Chapter 16: Strategic rules informing decisions
So much for liability rules. These are the rules according to which disputes about activities or events in the past are determined. Strategic rules are concerned with future activities. Strategic rules either indicate or mandate the direction of decision-making or indicate or mandate the methodology according to which decisions are made. In this chapter we focus upon rules of competence: those rules that enable decisions to be made for the future. Often these rules confer open-ended discretions about what to achieve and how to achieve it. But even an open-ended discretion is limited by the context in which the decision is made. The focus of this chapter is how judicial institutions respond to the exercise of relatively open-ended discretionary powers. But before doing so, let us consider three cases from jurisdictions in Australia that demonstrate the difference between liability rules and strategic rules. Section 16(1) of the Clean Waters Act 1970 of the state of New South Wales in Australia stated: A person shall not pollute any waters. A contravention of this provision constituted a criminal offence. The grammatical structure of the sentence is simple: a subject, a verb and an object. The verb ‘pollute’ was defined in the Act. One of the definitions was that pollute means to introduce into waters any matter so that ‘the physical, chemical or biological condition of the waters is changed’. In this way to pollute is to engage in an activity – introducing into waters a matter – that has a consequence. The consequence is the changed condition of the waters.
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