Purposive construction is the interpretation of a statute with the intention of knowing the purpose of the statute. Such construction aims to know the evil that the statute is trying to correct. It is also termed as teleological interpretation.
- 1 How does the golden rule fit into the purposive approach?
- 2 What is golden rule of interpretation?
- 3 What is Ejusdem generis rule?
- 4 What is mischief rule of interpretation?
- 5 What is the mischief rule also known as?
- 6 How mischief rule is different from literal rule?
- 7 What is Ejusdem generis and Noscitur Sociis?
- 8 What is the harmonious construction rule?
What is meant by the purposive approach?
The purposive approach has its roots in legal systems based on civil codes. It is a method of statutory interpretation which considers the purpose of the provision and interprets the provision in accordance with that purpose.
What is the focus of the purposive approach as a rule of statutory interpretation?
The purposive approach to statutory interpretation is used in the European Court of Justice. The literal rule would be of little use in the European Courts since there are several languages in operation and translation is not an exact science. Domestic judges are required to apply the Purposive approach whenever applying a piece of EU law.
Lord Simon explained the purposive approach in Maunsell v Olins AC 373 Case summary ‘The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had being thus placedthe court proceeds to ascertain the meaning of the statutory language.’ Thus the purposive approach to statutory interpretation seeks to look for the purpose of the legislation before interpreting the words.
It has often been said that the purposive approach is a mixture of the domestic rules, however, whereas the domestic rules require the courts to apply the literal rule first to look at the wording of the Act, the purposive approach starts with the mischief rule in seeking the purpose or intention of Parliament.
It is therefore a much more flexible approach giving judges greater scope to develop the law in line with what they perceive to be Parliament’s intention. The purposive approach more readily embraces the use of extrinsic aids to assist in finding Parliament’s intention. For example in relaxing the rule on reference to Hansard in Pepper v Hart the House of Lords adopted a purposive approach.
The courts are required to apply the purposive approach when interpreting EU law. The courts have used it when interpreting domestic legislation to give an interpretation in line with EU law. For example see: The purposive approach has been highly influential and judges have applied it when interpreting domestic legislation which has no connection with EU law: Advantages of the purposive approach
It is a flexible approach which allows judges to develop the law in line with Parliament’s intention (eg Maunsell v Olins ) It allows judges to cope with situations unforeseen by Parliament (eg Quintavalle ) It allows the law to develop to cover advances in medical science (eg Quintavalle ) It allows the courts to give effect to EU Directives ( Pickstone v Freemans ) Allowing reference to Hansard makes it easier for the courts to discover Parliament’s intention ( Pepper v Hart )
Disadvantages of the purposive approach
Judges are given too much power to develop the law and usurping the power of Parliament Judges become law makers infringing the Separation of Powers (Montesquieu) There is scope for judicial bias in deciding what Parliament intended It assumes Parliament has one intention and ignores the fact that Parliament is divided on party lines Allowing reference to Hansard may lead to prolonged examination of irrelevant material by lawyers which adds to the cost and length of litigation (See Lord Mackay in Pepper v Hart )
The Purposive Approach to Statutory Interpretation
What is the difference between the mischief rule and the purposive approach?
5. Jurisprudential Aspects and Significance of Rule of Purposive Interpretation – International Journal of Legal Science and Innovation Vijay Awana Advocate, Supreme Court of India The phrase “purposive interpretation” occurs often in court decisions and legal literature alike.
- The common thread running through most references to purposive interpretation is the understanding that “purpose” is a subjective term.
- It reflects, at various levels of abstraction, but mostly at the highest levels of abstraction, the intention of the text’s creator.
- Bennion, who devotes a lengthy chapter to purposive interpretation notes that the historical source of purposive interpretation is the mischief rule established in Heydon’s Case.
The purposive approach has gained support in recent years. In 1969 the Law Commission urged the courts to implement this approach. It has been the long-established approach of the courts in European jurisdictions. The statutes in these countries are articulated in broad general principles and the courts “fill the gaps” by interpreting them in the context of their legislative purpose.
In relation to statutory interpretation and the purposive approach, ‘what is at stake is the separation of powers and respect by the judicial branch of government for the powers of the legislative branch.’ It is clear that although the purposive approach may result in some benefits, its application brings with it significant difficulties and problems.
