The courts play pivotal roles as far as justice is concerned in any given country. In addition to the implementation of law of the land, thy act as a link between the various arms of the government; hence the power balancing factor. Solving conflicts is one of the roles that have been solely accorded to courts. Among such conflicts is the interpretation of law, something that has become common in the modern society. In most civilized societies, law-making lies in the hands of parliament. However, sometimes parliament creates complex laws, and their meaning become a source of controversy because they tend to have different meanings based on the perspectives of different people. Therefore, it is the responsibility of the court to interpret the meaning of laws that have been created by parliament to solve any controversy on the same. One of the major issues encountered by judges is deciding what parliament meant by a certain piece of legislation. In interpreting laws, particularly the acts of parliament, judges use various rules and approaches. To the end, the paper will be focusing on assessing the rules and approaches taken by judges when interpreting acts of parliament. Particularly, focus will be placed on three main approaches: literal, purposive, and integrated.
The Literal approach, also known as the constructionist approach, is one of the common strategies applied in interpretation of acts of parliament. In fact, it is the first approach that is taken into consideration before the other approaches are considered. This means that it is the primary rule in law interpretation, and always takes precedence over other methods of interpreting laws. According to the literal rule, words and phrases should be taken to mean by the courts in their conventional sense. Furthermore, the conventional rules of grammar and punctuation should hold. Therefore, when this approach is applied and the clear meaning is evidence, then the rule holds and the court will not be required to go into details of establishing whether the act in question signify what was intended by the legislature, in this case parliament. A point to note is that according to this approach, the intention of parliament is judged “not by what is in its mind, but by the expression of that mind in the statute itself” The literal rule or approach has been used in various instances. A good example was in the case of Whitely v Chappel (1868) LR 4 QB 147; where the defendant, after voting in the name of a death person, was declared not guilty of personating offense. Other examples include Fisher v Bell [1961] 1 QB 394, and R v Harris (1836) 7 C & P 446. In Fisher v Bell (1961), under the Restriction of Offensive Weapons Act 1951, it was illegal to offer knives for sale. The defendant exhibited in his shop window flick knives together with their prices behind it. Although he was initially charged with the offense, he was acquitted following an appeal. It was ruled that the defendant had not offered the knives for sale. According to the contract law, the display is not an offer for sale, but an invitation to treat. In this case, it is the customers who make offers.
It is also important to note that two subsidiary rules are involved in the literal approach: The noscitur a sociis rule, and the ejusdem generis rule. According to the noscitur a sociis rule, a word’s meaning is defined by its context. On the other hand, ejusdem generis rule states that the meaning of a general term should be determined from the specific terms preceding it. This subsidiary rule was clearly demonstrated in Powell v Kempton Park [1897] 2 QB 242, when it was concluded that the Tattersall’s ring is not included in “are all indoors”, whereas house, room, office are.
The main advantage of this rule is certainty. The main role of the judge is to apply the law, and following the will of parliament which makes the laws. It also helps in upholding the sovereignty of parliament, hence the recognition of parliament as the absolute law maker. Besides, the approach upholds the separation of powers. However, the rule has a major disadvantage in that sometimes it can be harsh. Particularly, in some cases it is likely to promote absurdity, especially assuming that the act was perfectly drafted when actually human error is evident. Besides, some words have multiple meanings and it makes the applicability of this approach complicated. The other disadvantages of the literal approach include: leads to injustice, undermines the confidence of the public in law, and creates obstinate precedents which may take remarkable parliamentary time in correcting the same.
The Golden Rule, also known as the integrated approach, is another rule that is commonly applied in law interpretation. According to this rule, the judge is required to look into the literal meaning of a phrase or word, but is allowed to depart from this normal meaning to avoid absurdity. Actually, the Golden Rule was created to deal with the short-comings of the literal rule, particularly the absurdity that arises from this rule. A point to note is that two approaches are applicable in this rule: the narrow approach, and the broader approach. As mentioned above, the literal rule always is considered first, and the golden rule could only be applied in case upholding the literal rule is likely to lead to inconvenience, absurdity, or inconsistency.
