Why are rules of interpretation required by the courts?

It is the job of the courts to interpret legislation and in so doing must employ certain approaches in ensuring the provisions of statutes achieve their intended aims and objectives. The courts must interpret legislation because of faults and obscurities which may arise, due to:

-Words are an imperfect means of communication, and may have various meanings, thus leading to ambiguity

-Broad terms are often used by the parliamentary council, take for instance ‘animals’- would that include both wild and domestic or either of them.

-New developments in areas such as technology and medicine. The legislation always can’t be drafted to foresee future advancements as the world is very dynamic so the courts ought to be creative to cover up for developments not included in provisions.

-Errors which occur in the process of printing or drafting legislation as seen in the DANGEROUS DOGS ACT [1991] [1] 

-The drafts men of the parliamentary, may intentionally omit words, with the reasoning that the courts ought to imply them whilst interpreting

The courts must ensure that the above outlined faults in statutes and their provisions must be curbed in their adjudication process. In doing so courts employ various forms of interpretation approaches such as the purposive, literal, mischief and golden approach and apply the rules of language. These methods of interpretation have been developed over years to give statutes their true and intended meanings. The methods of interpretation also aid parliament, in fulfilling the main aims and objectives set out in their legislations. So for example, in the Heydon’s case [2] which involved an ambiguous statute, where the golden and literal rules were applied and were seen to have raised obscurities, the courts developed the mischief rule to better interpret the case and statutory provision in question.

Purposive approach

Lord Diplock in carter v. Bradbeer [3] , noted the transition of the literal approach used by the courts, to the mischief approach; which looks at the vice being prevented by a piece of legislation, through to the purposive approach.

The purposive approach, involves looking at the general purpose of an act including, its social, political and economic context. The courts look into parliaments reasoning behind the creation of the legislation, and associate every word in a statutory provision with its legal meaning as a means of establishing what meanings parliament intended the words to have. In applying the purposive approach, the courts sort to portray the intentions of parliament behind a statute during interpretation.

Teleological approach

Teleology is a philosophical concept, which is used in instating or supporting the existence of God based on apprehended proof of order. The teleological style of interpretation is based on the purpose, direction or design of the text/legislation faced by the courts. This approach is increasingly applied by the Courts, and is peculiarly appropriate in Community law where the Treaties are drafted in broad and flexible structures to accommodate differences in various member states and so provide broad programs or designs rather than detailed blueprints and It uses words and phrases without defining what they mean, creating potholes which the courts must fill in the process of interpreting the law.

The ECJ begins from the words of the text at hand, which is the usual starting point in interpreting legislations/statutes; the ECJ may have to disregard the literal process of interpreting in order to give effect to the aim and objective of the legislation. The difficulty of relying on a literal interpretation of Community provisions given the absence in the definition of terms used was pointed out by Lord Denning in Bulmer v. Bollinger [4] . The courts set aside arguing about the precise grammatical sense in question as seen in the case of commission v. council [2005] [5] . The case best explains the shift from the literal to the teleological approach. The ECJ examines the purpose and intent of E.U legislation/Treaty, and make sure legislations are interpreted to give effect to the spirit of the legislation which covers its aims and objectives. If they find themselves a case which isn’t covered in the wordings of a legislative provision but falls into its aims and purpose, they must interpret it in the best way possible to bring the case within the scope of the provision.

Rules of language

These are Latin rules governing and aiding the interpretation of legislation. They are as follows.

Edjusden generis- This means that when a general word comes after a specific word the general word will relate to the genre and are of the same kind, class or nature as the specific words as applied in the case of Powel v Kempton Park Racecourse [1899] [6] 

Noscitur a sociis- Translated ‘A word is identified by the company it keeps’ this means that individual words get their meaning from surrounding words, so the courts look at the related or surrounding words in the act to get the true meaning of the word in question as in the case of Bourne v Norwich Crematorium [1967] [7] 

Expresso unius est exclusion alterius- This is translated, the mention of one thing excludes others. So where specific words aren’t followed by general words the Act only applies to the listed specific words Tempest v Kilner [1846] [8] 

Judges are often accused of making law, discuss.