The Purposive Approach to statutory interpretation can be seen as an extension of the Mischief Rule. Instead of confining itself simply to the mischief which the statute was intended to correct, the court resolves ambiguities by reference to the statute’s overall purpose.
How does the golden rule fit into the purposive approach?
Mischief rule – In Construction of Statutes, Elmer Driedger defines the mischief rule as follows: A statute is to be so construed as to suppress the mischief and advance the remedy, thus giving the courts considerable latitude in achieving the objective of the legislature despite any inadequacy in the language employed by it.
|1st.||What was the common law before the making of the Act.|
|2nd.||What was the mischief and defect for which the common law did not provide.|
|3rd.||What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth.|
|4th.||The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico,|
The mischief rule saw further development in Corkery v Carpenter (1951). In a decision of the Court of King’s Bench, the Court had to decide whether a bicycle could be classified as a carriage. According to S.12 of the Licensing Act 1872, a person found drunk in charge of a carriage on the highway can be arrested without a warrant.
A man was arrested drunk in charge of a bicycle. According to the plain meaning rule, a bike is not a carriage. Under the Mischief rule, the bicycle could constitute a carriage. The mischief the act was attempting to remedy was people being on the road on transport while drunk. Therefore, a bicycle could be classified as a carriage.
In Smith v Hughes (1960), the defendant was charged under the Street Offences Act 1959, which made it an offence to solicit prostitution in a public place. The defendant was soliciting from within private premises (windows or on balconies), so they could be seen by the public without entering into the streets.
The court applied the mischief rule holding that the defendant’s activities were within the mischief of the Act, and soliciting from within a house is soliciting and molesting of the public. Therefore, it is the same as if the defendant was outside on the street. In Royal College of Nursing of the UK v DHSS (1981), the Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions,
The Offences Against the Person Act 1861 made it an offence for any person to carry out an abortion. The Abortion Act 1967 provides an absolute defence for a medical practitioner provided certain well-known conditions are satisfied. Discoveries in medicine meant surgery has more often been replaced with the administration of hormones, commonly by nurses.
What is golden rule of interpretation?
Meaning of Golden Rule: – The golden rules departs from its strictly literal rules, it is elaboration or extension of literal rule. Golden rule of interpretation allows judges to depart from a word normal meaning in order to avoid an absurd result. According to the golden rule in the construction of a statute, the Court Must Adhere to the ordinary meaning of the words used in the construction of the words used.
Golden rule can be used in a narrow sense and wider Sense. Narrow approach: The narrow approach is used when the word used in the statute is ambiguous which means it has more than one meaning. Its upon the judge to use the meaning which is acceptable to the case. Wide approach: The wide approach is often used when there’s just one literal meaning of a word, however, to use it might be absurd.
Therefore, the court may modify the meaning of the word to avoid absurdity. Indian Case Law In India there are several good examples where the Supreme Court or High Courts have applied the Golden Construction of Statutes: In Ramji Missar v. State of Bihar in construing section 6 of the Probation of Offenders Act, 1958, the Supreme Court laid down that the crucial date on which the age of the offender had to be determined is not the date of offence, but the date on which the sentence is pronounced by the trial court An accused who on the date of offence was below 21 years of age but on the date on which the judgment pronounced, if he was above 21 years, he is not entitled to the benefit of the statute.
- This conclusion reached having regard to the object of the Act.
- The object of the Statute is to prevent the turning of the youthful offenders into criminals by their association with the hardened criminals of mature age within the walls of the prison.
- An accused below 21 years is entitled to the benefit of the Act by sending him under the supervision of the probation officer instead of jail.
Lee v. Knapp (1967) In this case, interpretation of the world ‘stop’ was involved. Under section 77(1) of the road traffic Act, 1960 a driver causing an accident shall stop after the accident. In this case, the driver stopped for a moment after causing an accident and then moved away.
- Applying the golden rule the Court held that requirement of the section had not been followed by the driver as he had not stopped for a reasonable time of period Requiring interested persons to make necessary inquiries for him about the accident. In U.P.
- Bhoodan Yagna Samiti v.
- Brij Kishore, the Apex Court held that the meaning of the term ‘landless person’ under Section 14 of the Bhoodan Yagna Act, 1953, signified ‘landless labourers’ only, and not ‘landless businessmen’.
