Free Essay Example - Interpretation of the Law

More often than not in the exercise of their judicial powers, courts find themselves in situations whereby parties ask them to interpret various provisions of Statutes. Interpretation of the law is one of the chief functions of the judicial branch of government under the separation of powers doctrine. Statutory interpretation refers to the act of a court of law construing the true meaning of a legislative text or a particular provision within it, particularly where that provision is unclear, uncertain, and ambiguous and therefore lends itself to more than one interpretation. All this is in a bid to make the law clearer to facilitate justice and fairness between parties that come before courts and to ensure predictability and certainty in the way courts decide cases. However, the interpretation of pieces of legislation is not always an easy task for judges. It is for this reason that courts have over time developed various rules to guide them in the interpretation of statutes. They are known as the canons of construction and include the literal, mischief, and golden rules. These approaches enable judges to ascertain the sense in which the legislature has used certain phrases, terms, or words in a Statute and whether those words have an ordinary dictionary or specialized meanings (Congressional Research Service 2014, p. 1). But, in applying these canons, one thing is clear: the original intention of Parliament must, as far as is reasonably possible, be preserved unless to do so would create an injustice or absurdity.

Is your time best spent reading someone else’s essay? Get a 100% original essay FROM A CERTIFIED WRITER!

Order now

The Literal Rule

The literal rule of statutory interpretation is the principle that in construing a Statute, a judge ought to jive the phrases and words or provisions of that legislative document their ordinary, plain, and natural meanings. The ordinary meaning of a word is the everyday dictionary definition that all reasonable members of the society assign to that it in their normal usage and application. That is, under this literal approach, a judge must not attempt to gloss or read around legislative provisions to provide them with meanings that the legislator did not envisage (Slapper & Kelly 2014, p. 57). In other words, the rule mandates courts to strictly adhere to the black letter of the law and apply it as it is. The judge must consider what the law actually says and not what it might mean (Slapper & Kelly 2014, p. 57). This conservative approach to statutory interpretation may be traced to the positivist theory of law and jurisprudence which posits that the law as posited in Statutes by Parliament should be paramount and read or applied as-is. The benefit of this rule is that it creates certainty in interpretation and affirms Parliamentary supremacy. However, the rule is problematic in that it can often lead to absurd or unfair outcomes and allow people to exploit loopholes in the law and escape punishment as was the case in Fisher v. Bell (1961) which involved an interpretation of the 1959 Restriction of Offensive Weapons Act. Here, under the Statute, it was an offense for anyone to offer for sale flick knives. The defendant displayed them in his shop with price tags on them. He was convicted under this law but the appellate court quashed his conviction on the basis that the mere display of the knives did not qualify as ‘offers’ as used in the Act. It was just an invitation to treat. Hence, here, the court applied the literal rule to jive the term “offer” its ordinary, dictionary meaning, thereby allowing the defendant to avoid punishment for what was clearly a violation of the law.

The Golden Rule

The golden rule of statutory interpretation modifies and justifies the literal rule (Mitchell & Dadhania 2003, p. 46). It does this by requiring that where, in the opinion of the judge, the strict application of the literal rule would produce an absurdity, illegality, unfairness, or injustice, they should circumvent the absurd result by looking for other meanings. In Grey v. Pearson (1857), Lord Wensleydale stated that courts should follow the ordinary and grammatical sense of words in a statute unless doing so would lead to inconsistency, repugnance, or absurdity. For instance, in Adler v. George (1964), it was an offense under the Official Secrets Act of 1920 for a person to be within a military base's vicinity. The military officers found an unauthorized person inside the base. The court found him guilty under the Act. The court had to interpret what the word “vicinity” meant under the statute. The court, applying the golden rule, held that a holding that a person found in the vicinity rather than inside a military base would have created absurd results. However, the golden rule does not jive judges a carte blanche to supplant Parliament by replacing or ignoring legislative provisions because the court finds them to be absurd. For the rule to be applicable, it must be proved that there is ambiguity in the way words are used in a statute such that different contradictory meanings are possible. This rule enables judges to remedy apparent errors in legislative drafting so as not to perpetuate injustice and to instill common sense in the law. However, legal pundits have criticized the golden rule for allowing judges who are unelected officials to remake the law.

