LAW AND LEGAL SYSTEMS (LAW1010) OUTLINE
Prepared by: Xavier McFarlane -LLB Pursuing (Faculty of Law, UWI Mona Campus, Kingston 7)
Topics: Statutory Interpretation, Classification of Legal Systems and Court Systems and
Tribunals in the CommonWealth Caribbean.
Topic 1: Statutory Interpretation
This outline will be answering the objectives of the worksheet presented by the lecturer of this
course. Please refer to the course worksheet for detailed analysis or case/ source references.
OBJECTIVES:
1. Explain the rules of and contemporary approaches to statutory interpretation.
In order to appreciate legislation as a source of law it is imperative for its words to be
[Link] the legislative function of enacting statute is reposed in Parliament, the
task of interpreting it is left to the courts. It is often said that when the Courts are
interpreting statutes they are giving effect to the intention of Parliament. Interpretation to
give effect to the intention of Parliament is an objective as opposed to a subjective
exercise. Therefore, the intention of Parliament is sought through an interpretation of the
words it used rather than a review/consideration of what it means.
What then is Statutory Interpretation with reference to case law and other sources?
- In the case of Nabie and Mayers v AG forTrinidad and Tobago TT 2012 CA 8
(Justisone) it explained this definition very well.
What are the major rules or approaches to statutory interpretation?
● The literal rule
● The golden rule
● The mischief rule
● The purposive approach
A. Literal Rule
This rule gives all the words in a statute their ordinary and natural meaning, on the
principle that the best way to interpret the will of Parliament is to follow the literal
meaning of the words they have used. Under this rule, the literal meaning must be
followed, even if the result is silly; for example, Lord Esher stated, in R v City of
London Court Judge (1892)1: ‘If the words of an Act are clear, you must follow them,
even though they lead to a manifest absurdity. The court has nothing to do with the
question of whether the legislature has committed an absurdity.’
It is imperative to note this obiter dictum postulated by Tindal CJ in the Sussex Peerage
Case (1844) 11 Cl&Fin 852:
“… the only rule for the construction of Acts of Parliament is, that they should be
construed according to the intent of the Parliament which passed the Act. If the
1
R v Judge of the City of London Court [1892] 1 QB 273
2
Sussex Peerage Case (1844) 11 Cl&Fin 85
words of the statute are in themselves precise and unambiguous, then no more
can be necessary than to expound those words in their natural and ordinary
sense. The words themselves alone do, in such case, best declare the intention
of the lawgiver.”
Examples of the literal rule in use are:
A. Whitely v Chapell (1868) A statute aimed at preventing electoral malpractice
made it an offense to impersonate ‘any person entitled to vote’ at an election.
The accused was acquitted because he impersonated a dead person and a dead
person was clearly not entitled to vote!3
B. London and North Eastern Railway Co v Berriman (1946) A railway worker
was knocked down and killed by a train, and his widow attempted to claim
damages. The relevant statute provided that this was available to employees
killed while engaging in ‘relaying or repairing’ tracks; the dead man had been
doing routine maintenance and oiling, which the court held did not come within
the meaning of ‘relaying and repairing’.4
C. Fisher v Bell (1961) After several violent incidents in which the weapon used
was a flick-knife, Parliament decided that these knives should be banned. The
Restriction of Offensive Weapons Act 1959 consequently made it an offence to
‘sell or offer for sale’ any flick-knife. The defendant had flick-knives in his shop
window and was charged with offering these for sale. The courts held that ‘offers
for sale’ must be given its ordinary meaning in law, and that in contract law this
was not an offer for sale but only an invitation to people to make an offer to buy.
The defendant was therefore not guilty of a crime under the Act, despite the fact
that this was obviously just the sort of behaviour that Act was set up to prevent.5
How advantageous is the Literal Rule?