The object of the Act was to provide land to labourers engaged in agriculture, and not to businessmen. In State of Mysore v. Sundaram Motor Private Ltd, In this case ambiguity wsa motor vehicle kept in the state According to Section 3(1) of Mysore motor vehicle Act all the motor vehicles were taxed.
- So it was held that motir vehicle kept in the state was those vehicles which qre using all facilities provided by Mysore state.
- Dimakuchi the state v.
- Management (AIR) 1958, In this case the expression was interpreted under section 2k Industrial dispute Act,
- The expression by person was constitute the scheme and object of the act.
Any person is only the person who have direct and substantial Interest in industry. A stronger cannot be considered any person under Industrial dispute Act.
What is Ejusdem generis rule?
Ejusdem Generis A Latin phrase meaning “of the same kind”. The rule requires that where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specifically mentioned.
What is the purposive rule in law?
What does Purposive approach mean? – The purposive approach to interpreting legislation looks beyond the words of the legislation at the purpose behind it, and the legislation is seen as a skeleton of the law for the judges to flesh out in time. The purposive approach has its roots in legal systems which are based on civil codes and is sometimes referred to as the teleological approach.
What is mischief rule of interpretation?
FAQ 2. What is the Mischief Rule in the interpretation of statues? – The mischief rule of statutory interpretation is the oldest of the rules. The mischief rule is a rule of statutory interpretation that attempts to determine the legislator’s intention.
Its main aim is to determine the “mischief and defect” of the statute. The mischief rule was established in Heydon’s Case in 1584, It was held that the mischief rule should only be applied where there is ambiguity in the statute. Under the mischief rule the Court’s role is to suppress the mischief and advance the remedy.
The Courts while applying the principle tries to find out the real intention behind the enactment. This rule thus assists the court in identifying the proper construction of statutory wording according to the original intention of the legislators. As per this rule, for true interpretation of a statute, four things have to be considered:
What was the common law before the making of the Act? What was the mischief and defect for which the common law did not provide? What remedy Parliament had resolved and appointed to cure the disease of the Commonwealth? The true reason of the remedy.
The mischief rule directs that the Courts must adopt that construction which “shall suppress the mischief and advance the remedy”. But this does not mean that a construction should be adopted which ignores the plain natural meaning of the words or disregard the context and the collection in which they occur.
What is the purpose rule?
Purpose rule – An approach to statutory construction where a particular provision is. interpreted in accordance with the purpose of the statute.
What is the mischief rule also known as?
Case Laws – Smith v. Hughes The brief facts were that the defendant was a common prostitute who lived at No.39 Curzon Street, London and used the premises for the purposes of prostitution. On November 4, 1959, between 8.50 p.m. and 9.05 p.m. the defendant solicited men passing in the street, for the purposes of prostitution, from a first-floor balcony of No.39 Curzon Street (the balcony being some 8–10 feet above street level).
The defendant’s method of soliciting the men was (i) to attract their attention to her by tapping on the balcony railing with some metal object and by hissing at them as they passed in the street beneath her and (ii) having so attracted their attention, to talk with them and invite them to come inside the premises with such words as ‘Would you like to come up here a little while?’ at the same time as she indicated the correct door of the premises.
It was contended on behalf of the defendant, inter alia, that the balcony was not ‘in a Street’ within the meaning of section 1(1) of the Street Offences Act, 1959, and that accordingly no offence had been committed. “The sole question here is whether in those circumstances the appellant was soliciting in a street or public place.
The words of s.1(1) of the Act are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution’. Lord Parker CJ said Case that she ‘ being a common prostitute, did solicit in a street for the purpose of prostitution, contrary to section 1(1) of the Street Offences Act, 1959.’ It was found that the defendant was a common prostitute, that she had solicited and that the solicitation was in a street.
The defendants in this case were not themselves physically in the street but were in a house adjoining the street, on a balcony and she attracted the attention of men in the street by tapping and calling down to them. At other part the defendants were in ground-floor windows, either closed or half open.
- The sole question here is whether in those circumstances each defendant was soliciting in a street or public place.
- The words of section 1(1) of the Act of 1959 are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.’ Observe that it does not say there specifically that the person who is doing the soliciting must be in the street.
