Interpretation of Statutes by Judges - Essay Example

School: Topic: INTERPRETATION OF STATUTES BY JUDGES Lecturer: Introduction In a typical democratic governance system such as the one in the UK, the arms of government consist of the executive, judiciary, and legislature (Barenboim 2009, p. 45). In order to ensure separation of power, each of these arms has its roles and duties clearly defined to it. Each arm of government also has some level of power and authority attached to what it does. Among the three, the judiciary is the arm of government tasked with the interpretation and application of laws made in the name of the state (Cardozo 1998, p. 14). In the common law jurisdiction, the laws are made by the legislature, represented by the Parliament (Craig & de Búrca 2007, p. 132). This means that for autonomy of duty to prevail, judges, who are agents of the judiciary, are expected to interpret statutes by giving effect to the will of Parliament without amending statutes. However, in judiciary practice, statutory interpretation has been said to be subject to different approaches of construction, some of which give judges the powers to amend statutes when giving interpretations (McCloskey & Sanford 2005, p. 66). In this paper, two overall approaches to construction which are intrinsic and extrinsic interpretations are reviewed to have a deeper understanding as to whether in the interpretation of statutes judges simply give effects to the will of Parliament or amend status under the disguise of interpretation. Statutory aids to interpretation Gluck (2004, p. 1764) noted that statutory aids to interpretation come in two major forms which comprise the use of intrinsic material and extrinsic material. When judges use intrinsic aids, they use materials found within the statute being interpreted, whilst the use of extrinsic aids involve the use of materials anything not found within the statute (Bennion 1997, p. 10). Using extrinsic aids have thus been referred to as non-adherence to literalism as literalism involves the strict adherence to what is found in the statute (Sullivan 2006, p. 74). The Interpretation Act 1978 is one specific aid to interpretation. This is because as seen in Hutton v. Esher UDC 1973, the Interpretation Act 1978 provides that any common term it defines be used in interpreting any statute that contains the word or term. In Hutton v. Esher UDC 1973 therefore, land was defined to include buildings acquired for the purpose of compulsory purchase and this interpretation was strictly used in the ruling of the judge. Second, the Human Rights Act 1998 is considered another specific aid to interpretation as it allows that where possible, canon of statutory interpretation be done to comply with the European Convention of Human Rights (ECHR) (Peel 2007, p. 34). Meanwhile, the Human Rights Act 1998 provides that where possible, interpretations be given outside what Parliament so as to ensure compliance with the ECHR. Typical example of the application of this aid to interpretation was used in A v United Kingdom 2009 where the detention of foreigners without trail was ruled as an infringement on their human rights. Apart from the first two examples, interpretation sections of statutes, definition of terms section of statutes, and headings and side notes in statutes are all used as specific aids to interpretation. In Fisher v Bell (1961) also, the long title was used to hold that display of the knife constituted a criminal liability under Restriction of Offensive Weapons Act 1961. This means that the long title of Acts can be used specific aid to interpretation. Approaches to interpretation The literal rule As the name implies, literal rule has been used to signify the interpretation of statutes according to their literal meanings (Simpson 1985, p. 349). This makes the literal rule more suitable with the use of intrinsic aids to interpretation (Twining & Miers 1999, p 90). Many have however questioned the implication of literal rule, saying that even though the use of this approach means judges abide by what Parliament enacts, it could lead to absurd results (Birks 1998, p. 407). In Partridge v Crittenden (1968), literal rule was applied when Ashworth J based on the literal meaning under the Protection of Birds Act 1954 to rule that the advertisement involving the bird constituted invitation to treat, thereby discharging the offence against the appellant. Similarly, in Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953), Somervell LJ based on the literal meaning of s 18(1) of the Pharmacy and Poisons Act 1933 to indicate that displaying of goods was not an offer but its display in the basket by the customer. Again, in Carlill v Carbolic Smoke Ball Company (1892), the judges used the specific and literal meaning to the words in the advertisement to hold that some words could constitute a binding unilateral offer that could make a buyer accept such an offer. The golden rule In Grey v. Pearson (1857), the golden rule approach to interpretation was clearly exhibited when the judge held that words in the statutes are to be adhered to except in cases where doing so will lead to absurdity. In a similar manner, in Adams v. Lindsell (1818), the communication of acceptance to the offeror was found to have been effected in the course of post where postage letter is used. This case which later led to the enactment of the Postal Rule comes to explain that a golden rule could be used as an extrinsic approach where judges have the right to amend the statute under the disguise of interpretation. It is said that an amendment of statute has taken place in such an instance because interpretations that are outside the words of the statute later become precedence for other rulings to be made (Driedger 1983, p. 82). It was for the reason above that in Household Fire Insurance v Grant (1879), Thesiger LJ ruling for the majority held that even when letter posted never arrives, acceptance is said to have taken effect. Hugh (2003, p. 212) has explained the importance of the golden rule, saying it has helped in modifying several statutes so as to avoid absurdity. For example, due to the amendment in