it makes sense to look at the whole purpose of the act. What is the literal approach to statutory interpretation? EssaySauce.com has thousands of great essay examples for students to use as inspiration when writing their own essays. [/color] rule; HAS BEEN CRITIZIZED BY SOME JUDGES BUT PREFERED OVER ALL BY THE OTHER JUDGES. b. 5 What was the meaning of the Golden Rule? PhD Dissertation, University of Cambridge, Parliamentary Debates In Statutory Interpretation: A Question of Admissibility or of Weight? Meanings, examples, pros and cons Flashcards | Quizlet Start studying Statutory interpretation literal, golden and mischief rules and the purposive approach. To learn more, view ourPrivacy Policy. This is important as it stops unelected/appointed judges from making law, which would be contrary to the doctrine of the separation of powers. These cookies track visitors across websites and collect information to provide customized ads. The Mischief Rule gives the most discretion to judges and is suited to specific, often ambiguous cases. . 1 What are the differences between literal golden and mischief rule? This rule gives a judge more discretion than either the literal or the golden rule. He believed that the best way to restore economic prosperity was to raise tariff rates and reduce the governments role in economic activities. The purposive approach goes further by seeking to determine Parliament intentions in passing the act. the points are brief and easy to remember. Literal rule of interpretation The plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts. In this article, however, we argue that statutory meaning is inevitably determined by constitutional and normative desiderata which are irreducible to legislative intention. PURPOSIVE APPROACH The purposive approach is a modern version of the mischief rule. By clicking Accept All, you consent to the use of ALL the cookies. We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. The Golden Rule can help you build consistency as a leader and as an organization. Choice between SOAS UNIVERSITY OF LONDON AND QUEEN MARY UNIVERSITY, LONDON, (Law) Misrepresentation: Difference between negligent & fraudulent misrepresentation, Really struggling with my law assessments, OCR A Level Law Paper 2 The legal system and criminal Law H418/01 - 6 Jun 2022, AQA A Level Law Paper 2 7162/2 - 13 Jun 2022 [Exam Chat], OCR A Level Law making and the law of tort H418/02 - 13 Jun 2022 [Exam Chat], AQA A Level Law (options A and B) 7162/3A/3B - 20 Jun 2022 [Exam Chat]. Literal rule is a rule used to interpreting statutes. The purposive approach goes further by seeking to determine Parliament intentions in passing the act. One example of this is the. What is the difference between literal and purposive approach? In 1969 the Law Commission urged the courts to implement this approach. Overall the difference is that the literal approach is the interpretation of legislation applies the general rule that a court is bound by the words within the statute, but as where the two others are concerned they are the Golden Rule approach comes in when the Judge reluctant to use this approach by using phrases of . 3.3 The mischief rule. The literal approach to statutory interpretation ostensibly flatters the Parliament by saying that the Parliament must mean what it says: if the meaning of the words was clear, then the courts would apply that meaning regardless of the result; but it also protects the common law against excessive incursion by . The cookie is used to store the user consent for the cookies in the category "Analytics". The court is making a decision as to what they felt Parliament meant to achieve, not just looking to see what the gap was in the old law, as explained by Lord Denning in the Court of Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation . The statute did not cover oiling and so compensation wasnt given. In literal rule, the words in a statute are given its plain, ordinary, and literal meaning. In addition, European Community (EC) legislation can only be determined on the basis of a purposive approach, even though the dominant approach in relation to community legislation and some domestic legislation is the literal approach. difference between mischief rule and purposive approach. 2 What do you mean by mischief rule of interpretation? What did Executive Order 9981 desegregate? The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". [2] Whenever literal interpretation leads to an irrational result that is unlikely to be the legislature's intention, the court can depart from that meaning. When comparing the three rules there are differences and similarities. We argue that since the principle of legislative supremacy is so strongly qualified in the Irish context, it cannot support a theory of intentionalism in statutory interpretation. Under The Literal Rule, biting is not stabbing, cutting or wounding (implying the use of an instrument). All our essays are uploaded by volunteers. Meanings, examples, pros and cons Flashcards | Quizlet Start studying Statutory interpretation literal, golden and mischief rules and the purposive approach. After all, their function is to apply, not make. What amendment is the Emancipation Proclamation? The Rules of Statutory interpretation 1. It is known as Heydon's rule because it was given by Lord Poke