evaluation of statutory interpretation (12)

Question 1

name the advantages of the literal rule

Answer 1

• respects Parliamentary supremacy
• makes the law more certain
• restricts the role of judges

Question 2

name the disadvantages of the literal rule

Answer 2

• can lead to absurd/unjust decisions
• words can have more than one meaning
• assumes perfect draftsmanship

Question 3

evaluation of literal rule - respects parliamentary supremacy

Answer 3

Respects Parliamentary supremacy

• Court follows the letter of the law and the literal meaning of the word. They do not try and guess Parliament’s purpose or intentions
• this is good since parliament is the democratic law-making body
• E.g. Fisher v Bell – followed the exact meaning of the phrase ‘inv to treat’

Question 4

evaluation of literal rule - can lead to absurd/unjust decisions

Answer 4

can lead to absurd/unjust decisions
- The courts follow the literal meaning even if this produces an absurd result
- E.g. Whitely v Chappel, Berriman!
- All unfair!

Question 5

evaluation of literal rule - makes the law more certain

Answer 5

• the law is interpreted exactly as it is written by Parliament
• if judges use the literal rule, lawyers can predict the result and advise their clients appropriately
• this saves clients money and time

Question 6

evaluation of the literal rule - words can have more than one meaning

Answer 6

words can have more than one meaning

• Words regularly have more than one meaning e.g. “gay” “cool” “refuse”
  therefore it is hard to apply the literal rule
• Words also change meaning over time e.g. “decimate”

disadvantage

Question 7

evaluation of the literal rule - restricts the role of judges

Answer 7

Restricts the role of judges
* Judges should not be making law as they are not elected

• The literal rule respects the doctrine of separation of powers
• Avoids judicial law making

advantage

Question 8

evaluation of the literal rule - assumes perfect draftsmanship

Answer 8

Assumes perfect draftsmanship
* Applying the literal rule assumes that there are no errors in the legislation

• Human error suggests that there will always be errors in each Act so when the literal rule produces an absurd result – this simply could be an error
• The court could fix this error easily but chooses just to follow the statute which is unfair for the defendant/victim

disadvantage

Question 9

name the advantages of the golden rule

Answer 9

• Errors in the law can be corrected, avoiding absurd results
• Respects Parliamentary supremacy to some extent
• Boosts public confidence in the law

Question 10

name the disadvantages of the golden rule

Answer 10

• What is the meaning of an ‘absurd result’?
• Provides judges with too much discretion – judicial law making
• A “feeble parachute” according to Michael Xander

Question 11

evaluation of golden rule - Errors in the law can be corrected

Answer 11

Errors in the law can be corrected, avoiding absurd results

• Court can fix errors in the law and close loopholes
• E.g. R v Allen – legislature had made a mistake with the law and Adler v George – had not anticipated the problem

Question 12

evaluation of golden rule - What is the meaning of an ‘absurd result’?

Answer 12

What is the meaning of an ‘absurd result’?
There is no official definition of an ‘absurd result’ so the court is essentially deciding that they simply don’t like a certain result and changing it

Question 13

evaluation of golden rule - respects Parliamentary supremacy to some extent

Answer 13

Respects Parliamentary supremacy to some extent
- Court is making only slight changes to the law (narrow approach) so it is still respecting Parliamentary supremacy
- Judges are just fixing mistakes – not trying to make the law

Question 14

evaluation of golden rule - provides judges with too much discretion

Answer 14

Provides judges with too much discretion
- Wide approach is essentially judicial law making
- e.g. Re Sigsworth – essentially just didn’t want him to be able to inherit even though the law was perfectly clear that he could

Question 15

evaluation of golden rule - boosts public confidence

Answer 15

Boosts public confidence in the law

• As the courts are closing loopholes, they improve the public’s confidence in the law as they produce fairer results that the literal rule
• For example in Berriman – if had used Golden rule – then Mrs Berriman would have got her compensation (which she should have)

Question 16

evaluation of golden rule - A “feeble parachute” according to Michael Xander

Answer 16

A “feeble parachute” according to Michael Xander

• The golden rule is still very limited – they have to apply the literal rule first and then try and fix any absurd result.
• They often have to choose between two words – both of which may not create a satisfactory outcome
• Therefore is a “feeble parachute” to the literal rule

Question 17

name the advantages of the mischief rule

Answer 17

• Avoids absurdities
• Promotes the purpose of the law and Parliament’s intention
• Reforms and improves the law

Question 18

name the disadvantages of the mischief rule

Answer 18

• Must be possible to discover the mischief
• Is really just judicial law making
• Rule is very old and can produce uncertainty in the law

Question 19

evaluation of mischief rule - Avoids absurd results

Answer 19

Avoids absurd results

E.g. Smith v Hughes – Act was trying to stop prostitution so it would be absurd not to find the defendants guilty

Question 20

evaluation of mischief rule - Must be possible to discover the mischief

Answer 20

Must be possible to discover the mischief

• Acts are often very old
• E.g. Corkery v Carpenter (Licensing Act 1872) – might be difficult to work out what the mischief was in some circumstances
• Heydon’s case is from 1584 which sets out the rule

Question 21

evaluation of mischief rule - Promotes the purpose of the law and Parliament’s intention

Answer 21

Promotes the purpose of the law and Parliament’s intention

• allows judges to look back at the gap in the law that the Act was designed to cover. this is more likely to produce a ‘just’ result as in Smith v Hughes. from the public’s pov, would it have been just if the prostitutes had not been found guilty just because they were on the streets?
• Court is trying to follow Parliament’s intention and not just simply apply the law in the way the court thinks is right
• This respects Parliamentary supremacy still!

Question 22

evaluation of mischief rule - Is really just judicial law making

Answer 22

Is really just judicial law making

• Court is essentially just deciding what the law is by trying to guess what mischief Parliament was trying to stop
• Goes against the doctrine of separation of powers

Question 23

evaluation of mischief rule - Reforms and improves the law

Answer 23

Reforms and improves the law

• Allows the law to change and improve
• E.g. Royal College of Nursing v DHSS – technology and practice had changed with regards to abortions – law needed to be updated so the courts simply did this
• Saves time and money

Question 24

evaluation of the mischief rule - Rule is very old and can produce uncertainty
in the law

Answer 24

Rule is very old and can produce uncertainty in the law

• Rule comes from 1584 Heydon’s case
• The mischief is not always clear and therefore it can be difficult for lawyers to predict what the judge will say/do so it makes the law uncertain
• This makes it difficult to advise clients

Question 25

name the advantages of the purposive approach

Answer 25

• Avoids absurdities
• Useful for new technology
• Greater judicial discretion

Question 26

name the disadvantages of the purposive approach

Answer 26

• Difficult to discover what the true intentions of Parliament are
• Can lead to uncertainty in the law
• Judicial law making