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Essay: The rules of interpretation and precedent

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  • Subject area(s): Law essays
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  • Published: 4 January 2017*
  • File format: Text
  • Words: 1,285 (approx)
  • Number of pages: 6 (approx)
  • Tags: Statutory interpretation essays

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Essay plan:

Introduction: This paragraph lists the rules of the judicial interpretation of statues described in the core literature for this module, and highlights the importance of the decision maker.
Body: This section discusses the most widely used rules of the judicial interpretation of statues.
Section 1: The rule of literal interpretation:
Paragraph 1: Focuses on the rule of literal interpretation. It provides the definition of the rule and the example from the case law:
a) Example 1: The Queen v Judge of the City of London [1892]
Paragraph 2: Explains the rule of literal interpretation and how it should be addressed.
Section 2: The Golden Rule:
Paragraph 1: Focuses on the golden rule of judicial interpretation and presents an example from case law:
a) Example 1: Grey v Pearson [1857]
b) Example 2: Adler v George [1964]
Paragraph 2: Passage explains the Golden Rule and when this rule can be used to interpret the statutes.
Section 3: Mischief rule:
a) Example: Smith v Hughes [1960]
Paragraph 3: This passage explains the purposive approach of the judicial interpretation and its application followed up by examples from case law:
a) Example 1: Pepper v Hart [1993]
b) Example 2: Bulmer Ltd v Bollinger CA [1974]
Word count: 203

Question 1

Explain the rules of statutory interpretation. Give an example from case law to illustrate each of the rules.

One can find in literature the following rules of the judicial interpretation of statutes: literal interpretation, the golden rule, the mischief rule and purposive approach.

Given that the interpretation of the statutes of the Parliament is the absolute prerogative of the judges it is them who select what rule of interpretation is used. This reaffirms the real power of the judges in the legal field.

Literal rule

The rule of literal interpretation was created by the British jurisprudence of the XIX and the XX century and it is central to the work of judges on the interpretation of the statutes of Parliament. The rule of the literal interpretation says: “If the law does not contain any ambiguity, the words that make up the text of the law, should be given their ordinary, common usage and meaning, despite the fact that it could put the Court in a difficult position in terms of the requirements of law and justice.” According to Lord Esher in The Queen v Judge of the City of London Court [1892], “If the words of an Act are clear, you must follow them,even though they lead to a manifest absurdity. The Court has nothing to do with question whether the legislature has committed an absurdity. ”

In accordance with the rule of literal interpretation, it is considered that in the preparation the texts of the statutes of the Parliament, the law uses words taken in their common usage and meaning. If the legislator gives them some special value, then this should be expressly stated in the statute, and the court cannot give a special meaning at its discretion as interpreted concepts or filled in gaps.

Golden rule

The general formulation of the golden rule was given by Lord Wensleydale in Grey v Pearson (1857) he states that “in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”

The golden rule allows permissible interpretation of the literal meaning of the term, in view of other aspects of the statute such as its preamble, article titles, and punctuation. Nevertheless, the question of what degree of the absurdity needed for judge to refuse to use the literal rule and to apply golden rule remains open. This question is resolved on the basis of judicial discretion. That is why the golden rule in its broadest sense is used widely in order to select the most appropriate interpretation of ambiguous word. The example of golden rule case is Adler v George [1964] 2 QB 7.

Mischief rule

The oldest and most flexible rules is mischief rule. The mischief rule was established In Heydon’s Case in 1584. Mischief rule should be applied where there is ambiguity statute. This rule used to interpret the statute when when the statute was passed to remedy. The application this rule allow the judge more effective decide on Parliament intend. The example is case Smith v Hughes [1960].

Purposive approach

The purposive approach is modern version of mischief rule. It is more flexible than literal and golden rules an permitted the judges add or ignore the words. The purposive approach looking to see what gap might have existed in law previously, the judge are attempting to identify what Parliament meant to achieve.

However, an example of purposive approach admission is Pepper v Hart [1993] where Court of the House of Lords ruled that Hansard can be used as a tool that can clarify the meaning of unclear or ambiguous article of the statute – the judge may apply to the speeches of the respective speakers representing public or private bill. .

Purposive approach is used by courts since 1974 for the interpretation of acts of the European Union (EU) – the various European treaties and regulations, directives and decisions of this “supranational” organisation.

The purposive approach preferred in civil law and European Court of Justice.

In Bulmer Ltd v Bollinger SA [1974] Lord Denning said that the statutory interpretation must be consistent with EU Law: “But when we come to matters with European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute.”

Word count: 756

Question 2

Explain in your own words what precedent means.

In the broadest sense, it is considered to be a precedent: what happened in particular situation before and it is perceived as an example that explains how to proceed in a similar situation if it arises again. In the analysis of judicial precedent it is necessary to consider some of its features. Precedent is of unwritten character. It is expressed primarily in the precedent’s structure, which consists of two parts: ratio decidendi and obiter dictum.

In some cases, the judge will consider the previous judicial decisions as the substantive grounds to take a decision on the case. Alternatively, the judge must take exactly the same decision, which was adopted in a similar case in the past if he cannot prove conclusively that a different decision should be taken. Finally, the judge must take exactly the same decision that has been taken in a similar case in the past, even if he can find a strong case that it is better not to do that.

The court is obliged to follow the decisions of higher courts handed down earlier in a similar case, but the higher courts are obliged to follow their same solutions; example 1.

A judge cannot refuse to examine the case only on the basis that the appropriate legislation in this case is still pending. Only the principle of justifying a judgment is a mandatory part which serves as a precedent for future judges. Do not put the basis for sentencing opinion, which could be expressed, regardless of the sentence, or vice versa, as appropriate to him, not a judicial opinion: example 2.

In the case where the judgment is not justified by one major, general rule, but two arguments, both arguments are required to be recognised when considering the future similar cases. The administration of justice should be based on the fact that similar cases should be dealt with in a similar manner: example 3

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