Equally, it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street. For my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes.
Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street.
For my part, I am content to base my decision on that ground and that ground alone. Royal College of Nursing v DHSS The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences against the Person Act 1861 makes it an offence for any person to carry out an abortion.
The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (i.e. a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses it was Held: It was legal for nurses to carry out such abortions.
The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act. Elliot v Grey The defendant’s car was parked on the road.
It was jacked up and had its battery removed. He was charged with an offence under the Road Traffic Act 1930 of using an uninsured vehicle on the road. The defendant argued he was not ‘using’ the car on the road as clearly it was not driveable. It was held: The court applied the mischief rule and held that the car was being used on the road as it represented a hazard and therefore insurance would be required in the event of an incident.
The statute was aimed at ensuring people were compensated when injured due to the hazards created by others. Corkery v Carpenter The defendant was riding his bicycle whilst under the influence of alcohol.S.12 of the Licensing Act 1872 made it an offence to be drunk in charge of a ‘carriage’ on the highway.
- It was held: The court applied the mischief rule holding that a riding a bicycle was within the mischief of the Act as the defendant represented a danger to himself and other road users.
- According to S.12 of the Licensing Act 1872, a person found drunk in charge of a carriage on the highway can be arrested without a warrant.
A man was arrested drunk in charge of a bicycle. According to the plain meaning rule a bike is not a carriage. Under the Mischief rule the bicycle could constitute a carriage. The mischief the act was attempting to remedy was that of people being on the road on transport while drunk.
- Therefore a bicycle could be classified as a carriage.
- DPP v Bull A man was charged with an offense under s.1(1) of the Street Offences Act 1959 which makes it an offense for a ‘common prostitute to loiter or solicit in a public street or public place for the purposes of prostitution’.
- The magistrates found him not guilty on the grounds that ‘common prostitute’ only related to females and not males.
The prosecution appealed by way of case stated. The court held that the Act did only apply to females. The word prostitute was ambiguous and they applied the mischief rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report into homosexuality and prostitution.
- The Report only referred to female prostitution and did not mention male prostitutes.
- The QBD, therefore, held the mischief the Act was aimed at was controlling the behavior of only female prostitutes. Brown v.
- Brown In Brown v Brown, Sir Jocelyn Simon P said that the disadvantage of the old law on condonation of adultery was that, though a resumption of cohabitation might actually promote a reconciliation which had yet taken place, a wronged spouse might be reluctant to resume cohabitation in case it did not succeed and he or she would then have lost the right to complain of the matrimonial offense.
The provision in s 2(1) of the Matrimonial Causes Act 1963 (now contained in s 42 of the Matrimonial Causes Act 1965) that adultery shall not be deemed to be condoned by reason of a continuation or resumption of cohabitation between the parties for a period of up to three months was, therefore, limited to cases within this ‘mischief’- where the cohabitation was with a view to effecting a reconciliation, and did not extend to cases where it was in consequence of re3conciliation.
- Sodra Devi v. Commr.
- Of Income Tax By s 16(3) of the Indian Income Tax Act 1922, ‘In computing the total income of any individual for the purpose of assessment, there shall be included so much of the income of a wife or minor child of such individual as arises indirectly or directly’ In CIT v Sodra Devi the court observed that the legislature was guilty of using an ambiguous term.
There is no knowing with certainly as to whether the legislature meant to enact these provisions with reference only to a male of the species using the words ‘any individual’ or ‘such individual’ in the narrower sense of the term indicated above or intended to include within the connotation of the words ‘any individual’ or ‘such individual’ also a female of the species.
Holding the words ‘any individual’ and ‘such individual’ as restricted in their connotation to mean only the male of the species, the court observed that the evil which was sought to be remedied was the only resulting from the widespread practice of husbands entering into nominal partnerships with their wives, and fathers admitting their minor children to the benefits of the partnerships of which they were members.
This evil was sought to be remedied by the Income-tax Act. The only intention of the legislature in doing so was to include the income derived by the wife or a minor child, in the computation of the total income of the male assessee, the husband or the father as the case may be for the purpose of the assessment.
RMDC v. UOI In RMDC v Union of India the definition of ‘prize competition’ under s 2(d) of the Prize competition act 1955, was held to be inclusive of only those instances in which no substantive skill is involved. Thus, those prize competitions in which some skill was required were exempt from the definition of ‘prize competition’ under s 2(d) of the Act.
