Law Involves Dealing With Words

Introduction

Much of the law involves a dealing with words, either spoken or written, and if there were no guide as to how words in a statute ought to be interpreted, it would probably be impossible to have disputed settled in a fair or reasonable manner. As a result, certain ‘rules’ have involved. These have been variously named the:

1. Literal rule
2. Golden rule
3. Mischief rule
4. Purposive approach

There are other rules of grammatical construction, such as, ‘what cannot be known by itself maybe known from its associates’, and ‘where a special provision is made in a special statute, that special provision would exclude the operation of the general provision in a general provision in a general law. The business of trying to construe what the others might have meant by the usage of one word or no single rule or approach can achieve the objective. In the end, the issue ceases to be about the application of any particular rule or approach, about promoting particular policies and giving effect to the overwhelming public interest.

Section 17A of the Interpretation Acts3 states that in the interpretation of the provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purposed or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

In keeping with the wide approach advocated by the Act, the subject of statutory interpretation will not here be examined by reference to specific rules, but more by the different broad approaches which judges have to use in order to arrive at the best possible solution to difficult problems and difficult statues.

Question 1

Statutory Interpretation is not a straight forward task for many reasons. There are three main rules of statutory interpretation for example: the literal rule, the golden rule and the mischief rule. The courts have to interpret legislation in order to resolve disputed over the meaning or scope of particular words and phrases. The judges exercise great care and meticulous precision in interpreting statutes. Because of the pressure of the time on those drafting legislation, the complexity of the subject-matter, the natural ambiguity of language, the passage of the time, and the fact that certain techniques (such as re-starting in different words or giving worked examples) are not available to the draftsman, it is not always clear whether or how a particular piece of legislation applies to a particular situation. It also acts as to ascertain the intention of the parliament. A court may refer to the content of the legislation in interpreting legislation. For example, in the Interpretation Acts 1948 and 1967 and Article 160 of the Malaysian Constitution assist courts in interpreting statutes and define common terms and phrases and give general directions.

Question 2

Judicial interpretations of statutes are also known as common law. It is very important part of our law; they actually make up a very small part of it. That’s primarily because we don’t always agree on what the statutes and other source of law like the constitution mean. As a result, interpreting what these laws say is largely a responsibility of our court system. For example, in a child custody case, a law might say that custody should be determined with the “best interest” of the child in mind. The child’s mother may think that means living with her with occasional visits to the child’s father, whereas the father might feel the child should live part-time with each parent. On each side, the parties have a different interpretation of what the law means and how it protects them.

As a result, in many cases judges must look at what the law says, and then try to determine what it means in light of the circumstances of the people before court, the ones involved in the lawsuit. When they do, they may create a document explaining or summarizing their rationale, called on ‘opinion’. Judicial opinions form what is known as “common law” or “case law”. In essence, case law is judge’s view of what the statute means when applied to the particular facts of the case before the court.

Common law is not written down in one place, like a statute, with bright line rule. Instead, we’ll find it in a judicial opinion or a series of opinion. Like statutes, these are grouped together, only not generally by subject matter- they’re grouped by date, in publication called “report” or “reporter”.

Because judicial interpretation is part of the law, judges have to consider not only what statute says, but what judges before them have said on the same issue. In other words, court opinions serves a authority or “precedent”, that other judges are sometimes this referred to as “binding” authority, because the judge in a subsequent case is bound to follow it.

Court are arranged in a hierarchal system that means that not every judge has to consider the opinion of every other judges in the country each time a similar issue comes up. However, when they do, have to rely on the interpretation of the other, they can turn to judicial opinion.

Question 3

The three main rules of statutory interpretation are the literal rule, the golden rule and the mischief rule.

Literal Rule

Literal rule is the primary rule which takes precedence over the other. Under this rule, the judge is required to consider what the legislation actually says, rather than consider what is might mean. In order to achieve this end, the judge should give words in legislation their literal meaning; that is, their plain, ordinary, every meaning, even if the effect of this to provide what might be considered an otherwise unjust or undesirable outcome.

