• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Is any act of statutory interpretation a arbitrary choice by a judge?

Extracts from this document...

Introduction

In what way can the different 'rules' of statutory interpretation be understood as forming a coherent process of interpretation, or is any act of statutory interpretation an arbitrary choice by a judge? It has been said that there are three 'rules' of statutory interpretation - the literal, the golden, and the mischief rule. It is clear that contrary to the label of 'rules' widely given to them, they are more sensibility regarded as approaches. The moot point has rather been on the way judges utilize these three approaches. Do they give each one equal consideration in a religious way, or do they simply use them as post hoc justification to their decisions? In looking for an answer to the question of how judges interpret statutes, history would always prove to be an appropriate source to start with. The English legal history starts with the defeat of the Saxon king by Norman William the Conqueror in 1066. At that point, law, if any, was transmitted in the form of local customs, informal and merely used for the practical end of enforcing compensation in order to preventing bloodshed. It is largely agreed by historians that William left the laws alone. Nevertheless, gradually local customs gave way to one unified body of laws. In a contest for power with the church's courts and the attempt to centralize power, King Henry II, great-grandson of William, soon after his accession in 1154 sent ...read more.

Middle

A corresponding reason is for deference to Parliament's sovereignty. Unsurprisingly, absurd results were produced. In R v Harris, merely because the word 'wound' in the statute was used with the word 'stab' which has a dictionary meaning of 'to pierce or wound with or as if with a pointed weapon', an accused was acquitted on the ground that teeths were not weapons. Zander criticized the literal approach as being 'mechanical, divorced both from the realities of the use of language'. The reason why an issue of statutory interpretation was raised in court was precisely because the words in questions were capable of having two or more meanings. To use the literal approach is to ignore the indeterminancy and ambiguous nature of the english language. The courts subsequently developed a modified version of this approach, the 'golden rule'. As stated by Lord Wensleydale in Becke v Smith( 1836), where the application of the literal approach leads to a manifest absurdity, the judges could adapt the language of the statute in order to produce a sensible outcome. But that appeared to be no different from the literal approach. Both confined interpretation to the four corners of the statute paper. They prioitise what Parliament said over what it may have meant. The question that has always occupied much academic discussion until today is: can we make sense of the various approaches taken practice to statutory interpretation in the English legal system? ...read more.

Conclusion

The contemporary problem is where are the courts to look for evidence in applying the purposive approach to discover the original intention of Parliament? In Pepper v Hart the HOLs decided to allow the courts to refer to Hansard. Lord Mackay, the then Lord Chancellor dissented and claimed that it would be meaningless to do so and it would lead to extra expenses, since lawyers will need to spend time searching the Hansard for ministerial statements. He proved to be correct. The courts subsequently admitted that Hansard proved to be slightest bit helpful and proved time consuming. Whether opening up the range of sources for intertepretation helps or hinders the process of SI is still very much open to question. Hence, the conclusion that can be drawn in response to the question is thus, though there are still conflicting and irresolvable opinions on the specific way judges interpret statutes by, it is safe to assume that the general judicial approach to statutes changes with time. Two centuries ago, the predominant approach is the literal or textualist approach, under which judges bicker about the dictionary meaning of a word in the statute and pretend ignorant to any external contextual information regarding its meaning; contemporarily, while the literal and golden approaches have lost their credibility, judges are more ready to look for meaning of words in statutes by taking a more purposive approach, via the inquisition of external evidence. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Machinery of Justice section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Machinery of Justice essays

  1. Marked by a teacher

    Describing the Rules and Aids to Statute interpretation. Including Advantages and Disadvantages.

    4 star(s)

    In the Re Sigsworth case the defendant had murdered his mother and was set to inherit her state as he was her next of kin by being her 'issue'. The problem was that is was grossly unfair that the defendant should profit from his crime and so the court applied

  2. "If the Constitution is the source of governmental power, and the judiciary interprets the ...

    Now we can see the judiciary in a new light. Justice Roberts's bureaucratic body with little power for actually governing is replaced by a Judiciary with the power to alter the moral foundation on which laws are built. The judiciary in fact cannot propose public policy.

  1. Notes on Sentencing in British courts

    o To persons who were victims or affected. o Community at large. o Max 24hrs completed in 3 months. Discharges o Any age, usually young, first time, minor offence. o Cannot conditionally discharge in following circumstances: 1. If have been warned within past 2 yrs. Exceptional circumstance to be explained in court.

  2. A critical evaluation of labelling theory.

    This could be interpreted as forming a criminal subculture, and hence the individual is forced deeper into their 'criminal career'. However this does not seem to take into account those offenders who after being convicted feel such shame at their actions and the reaction of society that they actually try

  1. Describe with the aid of examples, the authorities, representative bodies or persons that exercise ...

    that are usually performed by the Court or by the liquidator under the authority of the Court. * "The initiative in embarking upon the voluntary winding up rests entirely with the company. Moreover, the conduct of the proceedings in a voluntary winding up is placed in the hands of a

  2. Explain the ranges of sentences available to the judge or magistrate.

    These ideas largely stem from religious influences on our culture. However, a deeper psychological explanation has been argued to exist, underlying the offender's need for expiration. Guilt is a state of tension which gives rise to a need for the removal of this tension.

  1. The Canadian Justice system towards aboriginal offenders

    The technicalities of the sentencing circle serve to reinforce its adherence to the values of restorative justice. The ideal result of this procedure is "a sentence shaped by all participants and endorsed by the community that will be participating in its implementation".19 Justice Stewart, in his judgment in R. v.

  2. Expert Testimony and Its Value In the Justice System

    This allows differences in opinion to be found immediately but also allows an opportunity for the experts to explain their differing views. If they cannot reach upon an agreement then it is still easier for the judge, or jury, to make a decision on which evidence to believe as they

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work