Most lawyers and judges would cringe at the notion that courts develop policy when they interpret statutes. The legal profession indoctrinates that the role of the legislature is to enact policy through legislation and that it is for the courts to apply that law to resolve individual disputes. You would never hear a lawyer make an explicit appeal to policy when submitting statutory interpretation arguments before courts. Rather they invoke the intention of the legislature as the authority for their position. That the legal profession indulges in the fiction of a true or certain legislative intent in most cases speaks, at the very least, to a remarkable intellectual insularity.
In my last post, I outlined the different reasons for why courts must interpret statutes, the most common being the incompleteness of rules. Legislation has a number of inherent limitations which contribute to this incompleteness: it is brief, paradigmatic, prospective and, like all language, there is always at some indeterminacy. When unclear cases come before courts, it is simplistic, and wrong, to posit that courts merely apply the law. In fact judges must interpret a meaning which is often uncertain and contestable. They are, whether we like it or not, developing the policy of the legislature.
Of course it is not the policy of the court that is being propounded. Rather, judges are to look to the modern rule (the language, the various elements of context, the intention, and purpose) to see which particular interpretation conforms to the schematic policy behind the legislation. At the very least, courts are looking to find the general policy objectives set down by the legislature and then to give it effect, as best it can, to the case before it. Some interpretations of the law are more persuasive at revealing a presumed intent of the legislature in accordance with these policy objectives. If that is the case, then already the court has developed the legislative policy by authoritatively declaring the law in the way that is uncertain in terms of any discernible specific legislative intent about the case before it.
But for every case where we might find an interpretation that is more persuasive in terms of giving effect to a legislative policy, there is probably at least one in which there are two or more interpretations which are equally compelling. These are the cases of true ambiguity, which our Supreme Court has rightly defined as cases where there are two equally plausible interpretations giving effect to the legislation.
This is where we need to rethink how most judges respond to these cases. Currently, they usually do one of three things. First a judge may not acknowledge the ambiguity but, in the great adversarial tradition, make the case that there is only one true interpretation and they have devined it (while also discrediting the worthiness of any competing interpretation). This is obviously unhelpful.
Second, judges may apply tie breaking presumptions to resolve an ambiguity, I.e. that interpretations of penal statutes should be resolved in favour of the accused. This is defensible on the basis that the legislature should step in to resolve the ambiguity. However, the legislature only very rarely responds to individual cases in this country. And, in any event, it is only a matter of degree between the case where there is a more persuasive interpretation and the truly ambiguous case. We do not know for certain what the legislature would have decided in either case; rather judges develop the policy in the best way that gives effect to the policy of the legislation in either case. Why not also develop policy in the ambiguous case?
A third response (whether acknowledged as such or not) is for judges to develop the policy of the legislation. This usually takes the form of a pragmatic, or consequential, analysis of the merits of competing interpretations. At its best, this is a very thorough examination of competing policy considerations, e.g. the majority and dissent Supreme Court judgements in Harvard Mouse, the interpretation of which had only the most tenuous connection to legal issue in play (is a genetically modified organism a “composition of matter” under the Patent Act?). This third response is how it should be. Why not develop the best policy behind a law until such time as the Legislature gets around to amending it (which it never did in the Harvard Mouse case, or most other cases for that matter). And if we agree that this is how these cases should be resolved, then it augurs for more evidence and more intervenors in the court process to help flesh out the consequential analysis.