What are the approaches taken by the judiciary to the interpretation and construction of english statutes?
how may i do this through a memorandum outlining and illustrating through case-law examples
Answers:
Four main rules of interpretation, Literal, Golden, Mischief, and Purposive. The Mischief and purposive are very similar and are often classed together. These rules are just theoretical and academic, and arent really used in practise because hte judge will use a combination.
Literal Rule. Obviously, means that they will take the statute literally, regardless of the outcome. Sometimes statutes arent worded very well, and so, as with in Fisher V Bell the judge did exactly what the statute said, though the outcome was the opposite of what the statute intended. This is good in a way because it leaves the law making to parliament and respects its sovereignty. On the other hand, it does lead to some odd verdicts. Also it puts too much strain on the law writers. If they are worrying about ambiguity other important points may not be covered.
Golden Rule. Basically the literal rule but with a little common sense. The judge will basically use the literal rule, but when it turns in a bad verdict, he substitutes words in, replaces others etc to reconstruct the sentence in a way that is easier to understand. For example in a bigamy case, the wording of the statute could have been construed as allowing bigamy, but the just reconstructed the sentence so it wasnt.
Mischief/ Purposive rule. This looks at what it was that parliament intended. It gives judges much more involvement in law making and recognises them as makers of law, rather than just interpreters of law. They look at the social implication of their verdict, the will of society, the circumstances of the case, look at what evil the legislation was meant to fix etc They can even use hansard following Pepper v Hart to see what the purpose of the legislation was. Lord Denning advocated this approach greatly and it is widely used on the continent, with legislation being drafted more broadly, allowing judges to 'fill in the gaps'
Looking back to my days of dodging Introduction to Law lectures, all I can recall are the literal, mischief and purposive rules.
The literal being that one should not look for any meaning other that which is contained within the letter of the law: the black-letter approach. Obviously this can be open to the allegation of a focus on form rather than substance which would defeat the pursuit the justice in many cases, hence the appeal of the latter rules.
The mischief and purposive rules are broadly similar. When using them, the judge should ask himself ''What was the mischief that Parliament sought to tackle when introducing this legislation?'' and construe the law accordingly. Again, with the purposive rule; the judge should ask himself ''What purpose did the legislature have in mind when introducing this statute?'' and so on.
In practice, the judge is likely to use a combination of these rules. After all, one could not seek a construction based upon a perceived purpose of Parliament that would do violence to the langauge of the provision in question.
As for the case law, it would be best to invest in an introductory text book for that.
P.S. I am sure one can tell that I am mind-numbingly bored in work to answer such a question!
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Answers:
Four main rules of interpretation, Literal, Golden, Mischief, and Purposive. The Mischief and purposive are very similar and are often classed together. These rules are just theoretical and academic, and arent really used in practise because hte judge will use a combination.
Literal Rule. Obviously, means that they will take the statute literally, regardless of the outcome. Sometimes statutes arent worded very well, and so, as with in Fisher V Bell the judge did exactly what the statute said, though the outcome was the opposite of what the statute intended. This is good in a way because it leaves the law making to parliament and respects its sovereignty. On the other hand, it does lead to some odd verdicts. Also it puts too much strain on the law writers. If they are worrying about ambiguity other important points may not be covered.
Golden Rule. Basically the literal rule but with a little common sense. The judge will basically use the literal rule, but when it turns in a bad verdict, he substitutes words in, replaces others etc to reconstruct the sentence in a way that is easier to understand. For example in a bigamy case, the wording of the statute could have been construed as allowing bigamy, but the just reconstructed the sentence so it wasnt.
Mischief/ Purposive rule. This looks at what it was that parliament intended. It gives judges much more involvement in law making and recognises them as makers of law, rather than just interpreters of law. They look at the social implication of their verdict, the will of society, the circumstances of the case, look at what evil the legislation was meant to fix etc They can even use hansard following Pepper v Hart to see what the purpose of the legislation was. Lord Denning advocated this approach greatly and it is widely used on the continent, with legislation being drafted more broadly, allowing judges to 'fill in the gaps'
Looking back to my days of dodging Introduction to Law lectures, all I can recall are the literal, mischief and purposive rules.
The literal being that one should not look for any meaning other that which is contained within the letter of the law: the black-letter approach. Obviously this can be open to the allegation of a focus on form rather than substance which would defeat the pursuit the justice in many cases, hence the appeal of the latter rules.
The mischief and purposive rules are broadly similar. When using them, the judge should ask himself ''What was the mischief that Parliament sought to tackle when introducing this legislation?'' and construe the law accordingly. Again, with the purposive rule; the judge should ask himself ''What purpose did the legislature have in mind when introducing this statute?'' and so on.
In practice, the judge is likely to use a combination of these rules. After all, one could not seek a construction based upon a perceived purpose of Parliament that would do violence to the langauge of the provision in question.
As for the case law, it would be best to invest in an introductory text book for that.
P.S. I am sure one can tell that I am mind-numbingly bored in work to answer such a question!
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