Hence, in the aforementioned case, the Supreme Court has applied the Heydon’s Rule in order to suppress the mischief was intended to be remedied, as against the literal rule which could have covered prize competitions where no substantial degree of skill was required for success.
Bengal immunity co. v State of Bihar Within the context of law, the mischief rule is a rule of statutory interpretation that attempts to determine the legislator’s intention. Originating from a 16th century case in the United Kingdom, its main aim is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy.
When material words are capable of bearing two or more constructions the most firmly established rule for construction of such words “of all statutes in general” is the rule laid down in Heydons case also known as mischief rule. This rule is also known as purposive construction.
The rules lay down that the court should adopt the construction which shall suppress the mischief and advance the remedy. In the Indian context, the rule was best explained in the case of Bengal immunity co. v State of Bihar, The appellant company is an incorporated company carrying on the business of manufacturing and selling various sera, vaccines, biological products and medicines.
Its registered head office is at Calcutta and its laboratory and factory are at Baranagar in the district of 24 – Perganas in West Bengal. It is registered as a dealer under the Bengal Finance (Sales Tax) Act and its registered number is S.L.683A. Its products have extensive sales throughout the Union of India and abroad.
The goods are dispatched from Calcutta by rail, steamer or air against orders accepted by the appellant company in Calcutta. The appellant company has neither any agent or manager in Bihar nor any office, godown or laboratory in that State. On the 24th October, 1951 the Assistant Superintendent of Commercial Taxes, Bihar wrote a letter to the appellant company which concluded as follows :- “Necessary action may therefore be taken to get your firm registered under the Bihar Sales Tax Act.
Steps may kindly be taken to deposit Bihar Sales Tax dues in any Bihar Treasury at an early date under intimation to this Department”, The principal question is whether the tax threatened to be levied on the sales made by the appellant company and implemented by delivery in the circumstances and manner mentioned in its petition is leviable by the State of Bihar.
- This was done by construing article 286 whose interpretation came into question and the meaning granted to it in the case of The State of Bombay v.
- The United Motors (India) Ltd 6 was overruled.
- It raises a question of construction of article 286 of the Constitution.
- It was decided that Bihar Sales Tax Act, 1947 in so far as it purports to tax sales or purchases that take place in the course of inter-State trade or commerce, is unconstitutional, illegal and void.
The Act imposes tax on subjects divisible in their nature but does not exclude in express terms subjects exempted by the Constitution. In such a situation the Act need not be declared wholly ultra vires and void. Until Parliament by law provides otherwise, the State of Bihar do forbear and abstain from imposing sales tax on out-of-state dealers in respect of sales or purchases that have taken place in the course of inter-State trade or commerce even though the goods have been delivered as a direct result of such sales or purchases for consumption in Bihar.
What is the other name for mischief rule?
The Mischief Rule – Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive construction because the purpose of this statute is most important while applying this rule. It is known as Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584.
- What was the common law before the making of an act.
- What was the mischief for which the present statute was enacted.
- What remedy did the Parliament sought or had resolved and appointed to cure the disease of the commonwealth.
- The true reason of the remedy.
The purpose of this rule is to suppress the mischief and advance the remedy. Case laws Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting in the streets of London and it was creating a huge problem in London. This was causing a great problem in maintaining law and order.
To prevent this problem, Street Offences Act, 1959 was enacted. After the enactment of this act, the prostitutes started soliciting from windows and balconies. Further, the prostitutes who were carrying on to solicit from the streets and balconies were charged under section 1(1) of the said Act. But the prostitutes pleaded that they were not solicited from the streets.
The court held that although they were not soliciting from the streets yet the mischief rule must be applied to prevent the soliciting by prostitutes and shall look into this issue. Thus, by applying this rule, the court held that the windows and balconies were taken to be an extension of the word street and charge sheet was held to be correct.
Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the sweeten supari which was sweetened with the help of an artificial sweetener. He was prosecuted under the Food Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The court held that the dictionary meaning is not always the correct meaning, thereby, the mischief rule must be applicable, and the interpretation which advances the remedy shall be taken into consideration.
