Rules And Approaches Taken By Judges
Judges are always required to utilize different rules and approaches in the interpretation of Acts of Parliament as they handle different cases. These rules and approaches play a significant role in the effective determination of cases in line with the law. The literal rule, also referred to as the constructionist approach, is one of the rules and approaches that judges have to observe. Additionally, judges use the mischief rule, also called the purposive approach, and the golden rule, which is also referred to as contextual approach. These rules and approaches are always utilized to ensure that proper judgments are made in line with the delivery of justice.
This essay explicates the different rules and approaches used by judges in the interpretation of an Act of Parliament. More, the essay conducts a critical analysis of their advantages and disadvantages.
The Literal Rule (The Constructionist Approach)
The literal rule is also referred to as the constructionist approach is widely used by judges in the interpretation of the Acts of Parliament as they refer to different cases. It is worth noting that the literal rule utilizes canons and rules of interpretation in the establishment of the meanings of words or the actual intent of Parliament. Charman, et al, (2012, p46) opines that the literal rule gives words their ordinary or natural meaning. This approach emphasizes the view that an Act of Parliament should be construed in line with the intent of the Parliament that passed it. In cases where the words of the statute are precise and unambiguous, then no more complication is required than to explain those words in their ordinary meaning. The most important thing to note here is that words used in a statute define the express intent of the lawgiver. The literal rule was applied in the case of Whitely v. Chappel (1868) where the statute made it an offence to” impersonate any individual entitled to vote”. In this case, the defendant used the vote of a deceased person. However, the statute on voting rights required that a person must be alive in order to be entitled to vote. The application of the literal rule (constructionist approach) vindicated the defendant as was alive and entitled to vote. Therefore, the rule emphasizes the need to give words their natural meaning without adding any more complications.
The key advantages of the literal rule (constructionist approach) is that it emphasizes the need to give words their natural or ordinary meaning hence ensuring that judges do not change words as they deem fit. Denoncourt (2009, p58) agrees that the identification of words in their ordinary meaning during the interpretation of an Act of Parliament prevents any complication through the interchange of words among judges. This plays an assistive role in leading to better judgments that reflect the rule of law for all the parties involved in the case. Again, emphasis on the natural use of words ensures that different cases are handled appropriately without the change of words to suit the intentions of judges. This ensures that cases are determined in the most appropriate manner that respects the position of everyone.
This rule is also advantageous because it allows for flexibility in instances where the words found in the statute are ambiguous and not precise. Judges have the powers to change some meanings in cases where they do not come out in a clear manner. This reflects the flexibility of this approach in leading to the required judgments in different cases. Unclear and ambiguous words are changed in such a manner that indicates a sense of fairness in the determination of cases hence enabling all parties have access to a fairer trial.
The literal rule (constructionist approach) is disadvantageous because it is always likely to result to unfair judgments in some cases. This emanates from its strictness that words should be given their ordinary or natural meanings where they are precise in the interpretation of an Act of Parliament. Notably, judges are limited to the ordinary meaning of words and they always have to determine cases in line with the meaning that comes out of these words. Therefore, some aggrieved parties may not get justice at all as some of the words used in the statute may favor a defendant who may have actually committed an offence.
The Mischief Rule (Purposive Approach)
This is another crucial rule and approach utilized by judges in the interpretation of an Act of Parliament. The mischief rule (purposive approach) was clearly defined in the case of Conway v. Rimmer as a rule of construction that judges can effectively apply in statutory interpretations in a bid to reveal the intention of the Parliament. In the course of applying this rule in the interpretation of an Act of Parliament, judges always pose the question; what was the “mischief” that was not covered by the previous law that Parliament was seeking to address when it passed the law that is being currently reviewed by the court? It is also crucial to understand that the mischief rule (purposive approach) is narrowly applied compared to the other approaches because it is strictly applied in the interpretation of statutes that were passed by Parliament to remedy a particular defect in the law. Fenwick (2003, p71) reiterates that this rule was effectively used in the case of Smith v Hughes in 1960. In this case, it was a crime for prostitutes to “loiter in the streets with the purpose of prostitution.” It was alleged that defendants in the case were calling to men in the street from balconies and the tapping of windows. Therefore, defendants claimed that they were not guilty because they were not in the street. However, the judge applied the mischief rule and found them guilty because the intention of the Act of Parliament was to cover the harassment emanating from prostitutes.
One of the main advantages of this rule or approach is that it produces more sensible outcomes because of the powers given to judges to identify any form of mischief in the law. This approach plays a vital role in leading to more sensible judgments because judges have the powers to review laws and point out any mischief that may be existing in such laws. This means that they have the discretion to determine cases in the most appropriate manner and ensure that they come out in a satisfactory manner that reflects a high sense of appreciation from all parties.
