In my last blog post, we looked at some of the advantages of statutory interpretation and how this can aid the functioning of the legal system. We also looked at what the different types of statutory interpretation are in the first blog post in this series, considering the four rules and approaches and how they work in practice. We will now be considering the other side of this debate – the disadvantages of statutory interpretation.
We will start by quickly reviewing how statutory interpretation works and what the four types are so that this is fresh in your mind. We will then move on to consider what the disadvantages are of each of the four types, as all the different methods have their own pros and cons.
What is Statutory Interpretation?
Statutory interpretation is what is used by judges to apply the law in cases where it is unclear what should be done. There are a number of reasons that this might be the case. For example, the law may be ambiguous in a particular area or say things that seem to conflict at different points in the Act. Words can also change dramatically in meaning over time, so this can add to the confusion, as some Acts date back hundreds of years.
There is also the possibility the certain situations didn’t occur to the lawmakers when they were drafting it, so the scenario is simply not dealt with in the legislation. Finally, there is the problem of some situations not being possible when the legislation was drafted. This is a particular problem following the rise of the internet and social media – the law simply can’t be changed fast enough to allow for all the new possibilities. Judges have to do their best to apply existing law to the new scenarios.
Judges can use a number of things to aid them in interpreting the law, such as legal dictionaries, dictionaries from the time the law was created and any preamble to the Act, as well as its titles. These are called aids to interpretation and can be intrinsic (found within the Act, such as the titles) or extrinsic (from outside the Act, such as dictionaries).
The first type of statutory interpretation is the literal rule, which interprets the law according to the exact definition of each word. The golden rule is similar but allows words to be given different meanings where not doing so would result in an unfair result. The mischief rule looks at the mischief that Parliament intended to fix with the legislation and interprets the law with this in mind. Finally, the purposive approach is similar to the mischief role, looking at what the gap in the law was before the legislation was drafted.
What are the Disadvantages of Statutory Interpretation?
Literal Rule
We will consider the disadvantages of each of the four rules, starting with the literal rule. The primary disadvantage of the literal rule is that it can result in seemingly unfair outcomes, possibly against Parliament’s will. It seems unlikely that Parliament truly intended some of the outcomes that have resulted from the literal rule, such as in Fisher v Bell (1961), where a knife displayed in a shop window was determined to not be for sale as the price tag was technically only an invitation to treat, not an offer.
Another disadvantage of the literal rule is that it is very restrictive. If the literal meaning is followed, drafting has to be absolutely correct to actually be consistent with Parliament’s intentions. In addition, many laws were made a long time ago. Parliament’s intentions may well have changed over the years.
Golden Rule
The disadvantage of the golden rule is that it is undemocratic, as judges are making the law, especially if a broad approach is adopted. This may be giving too much power to the judges, an unelected body, when law-making power is supposed to reside with Parliament. In addition, the golden rule is somewhat limited in its application – in most cases, one of the other rules of statutory interpretation could be used.
Mischief Rule
The main disadvantage of the mischief rule is a similar problem – it is undemocratic. Giving judges the freedom to interpret the law as they think is appropriate takes power away from Parliament, the elected law-making body. Judges can’t know for sure what Parliament’s intention was in making a particular law, so it can be safer to follow the literal rule.
In addition, the mischief rule presents the problem of judicial bias. Different judges may have different opinions on what is a fair outcome and how to interpret Parliament’s intentions, resulting in different outcomes. Cases should be decided the same no matter which judge hears them.
Purposive Approach
Once again, the first disadvantage of the purposive approach is that it is undemocratic. Rather than enforcing the law, judges instead seem to be making the law, which doesn’t follow the doctrine of separation of powers.
As judges are making the law, this also introduces uncertainty into the law, as no-one can be sure what the judges will consider Parliament’s intention to be. Defendants can’t just look at the relevant legislation and know how judges will interpret it.
Wrapping Up
I hope that this helps you to understand some of the drawbacks of each of the different types of statutory interpretation. Come back in two weeks for another law blog post about judicial review!
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