• 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...


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.


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.


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)

    This rule means that the words will be followed according to their literal meaning even if that means producing an absurd decision, its objective is to use the intentions that Parliament expressed in the words used.

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

    Furthermore, all persons owe duties to others not to infringe their rights. Justice and fairness ensure that all persons must bear the consequence of obeying the law equally. Thus punishment is necessary to remove the benefits gained by the offender.

  1. Notes on Sentencing in British courts

    o Main idea is to build cooperation between agencies involved, social & probation. o These teams coordinate provisions of youth justice in an area. o Must contain probation, social and police worker. Local health education and others can join. o Remember anyone warned must be referred to YOT.

  2. Penal Studies for Professional Practice

    Additionally, under the current release policy, those sentenced to less than 12 months are not included in the arrangements for Automatic Conditional Release (ACR) or Discretionary Conditional Release (DCR) (Criminal Justice Act 1991) and therefore leave prison free of licences or conditions (Burnett & Roberts 2004, p218).

  1. One method a judge can use to interpret the factitious statue is using three ...

    An example of this rule in practice is in the case of Adler v George (1964). The defendants were prosecuted under the Official Secrets Act 1920 which made it an offence to obstruct HM Forces 'in the vicinity of' a prohibited place.

  2. Microsoft Antitrust Case Microsoft is a large diversified computer software manufacturer. Microsoft produces ...

    Microsoft illegally attempted to monopolize the market for Internet browsers (but failed to succeed). And act that is illegal under �2 of the Sherman Antitrust Act. 4. Microsoft bundled anti-competitively its Internet browser, Internet Explorer, the Microsoft Internet browser, with it Windows operating systems; that it is illegal under �1 of the Sherman Antitrust Act.

  1. Policing Using New Technologies

    The evidence obtained isn?t necessarily accurate as the evidence may have been tampered with, and like any other method/technique used by forensic scientists it is very likely to be exposed to human error. (DNA Profiling, INTERPOL, 2009) Capsicum Spray (OC Spray)

  2. Expert Testimony and Its Value In the Justice System

    As the example shows the Prosecutor?s Fallacy occurs when a set of statistics which is correct for one situation is taken and applied to another situation where it is no longer correct. In this example it may be true that only ?one in a million? would have the DNA profile

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