More so, this rule is advantageous because it gives judges the power to change some of the laws that may contain mischief hence indicating its flexibility and adaptability to different cases. According to Huxley-Binns and Martin (2013, p41), this rule is extremely flexible as it gives judges the opportunity to review the intentions of the Act of Parliament hence ensuring that they are determined in line with a reasonable thinking. This sense of flexibility in the application of the rule plays an assistive role in leading to better practices in law. Therefore, the rule is not strict in its appreciation of the need to identify some of the mischiefs that could limit appropriate judgments.
The key disadvantage of this rule relates to its narrower application by judges. Notably, judges are limited to apply the mischief rule in cases where a statute was passed to remedy a defect in the common law. This brings about a challenge to judges in cases where there may be existing statutes that are characterized by mischief. This limitation has a negative effect on the determination of cases in the required manner, as judges end up holding them in line with the existing laws. Thus, the mischief rule is advantageous because of the limits it imposes on judges in terms of applicability. This affects judgments negatively.
The Golden Rule (Contextual Approach)
The golden rule, also referred to as the contextual approach, is also applied by judges in the interpretation of an Act of Parliament. Laster (2001, p30) opines that the golden rule gives judges the permission to depart from the literal rule in cases where the meaning of words leads to consequences that may turn out as ambiguous or absurd. In the application of the golden rule (contextual approach) the grammatical and natural meaning of words is to be observed unless in circumstances where they would lead to some form of absurdity, inconstancy, or some form of repugnancy with the rest of the instrument. In this case, the ordinary meaning of these words may be modified to avoid the inconsistency or absurdity, but not farther. The golden rule was effectively applied in the case of Alder v George in 1964. In line with this case, it was an offense to obstruct any member of the armed forces “in the vicinity” of a forbidden place. The defendant in the case was in the prohibited place and not in “its vicinity” during the time of obstruction. In this regard, the court tasked with the duty to determine whether “in the vicinity” included in or on the premises. However, the court determined that vicinity included in or on the premises hence upholding the conviction of the defendant.
This rule is advantageous in the manner it allows judges to eliminate ambiguities in the meaning of words hence leading to more sensible judgments. It is crucial to note that judges are given full powers to eliminate any form of inconsistencies and ambiguities that exist in the meaning of the words used in the interpretation of the Act of Parliament. This eliminates chances of some individuals getting away with offenses that could have been vindicated by the existence of such meanings. Thus, the wide application of the golden rule plays an assistive role in leading to more reasonable judgments depending on the nature of the case. It eliminates the undue advantage that could have been granted to some individuals in light of ambiguous and inconsistent meanings. Judgments are able to come out in the clearest manner possible in line with more precise meanings of the words and the understanding of the cases determined by judges.
The main disadvantage of this rule is that it may be easily manipulated by judges to fulfill some of their personal objectives. A judge may easily point to inconsistencies that may be in not be truly inexistent in the determination of particular cases (Sueur, et al., 2013). In this regard, some aggrieved individuals may fail to access justice with the emphasis that the meanings of words in their case is inconsistent. The powers given to judges in the wide application of this rule could affect the nature of judgments, as they could change some meanings of words to match their intentions. Therefore, this rule offers a negative space for judges to twist some meanings of the words to suit their reasoning about the cases. This makes it difficult for some individuals to access justice, as some words may be changed in the manner that does not necessarily favor their position.
In conclusion, judges are allowed to apply three key rules/approaches in the interpretation of an Act of Parliament. These rules/approaches play a vital role in ensuring that proper judgments are made in cases involving diverse matters. The literal rule (constructionist approach) is mainly applied in the establishment of the meanings of words as set out in the statutes. It is advantageous because it leads to better judgments in line with then natural meanings of words. However, it tends to limit the judges’ ability to make suitable changes in cases where words are deemed precise. The mischief rule (purpose approach) is applied by judges in the determination of any “mischief” in the statute. Any form of mischief is eliminated to lead to more effective judgments. Lastly, judges also apply the golden rule (contextual approach) to change the meaning of words in cases where their meanings lead to inconsistencies and ambiguity. It is advantageous because it allows judges to eliminate ambiguities in cases before making appropriate judgments. The application of these rules has enabled the judges make informed decisions with a high sense of professionalism and a justification of the decisions made in diverse cases presented to the court.
Charman, M., Vanstone, B. & Sherratt, L., 2012. AS Law. revised ed. London: Routledge.
Denoncourt, J., 2009. Q&A business law 2009-2010. illustrated ed. London: Routledge.
Fenwick, H., 2003. Text, cases and materials on public law and human rights. revised ed.
New York: Cavendish Publishing.
Huxley-Binns, R. & Martin, J., 2013. Unlocking the English legal system. Third Edition ed.
Laster, K., 2001. Law as culture. revised ed. New York: Federation Press.
Sueur, A. L., Sunkin, M. & Murkens, J., 2013. Public law: Text, cases, and materials.
illustrated ed. Oxford: Oxford University Press.
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