Rules of Statutory Interpretation - Essay Example

?RULES OF STA Y INTERPRETATION 'The Rules and Approaches that apply to sta y interpretation give too much latitude to the courts, and it seems there are no underpinning principles' Discuss the validity of this view, and consider the influence of the European Law in your answer After the parliament has passed an Act, it is upon the courts to apply the statute to a given case. As such, the judges are supposed to apply rules and approaches in the interpretation of the statute so as to ensure that the intention of a particular legislation is achieved. Besides, the judges have a role in developing constitutional principles in statutory interpretation and application of the common law.1 Generally, statutory interpretation entails the process through which the courts apply and interpret legislations. In order to find the intent and meaning of legislation, judges use various rules and approaches of statutory interpretation such as legislative history and the traditional statutory interpretation canons. The use of rules and approaches in statutory interpretation is necessary because of the following reasons: more often than not, words have more than one meaning; errors of omission or commission may have been committed during the drafting if the statute; words can prove to be imperfect means of communication; and, society may experience new developments that may render some words in the statute out-of-date since they can no longer cover contemporary situations.2 Rules and approaches to statutory interpretations have been developed by the judges; the Interpretation Act of 1978 provides basic definitions which are necessary during statutory interpretations.3 As a matter of fact, the main function of the courts is to interpret the Acts of Parliament; they have the role of attempting to establish the Parliament’s intention in passing of a particular Act and make a decision based on that intention. However, there is a view among legal scholars and practitioners that the rules and approaches that apply to statutory interpretation give too much latitude to the courts, and there seem to be no underpinning principles.4 It is in the light of this that this paper will focus on the rules and approaches that apply to statutory interpretation and discuss the validity of this view. In addition, it will consider the influence of the European Law in regard to this topic. As has been noted, the courts use rules and approaches in interpreting statutes. Conventionally, the judge will perform the following tasks during statutory interpretations: consider the legislative intent of the statute, objective meaning of the appropriate text, the traditional canons of the statutory interpretation, and the general purposes and policies behind the legislation among others.5 Based on those considerations, the court may determine how the statute could be interpreted to mean.6 However, the court may also determine that there is no sufficient reason to prefer one way of interpretation over the other. This is one of the reasons that make some legal scholars and practitioners to have the view that the rules and Approaches that apply to statutory interpretation give too much latitude to the courts.7 They argue that even though it is assumed that diligent application of these rules and approaches will enable the courts to be persuaded on which interpretation is legally preferable; in some cases the courts encounter frustrations while attempting to find the legally preferable interpretation of statutes. As a result, sometimes judges have to pretend that these rules and approaches have yielded decisive interpretation when in real sense they have not, a situation that encourages arbitrariness and obfuscation in making of judicial decisions.8 In order to effectively discuss the validity of the view that 'The Rules and Approaches that apply to statutory interpretation give too much latitude to the courts, and it seems there are no underpinning principles', it is important to understand what these rules and approaches are and what they entail. Basically, there are two main approaches that apply to statutory interpretation namely: the purposive approach and the literal approach. Under these approaches lie the rules that apply to statutory interpretation. The literal approach uses the ordinary and plain meaning of the words contained in the statute.9 Those in favour of this approach argue that the judges should give the words in the statute their literal meaning since their work is to apply law and not to make it. On the other hand, purposive approach considers words beyond their ordinary meaning. Its proponents argue that the approach enables the judges to decide what the parliament intended to achieve through the statute.10 As noted, since legislations rarely addresses all matters specifically and unambiguously, the courts have a critical role in interpreting how statutes should apply in a specific case. The literal rule, the mischief rule, and the golden rule are the three main rules of statutory interpretation that helps the courts to interpret legislations.11 The literal rule is based on the need for the courts to have a strict view of the words used in the statute.12 This rule should apply when the words in the statute are unambiguous and precise and thus only necessary to expound those words in their ordinary and natural sense. When this rule is applied it is believed that the words in themselves are declaring the best intention of the Parliament. This rule is supposed to show that the courts respect the supremacy of the Parliament. However, the critics of this rule are of the view that, in most cases, it may lead to absurdity hence defeating the very purpose of the statute and justice in general.13 The second rule that apply to the statutory interpretation is the mischief rule that states that the true interpretation of statutes should consider the following critical things: the common law prior to the making of the Act; the defect and mischief that was not provided for in the common law; the remedy that the Parliament resolved and recommended to the mischief; and, the actual reason of the remedy which should guide the judge to making a decision that advances the remedy and consequently suppressing the mischief.14 This rule demands that the courts should look at the intention of the Parliament and at the statute’s purpose. Compared to literal rule and golden rule, this rule has a narrower application since it can only be used in statutes that were enacted to remedy a certain defect in the common law. The critics of this rule argue that its main downside is that it is limited to common law only.15 The third and final main rule that apply to statutory interpretation is the golden rule. This rule is derived from literal rule and seeks to correct the absurdity that may be brought about by the literal rule.16 The rule is based on Lord Parke description in Grey v Pearson [1857) where he stated that the plain and grammatical sense of the words in the statutes should be adhered to, but in an event that they lead to absurdity or inconsistency, the plain and grammatical sense of the words should be modified to avoid further absurdity and inconsistency.17 It can thus be deduced