Inland Revenue Commission v Hinchy (1960) concerned s 25(3) of the Income Tax Act 1952, which stated that any taxpayer who did not complete their tax return was subject to a fixed penalty of 20 pound plus treble the tax which he ought to be charged under the Act. The question that had to be decided was whether the additional element of penalty should be based on the amount that should have been paid, or merely the unpaid portion of the total. The House of Lords adopted a literal interpretation of the statues and held that any taxpayer I default should have to pay triple their original tax bill.

In fisher v Bell (1961),the court ,in the line with general contract principles, decided that the placing of an article in article in a window did not amount to offering but was merely an invitation to treat, and thus the shopkeeper could not be charged with ‘offering the goods for sale’. In this case, the court chose to follow the contract law literal interpretation of the meaning of ‘offer’ in the Act in question, and declined to consider the usual non-legal literal interpretation of word.(The executive’s attitude to the courts’ legal-literal interpretation in Fisher v Bell ,and the related case of Pardridge v Crittenden (1968), can be surmised from the fact that later legislation, such as the Trade Description Act 1968, has effectively legislated that invitations to treat are to treated in the same way as offers for sale.)

A problem in relation to the literal rule arises from the difficulty that judges face in determining the literal meaning of even the commonest of terms. In R v Maginlis (1987), the judges differed amongst themselves as to their literal meaning of the common word ‘supply’ in relation to charge of supplying drugs. Attorney General’s Reference (No 1 of 1988) (1989) concerned the meaning of ‘obtained’ in s1(3) of the Company Securities (Insider Dealing) Act 1985, since replaced by the Criminal Justice Act 1993, and led to similar disagreement as to the precise meaning of an everyday word.

An advantage claimed for the literal rules are that is promotes certainly, reduce litigation, and is constitutionally correct. However, against this it can be said that ignores the natural ambiguity of language and the inevitable imperfection of drafting. Furthermore, it assumes that the literal meaning is always correct one. While it is often so, it is not automatically so. Finally, it takes a outcome of the literal meaning is absurd or repugnant, then this must be what Parliament intended.

Golden Rules

This rule is generally considered to be an extension or a modification of the literal rule. The words are given their ordinary, literal meaning unless the outcome is absurd or repugnant, in which case a more suitable alternative meaning will be given. It is applied in circumstances where the application of the literal rule is likely to result in an obvious absurd result. The golden rule is best seen as a consistency principle. It doesn’t replace regular moral norms. If we want to apply the golden rule, we need knowledge and imagination. Therefore, if we act in a given way toward another, and yet are unwilling to be treated that way in the same circumstances, then we are violating golden rule.

GREY VS PEARSON (1857) “…in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the word is to be adhered to. Unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the word may be modified , so as to avoid that absurdity and inconsistency, but no farther.”

An example of the application of the golden rule is Adler v George (1964). In this case, the court held that the literal wording of the statute (‘in the vicinity of’) covered the action committed by the defendant who carried out her action within the area concerned.

Another example of this approach is to be found in Re Sigsworth (1935), in which the court introduced common law rules into legislative provisions, which were silent on the matter ,to prevent the estate of the murderer from benefiting from the property if the party he had murdered.

Main advantages claimed for the golden rule is that it avoid the most absurd or repugnant consequences of following a strictly literal approach. However, it does not make clear how absurd or repugnant the consequences have to be in order to justify abandoning the literal meaning. Nor does it indicate how a more suitable alternative should be selected.

Mischief Rule

This rule is one of the cardinal rules of interpretation when the words of a taxing statute are ambiguous and incapable of a literal This rule sometimes known as the rule in Heydon’s Case (1584), operates to enable judges to interpret a statute in such a way as to provide a remedy for the mischief that the statute was enacted to prevent. Contemporary practice is to go beyond the actual body of the legislation to determine what mischief a particular Act was aimed at redressing.

The rules of interpretation do not apply to the interpretation of EEC legislation. The European Communities Act 1972 provides that question of interpretation of EEC law must be decoded in accordance with the principles laid down by any relevant decision of the European Court. Therefore, although EEC legislation has the force of law in England and thus becomes part of English law, the court cannot interpret it by the methods which they apply to the main body of the English law.