Therefore, the court held that the word ‘food’ is consumable by mouth and orally. Thus, his prosecution was held to be valid. Kanwar Singh v. Delhi Administration, AIR 1965 SC 871. Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised the corporation to round up the cattle grazing on the government land.
The MCD rounded up the cattle belonging to Kanwar Singh. The words used in the statute authorised the corporation to round up the abandoned cattle. It was contended by Kanwar Singh that the word abandoned means the loss of ownership and those cattle which were round up belonged to him and hence, was not abandoned.
The court held that the mischief rule had to be applied and the word abandoned must be interpreted to mean let loose or left unattended and even the temporary loss of ownership would be covered as abandoned. Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR 1962 SC 1526, Issue, in this Case, was that the respondent concerned was running a factory where four units were for manufacturing.
Out of these four units one was for paddy mill, other three consisted of flour mill, saw mill and copper sheet units. The number of employees there were more than 50. The RPFC applied the provisions of Employees Provident Fund Act, 1952 thereby directing the factory to give the benefits to the employees.
The person concerned segregated the entire factory into four separate units wherein the number of employees had fallen below 50, and he argued that the provisions were not applicable to him because the number is more than 50 in each unit. It was held by the court that the mischief rule has to be applied and all the four units must be taken to be one industry, and therefore, the applicability of PFA was upheld.
How mischief rule is different from literal rule?
Meaning and use – In Conway v Rimmer it was observed that judges can apply in statutory interpretation in order to discover Parliament’s intention. In applying the rule, the court is essentially asking what the mischief was that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court.
- The mischief rule is of narrower application than the golden rule or the plain meaning rule, in that it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to remedy a defect in the common law.
- Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes.
The application of this rule gives the judge more discretion than the literal and the golden rule as it allows Parliament’s intent to be taken into consideration. The way in which the mischief rule can produce more sensible outcomes than those that would result if the literal rule were applied is illustrated by the ruling in Smith v Hughes 2 All E.R.859.
Is golden rule and literal rule same?
Is the golden rule better than the literal rule of interpretation? – Both the literal and the golden rules have specific applications and thus cannot be compared. The literal rule is used in most cases to extract the true meaning of the statute through the plain reading of the language.
What is the narrow golden rule?
Describe the Golden Rule used in statutory Interpretation? The Golden Rule is used to interpret ambiguous meanings arising within Statutes. There are two forms of the Golden rule; narrow and wide. The Narrow approach as defined in Jones v DPP (1962) by Lord Reid states “If they are capable of more than one meaning, then you can choose between those meanings”.
- This occurred within R v Allen (1872) where the ambiguous definition of “shall marry” within the Offences against the Person Act 1861 for Bigamy was interpreted using the narrow approach of the golden rule.
- Shall marry” was interpreted to mean to go through with a marriage ceremony rather than legally marry because choosing legally marry would bring an absurd result; you cannot legally marry twice.
Therefore, Allen was found guilty of Bigamy by going through a marriage ceremony when interpreting the Statute using the narrow approach. Whereas, the wider approach allows for judges to interpret the statute not with choosing between ambiguous meanings but by choosing an entirely different meaning altogether to avoid absurd results.
In Re Sigsworth (1935) the Administration of Justice Act 1925 was interpreted using the wider approach to not allow a son who murdered his own mother to inherit where no will was established as this would bring the absurd result for rewarding homicide. Therefore the wider approach was used to determine that the Act included inheritance being allowed where it would not be a benefit to another crime by adding that interpretation rather than following the literal meaning of the words expressed in the Act.
To conclude, the golden rule in statutory interpretation can be done through two approaches, narrow and wider, as well as protect from absurd results which could arise using the literal interpretation of Statutes. : Describe the Golden Rule used in statutory Interpretation?
Why is it called golden rule?
From Simple English Wikipedia, the free encyclopedia The Golden Rule is a moral which says treat others as you would like them to treat you, This moral in various forms has been used as a basis for society in many cultures and civilizations, It is called the ‘golden’ rule because there is value in having this kind of respect and caring attitude for one another.
- People of many religions see the value of this mandate and have similar expressions.
- In Christianity, Jesus Christ taught this idea to his disciples and others when he gave his Sermon on the Mount,
- It is recorded in the Holy Bible in the book of Matthew, Chapter 7 and verse 12.
