Describe Advantages And Disadvantages Of The G/M/P rule Flashcards
(12 cards)
What is the first advantage of the golden/mischief/purposive rule in terms of will
The WILL OF PARLIAMENT is followed to a great extent, considering Parliament’s intention when passing the act, which is democratic as unelected judges are not making law, but applying law made by Parliament.
In Adler v George, the will of Parliament was followed when ‘in the vicinity’ was interpreted to avoid an absurd result.
What is a disadvantage of the golden/mischief/purposive rule in terms of power?
TOO MUCH POWER is given to unelected judges, which encourages ‘judicial law making’, considered undemocratic.
In Adler v George, the judge’s interpretation of ‘in the vicinity’ could be seen as excessive judicial power.
What is the second advantage of the golden/mischief/purposive rule in relation avoiding absurdity
It AVOIDS ABSURD/UNJUST OUTCOMES that the literal rule would produce, providing an ‘escape route’ for judges.
In Adler v George, the interpretation of ‘in the vicinity’ avoided the absurd outcome of a man being found not guilty for obstructing a soldier.
What is a disadvantage related to the limitations of the golden/mischief/purposive rule?
It is VERY LIMITED in its use; judges cannot change the words of the Act and there are no clear guidelines for interpretation.
The main starting point for judges remains the Literal Rule.
What is the third advantage of the golden/mischief/purposive rule?
It provides FLEXIBILITY/ DISCRETION to judges, allowing them to avoid absurd/unjust results without requiring new legislation.
In Adler v George, the judge’s discretion reflected Parliament’s intention without needing an amended Act.
What is a disadvantage concerning unpredictability in the golden/mischief/purposive rule?
It produces UNPREDICTABILITY/UNCERTAINTY, as outcomes depend on individual judges’ interpretations, making it hard for lawyers to advise clients with certainty.
In Adler v George, the interpretation of ‘in the vicinity’ could vary with different judges, leading to unpredictable outcomes.
Who supported the use of the mischief rule?
Sir William Blackstone supported the use of the mischief rule.
What did Sir William Blackstone say about interpreting legislation?
‘The fairest and most rational method to interpret the will of the legislation is by exploring his intention at the time the law was made.’
Who else approved the mischief rule as a method of interpretation?
The Law Commission has also approved the mischief rule as a method of interpretation.
What does the mischief rule offer compared to other rules?
The mischief rule offers an alternative to the literal and golden rules.
How does the mischief rule compare to the purposive approach?
The mischief rule is narrower than the purposive approach.
What does the mischief rule allow judges to show more respect for?
The mischief rule allows judges to show more respect for parliamentary sovereignty and the separation of powers.