that this rule requires that the literal rule be applied first, but if it results to absurdity and ambiguity the court should resort to different interpretation. The main requirement of the rule is that words in a statute should be interpreted in the context in which they are appearing. Majorly, this rule has two applications: the wider and narrow application. The wider application is applied when the court intends to avoid absurd, inconsistent, or repugnant outcome. On the other hand, narrow application is used where words in a statute have more than one meaning, hence the need to use the least absurd word.18 As it can be noted from the above discussion, the courts usually have a number of rules and approaches at their disposal that apply to statutory interpretation. As such, they have too much latitude on when making decisions regarding cases that relate to statutes. Besides, these rules and approaches make it seem as though there are no underpinning principles on statutory interpretations. This has resulted to judges encountering frustration while applying these rules and approaches to statutory interpretations.19 Moreover, there have been arbitrariness and obfuscation the making of judicial decisions due to the application of rules and approaches to statutory interpretation. In most cases, the courts have too much latitude as a result of the wide choice that it has on statutory interpretation. However, it should be noted that this does not happen in some other cases as these rules and approaches prove to be rigid and the courts are restricted to interpret the statute based on them only. It is important to note that the European law has in recent times had very significant influence on how the rules and approaches that apply to statutory interpretation are used. The United Kingdom courts have been made to interpret statutes in a way that harnesses and maintains the economic and social interest of the European Union.20 In regard to particular rules and approaches, the golden rule gives the court considerable latitude. It gives the courts multiple and alternate ways of interpreting statutes especially for words that are potentially conflicting and are competing in meanings. The rule provides the courts with various options of interpreting the statutes such as engaging their personal view in getting the correct meaning of the words and use of Hansard among other tools of statutory interpretation.21 In addition, mischief rule and purposive approach offers much more latitude than the others; it allows the court to look at the meaning of the words in the statute individually, the mischief that the statute was intended to remedy, the statute’s purpose, and the holistic meaning of the words. When applying this mischief rule and purposive approach, the courts are not restricted as to the methods they can use.22 Also, the courts can consider the present and past criminal issues and social conditions relating to the case and relate them to the statute relevant to the case. The courts are allowed to determine the policy concerns that had been raised previously and the policies as they are currently. The European rule has had significant effect in application of this rule.23 This is because English courts have an option of referring to the European Union policy and legislation when determining cases. It is no doubt that the European Court of Justice greatly influences the interpretation of the United Kingdom laws. This scenario has been brought about by the fact that the United Kingdom laws have remarkable importance in the European Union and are mostly interpreted consistently with the laws of other European Union states.24 Unlike golden and mischief rules that provide much latitude to the courts in statutory interpretation, literal rule seems to restrict the courts in their interpretation. The rule directs the courts in such a way that they have to interpret the words in statute by giving it ordinary and plain meaning. Literal rule does not allow the courts to apply meanings to words in a statute depending on the circumstances or give the words in a statute numerous meanings.25 Often, the rule does not use other statutory aids apart from the Oxford English Dictionary. As such, the court should just apply the meaning of the words as they are in the dictionary, that is, in their ordinary sense. In conclusion, from the discussion it is evidently clear that the assertion that 'The Rules and Approaches that apply to statutory interpretation give too much latitude to the courts, and it seems there are no underpinning principles' is valid to a greater extent. As has been noted, the fact that the courts have a discretion to use the main rules and approaches that apply to statutory interpretation when cases brought before them shows that they have been given too much latitude. Moreover, the golden and mischief rules, as well as the purposive approach tend to give the courts much more latitude as to how they interpret statutes. When applying these rules and approach, the courts are at liberty to look beyond the ordinary meaning and consider issues such as public policy. However, as observed, literal rule and approach does not give too much latitude to the courts as there seem to be underpinning principles regarding statutory interpretation. Lastly, there is a considerable influence of the European law in regard to the rules and approaches that apply to statutory interpretation in the United Kingdom. This is evidenced by the fact that statutes in the United Kingdom are interpreted in a way that harnesses and maintains the economic and social interests of the European Union. References Alder, J 2009, Constitutional and Administrative Law, Palgrave Macmillan. Barak, A 2007, Purposive Interpretation in Law, Princeton University Press. Beermann, J 2011, “Common Law and Statute Law in Administrative Law”, Administrative Law Review, Vol. 63, Issue 1, p. 1- 30 Bennion, F 2002, Statutory Interpretation, Butterworths Law. Cross, R et al. 2005, Cross: Statutory Interpretation, Oxford University Press. Cross, F, 2009, The Theory and Practice of Statutory Interpretation, Stanford University Press. Elmer, D, 1998, The Construction of Statutes, Butterworths, p. 74-75. Einer, E 2008, Statutory Default Rules: How to Interpret Unclear Legislation, Harvard University Press. Eskridge, William N.,,Jr 1999, "Norms, empiricism, and canons in statutory interpretation", The University of Chicago Law Review, vol. 66, no. 3, pp. 671-684. Foy, H 2010, “On Judicial Discretion in Statutory Interpretation”, Administrative Law Review, Vol. 62, Issue 2, pp. 291-327 Frickey, P et al. 2006, Legislation and Statutory Interpretation, Foundation Press. Gillespie, A 2007, The English Legal System, Oxford University Press. Jan, Z 2007, “The New Purposive Interpretation of Statutes”, Modern Law Review, Vol. 70, Issue 2, p. 294-306 Slapper, G and Kelly, D 2008, The English Legal System. London: Routledge-Cavendish. Solan, L 2007, Statutory Interpretation in the EU: The Augustinian Approach, Rochester, Rochester. Stefan, F and Finch, E 2009, English Legal System, Pearson Longman. Todd, R, 2010, “Statutory Interpretation as a Multifarious Enterprise”, Northwestern University Law Review, Vol. 104, Issue 4, p. 1559-1586 Read More