the “Desired Effects” in the fifth column. The equivalence sign (
) in the fourth
column indicates that interpreting law involves matching the desired effect with
an actual effect. However, there is an alternative, namely that in practice the
best actual effect is not the equivalent of the desired effect but is an
approximation. This is indicated by the “approximately equal to” symbol (˜).
These desired effects come from one of the three sources just mentioned –
legislative legitimacy, judicial legitimacy and metademocracy. These are located
in the fifth column to reveal the possibilities for desired effects. However they
are put in square brackets to show that they are not at this stage matching with
one of the actual effects. They are simply the options for matching depending
on how the court chooses to interpret the provision. Here now is the table:
Meanings
Actual Effects
/˜
Desired Effect
Meaning 1
Effect 1
[Legislative Legitimacy]
Meaning 2
Effect 2
[Judicial Legitimacy]
Meaning n
Effect n
[Metademocracy]
Figure 4.6 Methods of Reasoning for Interpreting Law
To explain how a court uses the policy, it is necessary to return to the options
before a legislature that is about to enact a statute on a subject. It has before it
the option to enact any statute in the range Statute 0-n that causes Effects 0-n.
Assume, for this illustration, that the legislature enacts one
of these statutes,
which we label Statute X. Now on our analysis of interpretation there are three
views on the effect that a court should achieve when it interprets Statute X:
(1)
It could seek to achieve the actual effect that the legislature intended
(legislative legitimacy). This effect is labelled Effect XLL.
(2)
It could seek to achieve the effect that the court judges as best (judicial
legitimacy). This effect is labelled Effect XJL.
(3)
It could seek to achieve the effect that the court judges the
legislature
would have chosen had it been properly democratic (metademocracy). This
effect is labelled Effect XMD.
Thus there are three effects that a court might seek when it interprets Statute X
–
Effect XLL (legislative legitimacy), Effect XJL, (judicial legitimacy) and Effect
XMD
(metademocracy). These can be collectively referred to as Effect X.
While these three different approaches push for a different interpretation they
operate in the same way. For this illustration we will refer to Effect X as
collectively representing all or any of the three approaches.
To interpret by reference to policy a court has to take three steps. These steps
are as follows:
Step: (1) Ascertain the Effect. This is the effect that the court is seeking
to achieve when it interpret the statute. In this illustration, as explained, this
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