in Heydon's case in 1584. The Mischief Rule gives the most discretion to judges and is suited to specific, often ambiguous cases. Do you have a 2:1 degree or higher? In view of the same, the grammatical meaning of such words is usually modified. The purposive approach or purposivism is a school of thought within legal theory, centered around the claim that statutes should be interpreted according to their "purpose," as opposed to the plain meaning of their text. The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". The purposive approach sometimes referred to as purposive construction, purposive interpretation, or the modern principle in construction is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (that is, a statute, a part of a statute, or a clause of a . The cookies is used to store the user consent for the cookies in the category "Necessary". Parliament can create legislation that is obscure or vague, has multiple meanings, or some events of the case may be unforeseen at the time so in this circumstance judges need to provide legislation with meaning. Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. It does not store any personal data. These cookies will be stored in your browser only with your consent. That approach fell out of favour during the 19th century (when it was displaced by textualist approaches) but is now again the dominant interpretive approach in our law . 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. In his speech at the appeal, Lord Keith proposed that: The word supply in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other., I do not feel able to say that either the delivery of goods by a depositor to a depositee, or the redelivery of goods by a depositee to a depositor, can sensibly be described as an act of supplying goods to another.. There are disadvantages to The Literal Rule. The Golden Rule was applied to extend the meaning of vicinity and avoid the possible absurd outcome. Required fields are marked *. Your email address will not be published. Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet. difference between mischief rule and purposive approach. The mischief rule however is different to the strict criteria set out in Heydon's case. 4.2 The rules of statutory interpretation In this part we will explore the number of rules developed by the courts to assist with the interpretation of a statute. If an attempt is made to add Mischief in any statute, then it must be prevented by the Mischief Rule. Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features. Under the offensive weapons act of 1959, it is an offence to offer certain offensive weapons for sale. Under section 3 of the official secrets act (1920) it was an offence to obstruct HM Forces in the vicinity of a prohibited area. To export a reference to this article please select a referencing stye below: UK law covers the laws and legislation of England, Wales, Northern Ireland and Scotland. 2 What is literal and purposive interpretation of law? Here the RCN challenged the involvement of nurses in abortions. The literal rule of statutory interpretation should be the first rule applied by judges. The most prominent external secondary aids include dictionaries and textbooks, reports, international treaties (ECHR), and Hansard. An advantage of the literal rule is that it forces judges to carry out Parliaments intention. What are the advantages of mischief rule? Is there any advantage to doing a degree in the UK? The House of Lords adopted a purposive approach to allow her claim about being payed less for equal work. "(1998), Parliamentary Debates In Statutory Interpretation: A Question of Admissibility or of Weight, A flood of light? A rule of statutory interpretation that attempts to determine the legislator's intention - to determine the mischief and defect - to give ruling to implement the effective remedy. In this the defendant was charged with bigamy (s.57 of offences against the person act 1861) which, under statutes states: whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence. No scope for the judges own opinions or prejudices to interfere. One Example of The Literal Rule was the Fisher v Bell case (1960). Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. The Court noted that the purposive approach to statutory interpretation involved the consideration of three factors: the language of the provision; the context in which the language is used; and. You can download the paper by clicking the button above. In the construction (interpretation) of statutes, the principle aim of the court must be to carry out the "Intention of Parliament", and the . Thus, it can be said that the mischief rule is backward-looking whereas the purposive rule is forward-looking. The mischief rule was established in Heydon's Case. Available from: [Accessed 01-03-23]. The purposive approach (sometimes referred to as purposivism, . interpretation e.g. Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features. How does the Golden Rule complement the literal rule? The case of Smith v. Huge revolved around the Street Offences Act, 1959. If you use part of this page in your own work, you need to provide a citation, as follows: Essay Sauce, Rules of interpretation: literal, golden, mischief & purposive. This case shows the main problem with The Literal Rule that there can be disagreement over the literal meaning of statutes. The dichotomy between the literal and the purposive approach on interpretation of written contracts has been a very hot topic during the last twenty years. This preview shows page 86 - 88 out of 98 pages. The Mischief Rule was used to interpret that the statute of 1861 was trying to combat backstreet abortions and therefore nurses fall within the 1967 abortion act. The 4 principles to follow were expressed in Heydons case (1584) which concerned a conflict over legal action against Heydon for trespassing on certain land: The rule is intended to rectify MISCHIEF in the statute and interpret the statute justly. 4 Can a judge make law with purposive interpretation? by | May 28, 2022 | brandon merrill husband | May 28, 2022 | brandon merrill husband This cookie is set by GDPR Cookie Consent plugin. UoL UG Laws Alumni & Current Independent Students SupportNetwork, Click to share on Twitter (Opens in new window), Click to share on Facebook (Opens in new window), Click to share on LinkedIn (Opens in new window), Click to share on WhatsApp (Opens in new window), Click to email a link to a friend (Opens in new window). What do you mean by mischief rule of interpretation? However, the increased role of the judge means that his views and prejudices can influence the final decision. When brought to trial it was concluded that Bell could not be convicted given the literal meaning of the statute. If an attempt is made to add Mischief in any statute, then it must be prevented by the Mischief Rule of interpretation. The Literal Rule Every day meanings of words 2. Lord Diplock in the Duport Steel v Sirs case (1980) defined the rule: Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral.. In conclusion, there will be comments on the extent to which Cap. This can undermine public confidence in the law. Looking for a flexible role? It does not store any personal data. Under the mischief rule the court's role is to suppress the mischief the Act is aimed at and . 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. Purposive Approach- Judges become Law makers, infringing Separation of Powers Act. . The mischief rule is the oldest of the rules of interpretation. The mischief rule was established in Heydons Case [1584] EWHC Exch J36 Case summary. The Golden Rule was applied in the Adler v George case (1964). The mischief rule gives a judge more discretion than the previous rules. If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! The purposive approach (sometimes referred to as purposivism, purposive construction, purposive interpretation, or the modern principle in construction) is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (a statute, part of a statute, or a clause of a constitution) within the context of the law's purpose. Many of the most, The First Amendments Establishment Clause prohibits the government from making any law respecting an establishment of religion. This clause not only forbids the government from establishing an official religion, but, What is an example of the proper clause? The main advantage of The Golden Rule is that drafting errors in statutes can be corrected immediately. What led to the Declaration of the Rights of Man? In Re Sussex Peerage, it was held that the mischief rule should only be applied where there is ambiguity in the statute. However, the abortion act (1967) claims an absolute defence for medically registered practitioners to carry out abortions. The Mischief Rule gives the most discretion to judges and is suited to specific, often ambiguous cases. The criticism behind this rule is that the separation of powers . Statutory interpretation - literal, golden and mischief rules and the purposive approach. Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". It is sometimes argued that the purposive approach is the same as the mischief rule because the courts are simply trying to find out the purpose of the act. However, its inflexibility can also create injustices. In other words, units are selected "on purpose" in purposive sampling. We also use third-party cookies that help us analyze and understand how you use this website. In Re Sussex Peerage, it was held that the mischief rule should only be applied where there is ambiguity in the statute. These cookies track visitors across websites and collect information to provide customized ads. It is a method of statutory interpretation which considers the purpose of the provision and interprets the provision in accordance with that purpose. The mischief rule however is different to the strict criteria set out in Heydon's case. What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth? By clicking Accept All, you consent to the use of ALL the cookies. What are the pros and cons of statutory interpretation? Resolved and appointed to cure the disease of the statute of the proper clause of! Sometimes referred to as purposivism, it must be prevented by the mischief rule purpose of the statute not... Claim about being payed less for equal work an offence to offer certain weapons... Has thousands of great essay examples for students to use as inspiration when writing own... Registered practitioners to carry out Parliaments intention can help you build consistency as a leader and as organization... 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