Advantages of the Literal Rule:
- Clarity for Citizens:
The literal rule, as defined by Lord Tindal, emphasizes that the words of the law itself best
reveal what the lawmakers intended.6
- Certainty and Knowability of the Law:
In line with the rule of law, which demands certainty and knowability, the literal rule ensures
that ordinary citizens can understand and predict legal consequences by taking statutes at face
value. - Lord Diplock said, ‘the acceptance of the rule of law…requires that a citizen… should be
able to know in advance the legal consequences that will flow from [the statute]…the court must
3
Whiteley v Chappell (1868) LR 4 QB 147.
4
London and North Eastern Railway v Berriman [1946] AC 278
5
Fisher v Bell 1 QB 394
6
ibid
give effect to what the words… would reasonably understood to mean by those whose conduct
it regulates.’7
- Parliamentary Sovereignty:
- Statements about the intent of an act shouldn't override the words used in legislation. This
upholds the constitutional rule that Parliament is sovereign only in respect to what it expresses
through words in passed legislation.
- Elected Parliament's Authority:
- The literal rule secures the authority of the elected Parliament. Taking words at their plain
meaning ensures that the will of elected legislators prevails.
- Separation of Powers:
- Upholding the doctrine of the separation of powers, the literal rule asserts that Parliament
makes laws, and the judiciary interprets them. It prevents judges from overstepping their role by
filling gaps in legislation.-Lord Diplock in Duport Steels Ltd v Sirs claimed, ‘the British
Constitution…is firmly based upon the separation of powers: Parliament makes the laws, the
judiciary interprets them’. For judges to ‘fill up the gaps and make sense of the enactment’
would ‘be a naked usurpation of the legislative function under a thin disguise of interpretation8’.
Despite these advantages, it's important to note that the notion of a 'literal' meaning is not
absolute, and judges might interpret based on their preferences, introducing an element of
subjectivity and discretion.
The disadvantages of the Literal Rule:
-Rigidity and Inflexibility:
The literal rule can lead to rigid and inflexible interpretations of statutes, as judges are bound by
the literal meaning of words even if it results in an unjust or absurd outcome.
-Absence of Contextual Consideration:
This approach ignores the broader context in which the law operates, neglecting the intention of
lawmakers and the purpose behind statutes. This may lead to interpretations that do not align
with the legislative intent.
-Potential Injustice:
Strict adherence to the literal rule might result in unjust outcomes in certain cases where the
literal interpretation does not serve the interests of justice or fairness. - Recall the case of
London and North Eastern Railway Co v Berriman (1946)
-Language Ambiguity:
7
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591.
8
Duport Steels Ltd v Sirs [1980] 1 WLR 142,
The English language is inherently ambiguous, and words may carry different meanings in
different contexts. The literal rule may not account for this linguistic complexity, leading to
uncertainty in interpretation.
-Undermining Legislative Purpose:
In cases where the literal rule is strictly applied, there is a risk of undermining the purpose of
legislation. This is particularly problematic when statutes are intended to address evolving social
or technological changes.
-Judicial Discretion Limited:
The literal rule limits judicial discretion, preventing judges from considering extraneous factors or
applying a more nuanced interpretation that aligns with the spirit of the law.
-Potential for Absurd Results:
Adhering strictly to the literal meaning of words may lead to outcomes that are perceived as
absurd or contrary to common sense. This can erode public confidence in the legal system.
-Conflict with Legislative Intent:
The literal rule may result in interpretations that conflict with the overall intent of the legislature,
as it focuses solely on the literal meaning of words rather than the purpose behind the law.