The Mischief Rule

Also referred to as the purposive approach to the interpretation of Statutes, the mischief rule allows courts to look beyond the phrases and words used in a Statute by ascertaining the purpose, reason, or intention of the legislature when they enacted that particular law and inserted the impugned provision (Mitchell & Dadhania 2003, p. 49). Here, judges enjoy more judicial discretion in interpretation since the rule permits them to determine what the position of the law was before the enactment of the current statute whose provision is to be construed as is seen in the Smith v. Hughes (1960) case (Bray 2019, p. 11). After engaging in a historical analysis of the law, the court is then required under the golden rule to adopt an interpretation that cures the lacunae or gaps evident in the law as the court stated in Magor and St. Mellons Rural District Council v Newport Corporation (1950). That is, the court must ask itself what defect did Parliament aim to cure when it enacted this law and what was the intention? In Corkery v Carpenter (1951), for instance, even though the 1872 Licensing Act under which the Appellant was sentenced did not mention bicycles, the court applied the mischief rule to hold that the purpose of the Statute was the prevention of the use of all forms of transport while intoxicated. While this rule helps promote flexibility in the law, it provides courts with too much freedom which allows them to chanje the law at whim based only on their prejudices and biases.

Allowing Judges’ Freedom in Deciding Cases

Discretion and independence are necessary for judges’ exercise of their judicial powers donated by the Constitution and Statutes. However, this freedom must be tempered to ensure that is it not abused. It is partly for this reason that there are rules of interpretation to guide and control judges so that in every case, it is clear which canon a judge has applied and the reasons for that application. Whereas permitting judges some freedom in judicial decision making is necessary to preserve their autonomy, this freedom must be jealously guarded against potential misuse. The abuse occurs when the judges use their discretion to decide cases not based on the law and evidence before them but instead based on irrelevant factors and considerations such as personal political opinions. Too much freedom or one without some stringent rules would also create a situation whereby judges permit individual biases and prejudices or social and political affiliations and inclinations to adversely influence their decisions. The situation in the US Supreme Court where the Justices often find themselves divided along social, economic, and political-ideological lines into liberals and conservative is an epitome of the susceptibility of judicial freedom to abuse to meet immaterial ends.

Without some sort of regulation of the discretionary powers of courts, there would be judicial activism and judges churning out inconsistent jurisprudence. Judicial activism occurs when judges, in performing their interpretive role, go beyond the Constitutional and statutory provisions by taking into account other extraneous social, cultural, economic, and political factors in ways that create an impression that they are performing the legislature's lawmaking functions. When courts have the wherewithal to decide cases as they deem fit, there is a real danger that they will exceed their mandated legal powers and step into the role of other arms of government, hence violating the Constitutional separation of powers doctrine. In other words, allowing judges to decide cases based on their own judgment without some judicial restraint is seen as a usurpation of the role of Parliament. The argument against permitting such a scenario to play out in our courts is that since judges in many jurisdictions are not democratically elected officials, it is unfair for them to purport to perform functions that are exclusively a preserve of the legislative branch, including law-making.

The supremacy of Parliament is severely underlined and watered down when courts start delving into lawmaking territory which is originally preserved for the legislature. When Elected officials start making laws that affect millions of people, it is problematic because these officials lack the mandate to do so and may not fully understand the social, economic, and political or cultural intrigues that inform lawmaking. For, unlike judges who mostly sit and decide cases as and when brought before them, legislators interact closely and on many occasions. The legislature thus has a wider and more informed view and perception of the dynamics of lawmaking and what the people who elected them want them do enact.

In conclusion, therefore, in light of these inherent dangers, judges should not be given the freedom to decide cases as they deem fit but rather operate by some strict rules of interpretation. Judicial freedom, if left unchecked, could be subject to abuse and misuse, hence the need for some canons to guide judges. Courts should use the mischief, golden, and literal rules responsibly to govern their discretion in deciding cases without foraging into areas over which they lack jurisdiction. Allowing them complete freedom would lead to them usurping the lawmaking powers and functions of Parliament, hence violating the rule of law principle of separation of powers. It is also undemocratic to jive an unelected judiciary the absolute freedom to decide cases as it deems fit.