- Jesus explained to his listeners that all the things that were recorded in the Jewish law and that the prophets had taught about concerning morality was summed up in this one rule.
The context of this statement (Matthew 7) is about God’s mercy and kindness. The principle that was shared is to not always treat others as they might deserve to be treated, as we may judge some as undeserving, but instead to always be merciful and charitable, not withholding good.
In other religions and belief systems there is a similar concept of “the ethic of reciprocity”, also called the Golden Rule. They usually give a similar idea, although sometimes it has been expressed in the form such as “Do not treat others as you would not like to be treated.” One of the earliest rules of this type is from the Old Testament days of Moses : “Love thy neighbor as thyself” (Leviticus 19:18).
Similar rules have also appeared over time:
ca.950 BC: “.by making dharma (right conduct) your main focus, treat others as you treat yourself.” – Mahabharata Shānti-Parva 167:9 ( Hinduism ) ca.600 BC: “Avoid doing what you would blame others for doing.” – Thales (Greek philosopher) ca.500 BC: “Hurt not others in ways that you yourself would find hurtful.” – Buddha Udanavarga 5:18 ( Buddhism ) ca.500 BC: “A man should wander about treating all creatures as he himself would be treated.” — Sutrakritanga, 1.11.33 ( Jainism ) ca.480 BC: “Is there any one word that could guide a person throughout life?” The Master replied: “How about ‘shu’ : never impose on others what you would not choose for yourself?” – Confucius Analects 15:24 ca.400 BC: “Do not do to others that which angers you when they do it to you.” – Isocrates (Greek philosopher) ca.350 BC: “That which you hate to be done to you, do not do to another.” – Egyptian Papyrus, Brooklyn 47:218:135 ca.50 BC: “What you do not want to happen to you, do not do it yourself either.” – Sextius (Greek philosopher) ca.1 AD: “Do not do to others what you know has hurt yourself” – Tirukkural ( Tamil Hinduism) ca.400 AD: “What is hateful to you, do not do to your fellow: this is the whole Torah; the rest is the explanation.” – Babylonian Talmud Shabbath 31:a ( Judaism ) ca.600 AD: “None of you believes until he wishes for his brother what he wishes for himself.” – Muhammad, various hadiths ( Islam ) ca.800 AD: “Whatever is disagreeable to yourself, do not do unto others.” Shayast-na-Shayast 13:29 ( Zoroastrianism ) ca.1200 AD: “Regard your neighbor’s gain as your own gain, and your neighbor’s loss as your own loss.” Treatise on the Response of the Tao ( Taoism ) ca.1400 AD: “If the entire Dharma can be said in a few words, then it is — that which is unfavorable to us, do not do that to others.” Padmapuraana 19/357–358 ( Hinduism ) ca.1850 AD: “And if thine eyes be turned towards justice, choose thou for thy neighbour that which thou choosest for thyself.” Baha’ullah ( Baha’i Faith )
Which is the first rule of interpretation?
Literal Or Grammatical Rule Of Interpretation The literal rule of interpretation is the first rule to this interpretation. According to this rule, the words used in the text are to be given on interpreted in their natural or ordinary meaning.
What are the four rules of interpretation?
II. These tools fall into the following four categories: (A) the text of the statute; (B) legal interpretations of the statute; (C) the context and structure of the statute; and (D) the purpose of the statute.
What is Ejusdem generis and Noscitur Sociis?
32. The principal rule of ejusdem generis is one of the species of wider rule noscitur a sociis and is an application of the maxim. According to Maxwell this rule means that when two or more words which are susceptible of analogous meaning are coupled together; they are understood to be used in the cognate sense.
What is rule of bonam Partem?
Napoleon Becomes Emperor: After ruling France for five years, Napoleon decided to crown himself as Emperor of France. The decision was supported by the people of France. On December 2, 1804 Napoleon crowned himself emperor by placing the crown on his own head in the Notre Dame Cathedral in Paris.
What is the harmonious construction rule?
Harmonious construction is a principle of statutory interpretation used in the Indian legal system. It holds that when two provisions of a legal text seem to conflict, they should be interpreted so that each has a separate effect and neither is redundant or nullified.
When can the purposive approach be used?
This approach has emerged in more recent times. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve. Lord Denning in the Court of Appeal stated in Magor and St.