The example usually cited of the use of the mischief rule is Corkery v Carpenter (1951), in which a man was found guilty of being drunk in charge of a ‘carriage’, although he was in fact only in charge of a bicycle. A much more controversial application of the rule is to be found in Royal College of Nursing DHSS (1981), where the court had to decide whether the medical induction of premature labor to effect abortion, under supervision of nursing staff, was lawful.

Purposive Approach

The term purposive approach refers to a mischief rule which judges sometimes apply when interpreting statutes. It is sometimes argued that the purposive approach is the same as the mischief rule because the courts are simply trying to find out the purpose of the act. The mischief rule however is different to the strict criteria set out in Heydon’s case. The purposive approach goes further by seeking to determine Parliament intentions in passing the act. It is been much more widely used since membership of the European Union in 1972 as EU law is much broader and not as detailed. The approach is teleological or consequentiality. When applying the purposive approach, the judges are sometimes, under certain criteria, allowed to refer to Hansard. The purposive rule could take this further and look at Hansard to determine Parliament’s real intentions when passing this act.

Main arguments for using a purposive approach are that it is realistic approach, acknowledging that the courts are being creative when they interpret legislation, and that they should exercise that creativity in a way that support the purpose of the legislation, thereby paying due respect to the sovereignty of Parliament. While giving greater weight to the purposive element is, therefore, the most sensible approach to take, it is not always easy for the courts to indentify the purpose of the legislation.

Question 4

There is a wide range of sources that may be considered by a judge to determining the primary meaning of statutory words and where there is ambiguity, in pointing the way to the interpretation that is to be preferred. There are many aids to interpretation and it divided into two:

1. Internal aids to interpretation
2. External aids to interpretation

In internal aids to interpretation, there are few ways to aids the interpretation such as

1. Heading, side notes and punctuation- The judge must be considered as a part of the context to help the interpretation.
2. Short title- There is some question whether the short title should be used to resolve doubt.
3. Preamble- When there is a preamble it is generally in its recitals that mischief to be remedied and the scope of the Act are describe. It is clearly permissible to have resource to it as an aid to construing the enacting provision.

External aids to interpretation:

1. Historical setting- A judge must be considering the historical setting of the provision that is being interpreted.
2. Dictionaries and other literary resource- Dictionary are commonly consulted as a guide to the meaning of the statutory words. Textbooks in law may also be consulted in a judgment.
3. Treaty and International Conventions- There is a presumption that Parliament does not legislate in such a way that the UK would be in breach of its international obligation.
4. Parliamentary resources- This is for the purpose to connect with interpretation of statutes. The prohibition covered such resources as a report of debated in the House and committee, and the explanatory memoranda attached the Bills.

Conclusion

In a nut shell, there are four rules in the interpretation such as literal rule, golden rule, mischief rule, and purposive approach can apply and depend upon the nature of the ambiguity or the content in which it arises. Statutes require interpretation because they cannot be communicated except by words. Without these rule, judicial interpretation can not be done. Therefore, the interpretation of statues plays an important role to ascertain the intention of the Parliament can run smoothly nowadays. It can be describe written laws passed by the legislature and by delegating this power to an authority or instrumentality. Therefore, the word is also use to describe the whole body of enacted laws. In order for consistency in interpreting the meaning of legislation, court must choose the proper and suitable rule or approach in order to resolve ambiguity appearing in statutes.

References

1. Sharifah Suhanah Syed Ahmad, Malaysian Legal System, 2nd Edition, LexisNexis, 2007.
2. Tony Dugdate, Stephen Jones, Micheal Furmston Michael P, Furmston & Christopher Sherrin , ‘A Level Law’ ;4th Edition, LexisNexis, 2005.
3. Kelly, D. Holmes, A and Hayward, R, Business Law, 5th Edition, Routledge Cavendish, 2006.
4. Accessed online for reference http://legal-directory.net/English-law/interpretation-mischief-rule.html, 13/11/2009.
5. Accessed online http://chestofbooks.com/business/law/Legal-Method/Chapter-VI-Judicial-Interpretation-Of-Enacted-Law.html, 14/11/2009.