By this means the statute is actually interpreted by reference to a real choice. It
is just that the choice can be obscured because it is made up the line by the
legislature when the statute is first made. As explained in later discussion,
every policy that underlies a statute impounds two choices, the choice as to
which effect the statute will cause and the choice of the values that were
deployed in judging this effect to be the best that the legislature could
achieve.
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Subsequently the choices that the legislature has made in this regard
are transmitted to, and imposed on, the court by the relevant legal direction to
interpret laws by reference to their underlying policy.
Precedent
Assume that a court is interpreting law by reference to a precedent. This
precedent is clearly on the issue and is binding on the court. If the
court
interprets the law by reference to this precedent, on the surface the reasoning
is syllogistic. The precedent
provides an apparently
clear, simple and
incontestable answer to the question of how the law should be interpreted.
However, as with interpreting law by reference to preformed policy, the view
changes dramatically when looked at with greater breadth. While in the short
terms the court is applying the precedent, the precedent itself is based on a
choice. Consequently, on this wider view, the process is not syllogistic since it
entails two choices. One is the choice of the rule that constitutes the
precedent. The other is the choice of the rule of stare decisis that makes the
precedent binding. Consequently, seen it its full light, reasoning by reference to
precedent is not truly syllogistic, only apparently so.
Ascertaining Values
One argument for the natural law view that human conduct should be regulated
by a comprehensive and eternal set of values is that these values can be known
by reason, one form of which is deduction. This argument is considered and
rejected in discussion of choice of values.
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Ascertaining Causal Laws
Making and interpreting law involve causation, which relies on causal laws. A
law and an interpretation of a law cause effects.
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Natural science, and often
social science, ascertains and attempts to prove the existence of causal laws
by a process called the hypothetico-deductive model, which,
as the label
indicates, includes the process of deduction. However, the process also relies
on induction. How these two sources of reasoning are used in establishing,
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Chapter 10 Policy
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Chapter 19 Choice of Values
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Chapters 13-15 and Chapter 30 Model for Forming Law
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