses this meaning when other choices
are open to it.
Second, the court may interpret law by reference to the underlying policy
because some rule (labelled a policy direction) requires that it do so. There are
several possible versions of a rule such as this. (i) One can mount an argument
that when interpreting common law there is a duty implied by good sense that
a court should proceed in this way unless the policy behind the rule is now
socially inapplicable. (ii) For interpreting statute law there is a common law
rule, the mischief rule which directs or at least encourages court to interpret
statutes by reference to their underlying policy.
114
And in some jurisdictions,
such as Australia, there are statutory provisions which unequivocally make this
approach mandatory.
115
Superficially, where there is a binding rule that requires law to be interpreted by
preformed policy the claim that interpreting by preformed policy constitutes a
syllogism seems correct. However, viewed from another perspective,
interpreting law in this way does not constitute a perfect syllogism. Instead, the
court is adopting and transmitting a choice that was made earlier in the
legislative process when the common law was made or the statute was
enacted. The legislature chose to pursue Effect X. To this end it enacted
Statute X. Hence when the court interprets Statute X in the manner best
calculated to achieve Effect X the interpretation is ultimately based on a
choice. This was the choice that the legislature made to pursue Effect X by
enacting Statute X.
Thus, viewed through a wide angle lens that bring into view the making of the
statute in question and the policy underlying this statute, the real effect of the
policy direction is not to remove the element of choice from the interpretation
of a statute. Instead it is to allocate the right to make the choice for interpreting
law to the legislature while at the same time denying that choice to the court.
This is done by imposing a duty on courts to abide by legislative policy when
interpreting the law.
___________________
114
Christopher Enright Legal Method Chapter 5 Model for Forming Law
115
Christopher Enright Legal Method Chapter 12 Policy
 |
 |
 |