B. The Golden Rule
This provides that if the literal rule gives an absurd result, which Parliament could not
have intended, then (and only then) the judge can substitute a reasonable meaning
in the light of the statute as a whole. It was defined by Lord Wensleydale in Grey v
Pearson (1857): ‘The grammatical and ordinary sense of the word is to be adhered to,
unless that would lead to some absurdity, or some repugnance or inconsistency with
the rest of the instrument, in which case the grammatical and ordinary sense of the
words may be modified so as to avoid that absurdity and inconsistency, but no further.’9
Examples of the golden rule in use are:
R v Allen (1872) Section 57 of the Offences Against the Person Act 1861 stated that
‘Whosoever being married shall marry any other person during the life of the former
husband or wife . . . shall be guilty of bigamy.’ It was pointed out that it was impossible for a
person already married to ‘marry’ someone else – they might go through a
marriage ceremony, but would not actually be married; using the literal rule would
make the statute useless. The courts therefore held that ‘shall marry’ should be interpreted to
mean ‘shall go through a marriage ceremony’.10
Maddox v Storer (1963) Under the Road Traffic Act 1960, it was an offence to drive at
more than 30 mph in a vehicle ‘adapted to carry more than seven passengers’. The
vehicle in the case was a minibus made to carry 11 passengers, rather than altered to
9
Grey v Pearson 1857] 6 HC Cas 61, p 106
10
R v Allen (1872)
do so, and the court held that ‘adapted to’ could be taken to mean ‘suitable for’.11
Adler v George (1964) The defendant was charged under s. 3 of the Official Secrets
Act 1920, with obstructing a member of the armed forces ‘in the vicinity of any prohibited place’.
He argued that the natural meaning of ‘in the vicinity of’ meant near
to, whereas the obstruction had actually occurred in the prohibited place itself, an air
force station. The court held that while in many circumstances ‘in the vicinity’ could
indeed only be interpreted as meaning near to, in this context it was reasonable to
construe it as including being within the prohibited place.12
Inco Europe Ltd v First Choice Distribution (2000) The House of Lords stated that
words could be added to a statute by a judge to give effect to Parliament’s intention
where an obvious error had been made in drafting a statute.13
Where the main object and intention of a statute are clear, it must not be reduced to a nullity by
the drafter’s unskillfulness or ignorance of the law, except in a case of necessity, or the
absolute intractability of the language used. Nevertheless, the courts are very
reluctant to substitute words in a statute, or to add words to it, and it has been said
that they will only do so where there is a ‘repugnancy to good sense’.14
The rule may thus be expressed as a rule of commonsense, treated as such in
Barnes v Jarvis, where Lord Goddard, CJ said: ‘A certain amount of commonsense
must be applied in construing statutes’.15
Advantages of the Golden Rule:
The golden rule can prevent the absurdity and injustice caused by the literal rule, and help the
courts put into practice what Parliament really means based on a contextual evaluation or
analysis.
Disadvantages of the Golden Rule:
This is an extract from Rose Marie Antione Bell:
The golden rule should not be viewed as a significant departure from the literal rule.
Essentially, it suggests that the judge must follow the literal approach and the golden
rule will only be resorted to where the judge is prepared to hold that the result of the
literal meaning is manifestly absurd or unreasonable. Priority is, therefore, still
afforded to the literal meaning of words. We have seen too, from the cases, that the
rule contemplates only that errors or omissions were made in the language and does
not attempt in a fundamental way, to go behind the words used or which should have
been used in the statute. This is, therefore, a limited exercise of judicial power. Indeed,
in the final analysis, the golden rule is applied in very few cases.
11
Maddox v Storer (1963)
12
Adler v George (1964)
13
Inco Europe Ltd v First Choice Distribution (2000)
14
Grey v Pearson 1857] 6 HC Cas 61, p 106
15
Barnes v Jarvis [1953] 1 WLR 649, at p 652
In addition, absurdity is a concept no less vague and indefinite than ‘plain
meaning’. It is difficult to reconcile the cases based on a finding of ‘absurdity’.
Consequently, the application of the golden rule is erratic. As Zander puts it, ‘one
can never know whether a particular conclusion will be so offensive to the particular
judge to qualify as an absurdity and if so, whether the court will feel moved to apply
the golden rather than the literal rule’.
