corporations. Another is the practice of allowing large donations to political
parties, because there must be a likelihood that these are given in return for
some form of favourable treatment. A third problem is restrictions on access
to information because without information the people cannot make an
informed choice when they elect the legislature. The reply to these objections
is as follows. In principle representative government is the best achievable but
it is necessary to work hard to make it more representative.
Policy: Interpreting Law
When a court interprets a statute made by an elected legislature, there are three
means that can be used to do this in a way that is consistent with democracy.
These are judicial legitimacy (where courts are elected), legislative legitimacy
and metademocracy. These three approaches represent the three major sides in
a debate over what constitutes proper and legitimate interpretation of statutes.
What follows is a brief explanation of how these are deployed for interpreting
law.
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Judicial Legitimacy
In a jurisdiction where judges are elected, judges can claim some legitimacy
from their elected office in the same way that legislators do. On this basis they
can make up their own mind as to which interpretation of a law is best.
Legislative Legitimacy
A court can interpret law by reference to the policy or intention of those who
enacted the law. Here, the court claims legitimacy because it is simply fulfilling
the intention of a democratically elected legislature. This is called originalism or
the elected legitimacy of the legislature. It can also be labelled legislative
legitimacy as it is here.
A court may interpret a statute by reference to its policy for one or more of
three reasons:
(1)
The court chooses to do so of its own motion. Provided there is no
common law or legislative rule that prohibits this, a court is free to act in this
way. This does not require more discussion.
(2)
The court follows the common law rule called the mischief rule. This is
further discussed below.
(3)
The court is bound by a statutory rule to interpret statutes according to
the policy or intention of the makers. This is further discussed below.
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For a fuller discussion see Christopher Enright “A Model for Interpreting
Law” and Christopher Enright Legal Method.
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