The major role of judges in the constitution is to uphold and interpret the laws created by parliament and to also enforce common law principles. The normal view is that Judges do not make law. However, the view is contradicted in a number of circumstances where judges have to interpret legislation, fill in the gaps in statutory provisions and apply common law precedents. Philosophers, the likes of Ronald Dworkin and H.L.A Hart have affirmed and negated the view of whether judges make law or not, setting out their own principles and theories. I will be discussing the issue by examining the above mentioned circumstances and the views of Ronald Dworkin and H.L.A Hart.

Circumstances where judges are seen to make law arise where certain issues are not provided for in statute or statutory terms prove to be ambiguous and the courts have to interpret the statute to cover the case. In such circumstances judges sometimes go beyond mere interpretation, creating their own principles in judging. Whatever principles included by the judges, later becomes part of the precedent, which inferior courts must follow as though it were one created by statute, indirectly being implied becomes law. The doctrine of Precedent is one where a case decided by a superior court, binds and must be followed by the courts inferior. In applying the doctrine of judicial precedent, judges may create a latter precedent to overrule a former precedent, or for a creative judge; s/he may interpret the precedent to give it a different perspective.

The Factortame case [1990] [9] shows how high court judges hearing the case at first instance, quickly made provisions for issues not expressly covered by the statute, Merchant Shipping Act [1988] [10] . As a result of the E.C.J decision ordering the statute incompatible, the House of Lords developed a doctrine to allow the statute in question "misapplied". It was confirmed in the case that the courts could order inapplicable statutes not compatible with community law. The courts in the Factortame case took on a role of legislature, breaching parliamentary rule that no external body can override parliamentary legislations.

The next phase of this discussion looks at arguments placed by philosophers, Ronald Dworkins and H.L.A Hart. Hart was a positivist who impliedly supported the view that judges did make law, and supported the view in his theories. Hart’s most relevant being the ‘open texture theory of the rule of law’, which refers to the ambiguity of words and how courts ought to be given discretionary privilege in applying rules when a case is not governed by existing law. Hart gives three reasons why such discretionary privileges should be given to judges:

Language is indeterminate

General standards are employed in the rules; words like fairness and reasonableness impose broad standards to cover different kind of situations. Hence, ambiguity would arise because of the uncertainty of such unclear, imprecise standards.

There is no clear rule governing the common law system of precedents, so judges can manipulate the rules gotten from precedents.

Hart concluded that, in a case where there wasn’t any relevant rule or law provided by statute, judges may exercise their discretion to create new laws. Unlike Hart, Dworkin held opposite views and strongly negated the argument of positivists. Dworkin stated that Hart’s theories neglect the moral principles that support legal rules and make up part of the law, and his theory envisages abuse of power as the courts would be viewed to also have legislative powers. Dworkin viewed the law as a ‘seamless web’ and instead of judges using discretionary powers; they could refer to enormous principles, rules and standards contained in the web of the law in solving ‘hard cases’.

After examining the arguments put forward by Dworkin and Hart’s, we see how they apply to judges making or simply interpreting law, by either filling loop holes not filled by statute using their assumed discretionary privileges; in being creative, they formulate their own principles, purported in Hart’s argument, or the courts referring to the law as a guidance in adjudicating, purported in Dworkins argument.

In conclusion, I place myself between both theories. I accept Hart’s theory that there are loop holes in the legal system, legislations cannot cover up for every case and such discretionary powers give the skeleton of the legal system its flesh. But Dworkins theory seems to hold sway, as it defines better the nature of the law and its enormity. Dworkin also points out that the law is made up of a seamless web of rules, standards and principles. It is to be better viewed that the courts look into the seamless web of the law in adjudication rather than them making up their own laws.