There is also the danger, in allowing judges to decide whether a meaning is
‘absurd’, that we are giving them too much room to maneuver. They are perhaps
being allowed the freedom to deviate from Parliament’s intention in accordance with
their own subjective evaluation of what is absurd. We should recall that the cardinal
principle is that judges do not make law, they only interpret it. The golden rule, like
the literal rule, still avoids the utilization of other aids, such as parliamentary debates,
to discover Parliament’s true intention. At the same time, it allows changes to
Parliament’s words.
Concisely,
1. Golden Rule and Literal Rule Relationship:
- The golden rule is not a significant departure from the literal rule.
- It implies that the judge should primarily follow the literal approach.
- The golden rule comes into play only if the literal meaning results in manifest absurdity.
2. Priority to Literal Meaning:
- Priority is given to the literal meaning of words.
- The golden rule is a limited exercise of judicial power, intervening only when errors or
omissions are evident in the language of the statute.
3. Limited Scope of Judicial Power:
- The golden rule does not fundamentally challenge or go behind the words used in the statute.
- The exercise of judicial power is confined within the scope of correcting language errors or
omissions.
4. Infrequent Application:
- The golden rule is applied in very few cases, emphasizing its infrequent use.
- Its application is limited to instances where the literal meaning leads to manifest absurdity or
unreasonableness.
5. Challenges with Absurdity Concept:
- Absurdity, the trigger for the golden rule, is as vague and indefinite as 'plain meaning.'
- Cases based on a finding of absurdity are difficult to reconcile, leading to erratic application.
6. Judicial Discretion and Subjectivity:
- Allowing judges to decide what qualifies as 'absurd' introduces subjectivity.
- Judges might deviate from Parliament's intention based on their subjective evaluation of
absurdity.
7. Concerns About Judicial Freedom:
- Granting judges the authority to determine absurdity may provide too much room to
manoeuvre.
- Judges might deviate from Parliament's intention based on their own evaluation of what is
absurd.
8. Adherence to Cardinal Principle:
- The cardinal principle that judges interpret but do not make law is reiterated.
C. The Mischief Rule
The mischief rule was laid down in Heydon’s Case in the sixteenth century, and provides that
judges should consider three factors:
● what the law was before the statute was passed;
● what problem, or ‘mischief’, the statute was trying to remedy;
● what remedy Parliament was trying to provide.
The judge should then interpret the statute in such a way as to put a stop to the problem
that Parliament was addressing.
Examples of the mischief rule in use are:
Smith v Hughes (1960). The Street Offences Act 1959 made it a criminal offence for a
prostitute to solicit potential customers in a street or public place. In this case, the prostitute was
not actually in the street, but was sitting in a house, on the first floor, and tapping on the window
to attract the attention of the men walking by. The judge decided that the aim of the Act was to
enable people to walk along the street without being solicited, and since the soliciting in
question was aimed at people in the street, even though the prostitute was not in the street
herself, the Act should be interpreted to include this activity.
Elliott v Grey (1960). The Road Traffic Act 1930 provided that it was an offence for an
uninsured car to be ‘used on the road’. The car in this case was on the road, but jacked up, with
its battery removed, but the court held that, as it was nevertheless a hazard of the type which
the statute was designed to prevent, it was covered by the phrase ‘used on the road’.
Royal College of Nursing v DHSS (1981). The Abortion Act 1967 stated that terminations of
pregnancy were legal only if performed by a ‘registered medical practitioner’. By 1972, surgical
abortions were largely being replaced by drug-induced ones, in which the second stage of the
process (attaching the patient to a drip), was carried out by nurses, under the instructions of a
doctor. The House of Lords ruled that the mischief which the Act sought to remedy was the
uncertain state of the previous law, which drove many women to dangerous back-street
abortionists. It sought to do this by widening the grounds on which abortions could be obtained,
and ensuring that they were carried out with proper skill in hygienic conditions, and the
procedure in question promoted this aim, and was not unlawful. It was a controversial decision,
with Lords Wilberforce and Edmund Davies claiming that the House was not interpreting
legislation but rewriting it.