- Mellons Rural District Council v Newport Corporation (1950), ‘we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis’.
- This attitude was criticised on appeal by the House of Lords.
Lord Simmons called this approach ‘a naked usurpation of the legislative function under the thin disguise of interpretation’. He went on to say that ‘if a gap is disclosed, the remedy lies in an amending Act’. These comments highlight one issue with the purposive approach.
How Parliament’s intentions can be determined and whether judges should really be refusing to follow the clear words of Parliament. The purposive approach is one used by most continental European countries when interpreting their own legislation. It is also the approach which is taken by the European Court of Justice in interpreting EU law.
Since the United Kingdom became a member of the European Economic Community in 1973, the influence of the European preference for the purposive approach has affected the English courts in a number of ways. First, the courts have been required to accept that, from 1973, the purposive approach has to be used when deciding on EU matters.
Second, as they use the purposive approach for EU law they are becoming accustomed to using it and more likely to use it to interpret domestic law. One example is Pickstone v Freemans plc (1998). Here, women warehouse operatives were paid the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid £1.22 per week more than they were.
The employers argued that a woman warehouse operative was employed on like work to the male warehouse operatives,so she could not bring a claim under the Equal Pay Act 1970 section 1(2) (c) for work of equal value. This was a literal interpretation of the 1970 statute.
- The House of Lords decided that the literal approach would have left the United Kingdom in breach of its treaty obligations to give effect to an EU directive.
- It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her.
When using one of the rules of statutory interpretation the courts may rely on a presumption or secondary aids to assist them in making their decision.
What is the purposive approach to Charter interpretation?
The Purposive Approach – Purposive analysis, the cornerstone of Charter interpretation, requires that Charter rights be given a generous and liberal interpretation aimed at fulfilling the purpose of the right in question and of the Charter as a whole.
- The central precept of the purposive approach is that the meaning of the right must be understood in light of the interests it was meant to protect.
- This requires consideration of the relevant linguistic, philosophic and historical contexts.
- Regard must be had for the language used, other Charter rights with which the right is associated, and the need for Charter rights to be capable of development over time ( Hunter et al.v.
Southam Inc., 2 SCR 145 ; R.v. Big M Drug Mart Ltd., 1 S.C.R.295 ; Irwin Toy Ltd.v.A.G. Quebec, 1 S.C.R.927 ; R.v. Zundel, 2 S.C.R.731 ; R.v.K.R.J., 1 SCR 906, at paragraphs 37-38). Charter rights should be read broadly, putting the burden of justifying limitations on the state ( Beena B.v.
Children’s Aid Society of Metropolitan Toronto, 1 S.C.R.315 ; Ross v. New Brunswick School District No.15, 1 S.C.R.825 ; Harvey v. New Brunswick (Attorney General), 2 S.C.R.876 ). It is important not to “overshoot” the purpose of the right in question ( Big M Drug Mart, supra; R.v. Suberu, 2 S.C.R.460, at paragraph 24; R.v.
Grant, 2 SCR 353, at paragraphs 16-17). Internal exceptions to Charter rights should be subject to the same interpretive principles; courts should not “undershoot” the purpose of a Charter exception by giving it an unduly narrow interpretation ( R.v.
- Stillman, 2019 SCC 40, at paragraph 22).
- Within the purposive approach, the analysis must begin by considering the text of the provision.
- Giving primacy to the text as the first factor to consider within the purposive approach prevents an interpretation that overshoots or undershoots the purpose of the right ( Quebec (Attorney General) v.9147-0732 Québec inc,, 2020 SCC 32 at paragraphs 8-10).
The principle that a provision bearing more than one plausible meaning must be read in a manner that favours the accused is a principle of penal statutory interpretation, but not one of Charter interpretation. Charter rights and freedoms do not automatically receive the most generous interpretation that their language can bear.
What is the difference between literal and purposive approach?
While in Literal Rule, we act on the premise that whatever is the law is what the legislators actually intended to the exclusion of other things, whereas under the Purposive Rule of interpretation, we go beyond the stated law in order to find the intention of the legislators.
What are the advantages of the purposive approach?
Advantages: The purposive approach leads to justice being done in more individual cases. As it has a broad approach it allows the law to cover more approaches than simply applying the words literally.