A good example of this rule in action, a narrow approach, is in the case of R v Allen (1872) LR 1 CCR 367. In this case, the defendant got married to a second wife, which was against the Offences Against the Person Act 1861. He argued that he did he had not violated this act because it was impossible to be legally married twice. Under the literal meaning, the word ‘marry’ made it an impossible offense. The court had to determine whether ‘marry’ means to getting married to another individual or it means going through a marriage ceremony. To avoid absurdity, the court ruled that in favor of the second meaning, which made the defendant guilty of the offense. In the broader approach, the Golden Rule was applied in the case of Re Sigsworth [1935] 1 Ch 98. In this case, a son killed his mother and according to the Administration of Justice Act 1925, the son should have inherited his dead mother’s estate. The literal rule was clearly applicable in this case because there was no ambiguity with regard to the wording of this act. However, it could be absurd to award estate of an individual to his murder. Therefore, to remove this absurdity, the court ruled that the son should not be allowed to inherit the estate of his mother.
The main advantage of the Golden Rule is that it eliminates absurdity that arises from upholding the literal rule. It allows judges to correct errors made in the drafting of a statute. Furthermore, the decisions made by the judges tend to be in line with the intentions of the legislators. It also eliminates instances of injustices that tend to be eminent when using the literal rule. Moreover, it promotes common sense to law. However, the Golden Rule has significant disadvantages. First, it allows judges to either add or modify the meaning of statutes, which makes them law makers. This is seen as an infringement of power separation because the role of making laws is the sole responsibility of parliament. Second, judges do not have the power to intercede for pure injustice in situations where there is no absurdity. Third, the Golden Rule lacks clear guidelines on when it can be applied. Furthermore, absurdity in any given case differs from one judge to another, which implies that an outcome of a given case would depend on the judge, rather than the law. Lastly, predicting when the rule would be applied by the court is difficult, which makes it challenging for the lawyers and the people advising their clients.
The third approach, and perhaps the last approach, is the Mischief Rule, also known as the purposive approach. The mischief rule is one of the oldest approaches of interpreting laws, having its basis on Heydon’s Case (1584). In this approach, the main objective of the court is to determine the intention of the lawmaker in a given piece of legislation. It is a relative approach of interpreting laws, and tries to determine the wrong or mischief that the law intended to rectify. According to this approach, four factors are taken into consideration while interpreting laws. First is assessing the previous existing laws before the Act was passed. Second is identifying what was wrong with the previous law. Third is to assess how parliament envisioned improving that rule based on the statute in contention. Last is applying the findings in making a ruling in the case before the court.
One of the examples where this approach was put into practice was in the case of Corkery v Carpenter. [1951] 1 KB 102. The defendant was judged and imprisoned for a month for being in charge of a bicycle in public while drunk. He was found pushing his pedal bicycle while drunk, and was charged based on the Licensing Act 1872. However, when the act was enacted, in 1872, no reference was made to bicycles. Using the Mischief Rule, the court came to a conclusion that the Act was intended to deter individuals from using any kind of transport on public highway while drunk. In this case, it was evidence that the bicycle was a form of transportation, and the defendant was correctly charged.
In yet another example, Smith v Hughes [1960] 1 WLR 830; the Street Offences Act 1958 made it illegal to ‘solicit in a street’ for prostitution purposes. The defendant, a prostitute, from a building via the window, tried to lure men from the street. According to this Act, it is evident that the defendant had not committed an offense. However, the court based on the mischief approach ruled that the intention of the Act was to prevent soliciting of men, notwithstanding where the women were located. Hence, they were held guilty based on this Act.
The Mischief Rule has two major advantages. First it closes the loopholes that are likely to be witnessed in the literal rule and the golden rule. Second it facilitates dynamism in law in the sense that it promotes the development of law and adapt to the changing needs of the society. However, this approach has various disadvantages. For instance, like in the case of the Golden Rule, it allows judges to modify law, which is the responsibility of parliament. This is seen as an infringement of power separation principle. In addition, judges are likely to include their own perspectives, a sense of morality and preconceptions to a case.
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