Implication of the Mischief Rule:
The mischief rule, in essence, surpasses other interpretation rules by delving beyond mere
statutory language. It acknowledges that understanding language often requires considering its
context, presenting a more satisfactory approach. However, challenges arise in pinpointing
where the court should identify the mischief. While traditionally linked to the Preamble and
statute words, these may not reliably indicate Parliament's intention for specific provisions.
Despite the rule's seemingly broad scope, it has practical limits, as Lord Diplock's endorsement
lacked clarity on how far the court could extend its examination. The mischief rule, although
more liberal, maintains a degree of inward focus, placing constraints on extraneous factors in
discerning Parliament's intent. Nonetheless, it offers a less insular perspective compared to the
golden and literal rules, allowing a more realistic appraisal of statutory words and supporting a
purposive approach to interpretation.
Exam practice Question-
How can I approach this question?
First, write a grabbing introduction that is concise and captures what you will be discussing in
this essay.
- This introduction should have the following elements:
The primary role of the Legislature versus that of the Judiciary or define statutory
interpretation and note the aim,
Note what the literal rule is
Identify the different types of statutory interpretation that exist
Note your points of discussion
● The extent to which the golden and mischief rule can deviate from the
construct of the judiciary acting in its role of interpreting the legislation to
decipher the intention of the lawmakers.
● Discuss how the deviation would not in the essence of the word usurp the
law making function of parliament but assist the judiciary in their decision
making when interpreting statute.
● Note the disadvantages of using the literal rule by itself and the vitality of
utilizing the other existing approaches to statutory interpretation.
After your introduction you should delineate on your points in a timely manner with reference to
adequate case law or jurisprudential principles.
Conclude by stating the results of your analysis and the approach you took in answering the
question.
Sample Essay
The constitution which is the supreme law of the land connotes the roles and function of each
organ of the state. For the purpose of this discussion, the contention lies between the Judiciary
and the Legislature. The constitutional role of the Legislature is to essentially make laws in the
form of legislation or statute which thereby allows for the role of the Judiciary to be exercised in
interpreting the law. Interpretation of the law in this regard poses a myriad of issues because it
has a tilting scale of advantages and disadvantages to the society in which the law governs and
creates thereafter a controversy of the sanctity of the doctrine of separation of powers which
gives each branch of government a certain level of independence and safeguards against the
subject matter in question, usurpation.
To avoid usurpation on the part of the Judiciary against the legislature there exist three
traditional approaches to interpreting legislation these are the Literal Rule, the Golden Rule and
The Mischief rule.
The Literal Rule, which is the main point of discussion, is viewed as the…(give your own
definition of the rule)
-State case law which defines the rule, Quote dicta (does not have to be verbatim)
- State two or more arguments which support its usage- ADVANTAGES
- Note two drawbacks then segway into noting your three points of discussion.
NB - In the interest of time in the exam you do not have to signpost the main points. Instead,
you can allow your discussions to be fashioned in a way where the points are distinctively
elucidated and independently identified.
Point one
The extent to which the golden and mischief rule can deviate from the construct of the judiciary
acting in its role of interpreting the legislation to decipher the intention of the lawmakers.
- Note what the Goldenrule is briefly
- Then point out how the use of that approach allows judges to move away from literalism
and how that can be seen as giving the Judiciary an additional role that is akin to that of
the legislature.
- Do a similar line of discussion for the Mischief rule noting its purposive nature
Second point
State how the deviation proves to be essential by noting the advantages or positive implications
of the approaches alternative to the Literal.
Third point
Do a societal analysis
Express briefly how problematic and unjust the legal system would seem to the citizenry if the
law was to be solely interpreted by the words/language used in its composition.
Conclude-