Policy seeks the best achievable outcome. It is both rational to want the best
and not rational to seek anything less.
Policy: Making Law
Making law by reference to policy can be illustrated by the following table:
Statutes
Effects
Net Benefit
Statute 0
Effect 0
Net Benefit 0
Statute 1
Effect 1
Net Benefit 1
Statute 2
Effect 2
Net Benefit 2
Statute n
Effect n
Net Benefit n
Figure 4.5 Statutes, Effects and Net Benefits
Let us assume for the illustration that Net Benefit 2 is the highest net benefit in
the range Net Benefits 0-n. This is the net benefit of Effect 2, which is
therefore the best possible outcome that can be achieved. Now Statute 2
causes Effect 2. Therefore Statute 2 is the best statute to enact.
To explain this process further, when a legislature makes a law by enacting a
statute it decides for itself which of the possible statutes causes the effect that
possesses the highest net benefit. A legislature can do this and claim legitimacy
because it is an elected body that democratically represents the will of the
people. So, the legislature makes its own policy in that it makes its own value
judgment as to which effect is best, but it does so in a manner that represents
public opinion.
There are, however, some who criticise this view, claiming that the legislature
is not fully representative of popular will.
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One major argument is based on
Kenneth Arrow’s impossibility theorem, which demonstrates that, after some
plausible assumptions are made, it is not logically possible for the decision of
an elected legislature to be perfectly representative of the preferences of the
individual voters.
The reply to this argument is twofold. Elected legislatures are the best we can
do in this regard. During their term of office legislatures will be to some extent
beholden to public opinion as expressed in the media.
A second argument attacks not the principle but the practice. In the real world,
there are several factors that make representative government far less
democratic than it can otherwise be. One is the government mandate in many
countries that confers the right to broadcast on free to air television (one of the
main means of public communication) on a handful of privately owned
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Christopher Enright Legal Reasoning Chapters 17-22
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