effect is designated Effect X to represent the effect that would be sought by
any of the three means of interpreting statutes by reference to policy, namely
Effect XLL
(legislative legitimacy), Effect XJL, (judicial legitimacy) and Effect
XMD (metademocracy).
Step: (2) Match the Effect. Match this effect in the list of effects that the
various meanings of the ambiguous provision will cause. Hence the court has
to find the effect that matches Effect X. In the absence of a precise match one
has to take the best or closest match, which is only an approximate match.
Step: (3) Find the Meaning. Identify the meaning that produces this
matching effect. This is the meaning that the policy argument supports.
These three steps can be illustrated with a diagram in the following form:
Meanings
Effect of Meanings
Effect of Policy
Meaning 1
Effect 1
Meaning 2
Step 3
Effect 2
/˜
Step 2
Effect X
Step 1
Meaning n
Effect n
Figure 4.7 Meanings, Effects of Meanings and Effects of Policy
This is how the diagram represents the tasks:
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Step 1 is to ascertain the desired effect. This is labelled Effect X.
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Step 2 is to match this effect with an effect in the list of effects
caused by the meaning of the ambiguous provision. For the illustration we
assume that Effect X matches Effect 2. There are two possibilities. (a) In the
best case Effect X in the column “Effect of Policy” perfectly matches (that is,
is the same as) Effect 2 in the column “Effects of Meanings”. Thus Effect X
Effect 2.
(b) In the second best but still acceptable case, Effect X
approximately matches Effect X2 (that is, is like but not identical to Effect 2).
Thus Effect X ˜
Effect 2. Effect X is set out on the same line as Effect 2 to
highlight these relationships.
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Step 3 is to ascertain the meaning of the ambiguous provision that
causes this effect. It can be seen from the diagram that Meaning 2 causes
Effect 2. Therefore Meaning 2 is the meaning that the desired policy argues
for, or points to, as the legally correct meaning.
Rules
There are common law rules (or canons or maxims) that courts use for
interpreting law. Although these are called rules, they are mainly presumptions
about the policy behind the statute. They represent the possible, in some
circumstances even likely, effect and meaning that the legislature intended. In
other words, it is a suggested source of the policy behind the legislature.
However, since this is only a suggestion or presumption it can be rebutted by
an expressed or implied intention in the legislation.
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