interpreting Household Fire Insurance v Grant (1879), in 1892, precise timing for acceptance was established as part of the postage rule, which was used in the ruling of Entores Ltd v Miles Far East Corporation (1955). Another example is that in Adler v George (1964) the offence of obstructing the Forces “in the vicinity of” was later changed to “in or in the vicinity of” so as to avoid the absurdity of not including “in” (Rich in Style, 2010). The purposive approach In the purposive approach, judges are required to give interpretations based on the purposes for which the statute was enacted (Posner 2002, p. 751). The purposive approach, when practiced can therefore lead to intrinsic interpretation or extrinsic interpretation, all aimed getting the purpose of the statute by Parliament established (Bennion 1997, p. 55). The purposive approach has been considered to be an approach that has come to replace and correct the weaknesses of the golden rule and other rules such as mischief rule and plain meaning rule (Barak, 2005). This is because purposive approach has its precedence in the mischief rule, which was used in the landmark Heydon’s case (1584) where the judge required that gaps within the law be covered. Michell (1996, p. 713) however debated that the use of the purposive approach favours giving effect to the will of Parliament rather than amending the statute because it is achieved through the literal rule. Rosensaft (2004, p. 628) on the other hand believes the use of purposive approach is tantamount to breaching the separation of powers since it means judges have to engage in legislative function to interpret statutes according to the purpose for which Parliament made it. The rationale for this argument is seen in Smith v Hughes (1960) where reference was made to the Hansard to admit that it was difficult to determine Parliament’s intent in making statute and thus interpreting to suit it is challenging. But in Pepper v Hart, (1992) Lord Griffiths insisted that "The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation”. Conclusion Based on the various approaches to interpreting statutes given above, it is possible to conclude that in the most modern form of practice, judges have much room to use discretion in their interpretations, which sometimes lead to the amendment of the statute. Even though these amendments could be said to be merely implied changes, they cannot be underestimated or overlooked. This is because whiles such amending interpretations are made in their rulings, the judgment given becomes basis for which future ruling could be made. In the most general terms however, it can be said that the changes that have been made from the preference for the literal rule is for the collective good of the legal system, where it is expected that by giving judges some powers to cover gaps in the law under the purposive approach, there will be a better balance in the work of the judiciary as against that of the legislature. Indeed the legislature cannot be said to be perfect as they are humans and to err is human. With these said however, the need to maintain intrinsic interpretation of statutes cannot be said to be something that is totally inapplicable today. This is because as seen earlier, where there are statutory interpretation aids such as the definition of terms, it is only right that any interpretations made will be one that is directly related to the stated laws. If this is not done, then the work of Parliament will only be deliberately be undermined by judges. References Case Laws A v United Kingdom [2009] ECHR 301 Adams v Lindsell [1818] EWHC KB J59 Adler v George [1964] 2 QB 7 Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 Fisher v Bell [1961] 1 QB 394 Grey v. Pearson (1857) 6 HL Cas 1 Heydons Case (1584) 76 ER 637 Household Fire Insurance Company v Grant (1879) 4 Ex D 216 Hutton v Esher Urban District Council; CA 1973 Partridge v Crittenden [1968] 1 WLR1204 (QB) Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953]1 QB 401 Smith v Hughes [1960] 1 WLR 830 Laws and Statutes Restriction of Offensive Weapons Act 1961 s 18(1) of the Pharmacy and Poisons Act 1933 The Human Rights Act 1998 The Interpretation Act 1978 The Protection of Birds Act 1954 Journal Articles Barenboim, P 2009, ‘Defining the rules. Issue’, The European Lawyer. 90, p. 45. Birks, P 1998, ‘The academic and the practitioner’, Legal Studies Vol. 18 No. 43, p. 407. Gluck, AR 2004, ‘The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism’, Yale L.J. Vol. 119 No. 1750, p. 1764. Greene, J 2009, ‘On the Origins of Originalism’, Texas Law Review, Vol. 88 No. 09, p. 201. Michell, P 1996, ‘A Review of Just Do It! Eskridges Critical Pragmatic Theory of Statutory Interpretation’, McGill L.J. 41, p. 713. Posner, R 2002, ‘Pragmatism versus Purposivism in First Amendment Analysis’, Stanford Law Review Vol. 54, No. 4, pp. 737-752. Rosensaft, M 2004, ‘The Role of Purposivism in the Delegation of Rulemaking Authority to the Courts’, Vermont L.R. Vol. 29 No. 611, p. 628. Simpson, AWB 1985, ‘Quackery and Contract Law: The Case of the Carbolic Smoke Ball’, Journal of Legal Studies Vol. 14 No. 2, pp. 345–389. Books Barak, A 2005, Purposive Interpretation In Law. Princeton: Princeton University Press. Bennion, FAR 1997, Statutory Interpretation. London: Butterworth & Co. Cardozo, BN 1998, The Nature of the Judicial Process. New Haven: Yale University Press. Craig, P & de Búrca, G 2007, EU Law, Text, Cases and Materials 4th ed., Oxford: Oxford University Press. Driedger, EA 1983, Construction of Statutes. Ontario: Butterworth & Co. Hugh, C 2003, The Law of Contract: Law in Context. Fourth edition. London: LexisNexis Butterworths. McCloskey, RG & Sanford L 2005, The American Supreme Court, 4th ed. Chicago: University of Chicago Press. Peel, E 2007, Treitel: The Law of Contract. Twelfth edition. London: Thomson. Sullivan, R 2006, Sullivan on the Construction of Statutes. Fifth edition. Toronto: LexisNexis Canada. Twining, W and Miers, D 1999, How To Do Things With Rules. Fourth edition.Cambridge: Cambridge University Press. Websites Rich in Style 2010, Statutory Interpretation, accessed 20 May 2015, Read More