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LAW / Statutory Interpretation by Csanad Kormos

Literal Rule

Statutory Interpretation In General | Literal Rule | Golden & Mischief Rule | The Purposive Approach/The Contextual Approach | Hansard
The Literal Rule

The literal rule means the interpretation of Acts purely according to their literal meaning; it has fallen out of favour since the 19th Century. It is, unsurprisingly, the first approach that will be taken. It means following the literal, ordinary or natural meaning of words.
Advantages, and disadvantages of, and justifications for the literal rule

It encourages precision of drafting - but does it - who would deliberately be careless?

It is said to give certainty - but is this really true? - there is no certainty as to literalism, so therefore there is no certainty.

Judicial interpretation grants law making powers to judges - a derogation from parliamentary supremacy.

It can create absurd results.

It is not useful when deliberately broad terms are used .

Perfect drafting is impossible.

It is used because judges are afraid of losing their perceived independence by making necessarily political purposive constructions on Acts.

In addition, the question of what is absurd or immoral and therefore allowing the plain words of a statute to be ignored is by necessity a subjective one, and so the interpretation will vary with the judge's background, upbringing, education, and beliefs; which will inevitably differ greatly from the mean at least some of the time. The result clearly is that use of any construction other than the literal binds the entire population by one man's moral judgement. Although this may not be controversial where there is no dispute as to the 'correct' result (although correctness is surely neither absolute nor objective) in some areas of law, non-literal constructions are one man statutes on matters that should properly be the subject of public debate. Thus although the results of judicial legislation may be 'right' (whatever rightness is), it is only by accident that this is so.

Because of the need for certainty in the criminal law there is a stronger presumption here that the literal meaning of words should be used.

It is used because many statutes are the result of a political decision that has not been thought through and to win political 'points' - it is often to anticipate whether, e.g., Parliament intended the criminal law to be unfair and unjust.

On the other hand, the court that tries to enforce Parliament's will is more likely to succeed than the court that does not; but it may severely compromise justice and certainty in doing so - the person following the statute should not have to speculate as to what the law is (this is only relevant in the criminal law).

It is used because if judges rewrote law according to moral judgements, people would sue to see if they could get a favourable judgment - there would hence be a vast increase in litigation.

It will always be used unless an absurdity would result (and sometimes even then)

The problem with the literal rule is that although it sounds simple, there is not always a prescribed meaning for words - the ordinary meaning may not be so ordinary at all - problems finding the natural meaning of words frequently occur, e.g., in R. v. Maginnis 1987, did temporarily holding drugs on someone else's behalf (i.e. taking the drugs from them to return them at a later date) amount to an "intent to supply"- Held, "Yes" (4-1, but both sides claimed that their meaning of supply was the ordinary one, even though the minority definition came from a dictionary).

In Whitley v. Chappell [1868] 4 LRQB 147, it was illegal to impersonate any person entitled to vote. A dead person who was not entitled to vote, so therefore was acquitted.

R. v. Harris 1836, Harris bit someone's nose off; it was unlawful to "stab, cut or wound" (this is also an example of expressio unius est exclusio alterius, and indeed the two approaches are complimentary). This implied that some instrument must be used - this may be criticised as symptomatic of the irrelevance and absurdity of the law, but it is not wholly indefensible, since for the law to develop as a science, it is essential for it to follow logical rules.

"We no longer construe Acts according to their literal meaning. We construe them according to their object and intent." - Lord Denning

The court's aim is to find the intention of Parliament as expressed in the words it used - Viscount Dilhorne in Stock v. Frank Jones (Tipton) Ltd. 1978.

Clear words must be applied - even if the result is absurd per Lord Edmund-Davies in Stock (above), i.e. the judges' only role is in determining what unclear words mean.

The literal rule is liable to lead to hardship - but in certain circumstances the courts have decided that it should always be followed: in Leadale v. Lewis 1982, the House of Lords said that tax statutes with clear meanings should have that meaning favoured; even if the result is 'wrong', causes hardship or leaves loopholes that might be exploited.

"If the precise words used are plain and unambiguous, in our judgment we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice"- Jervis CJ in Abley v. Dale 1851.

"We can only take the intention of Parliament from the words which they have used in the Act" - Lord Reid in I. R. C. v. Hinchy 1960 (note Pepper v. Hart 1992)

"When the language of a statute is plain it is not open to the court to remedy a defect of drafting" Viscount Dilhorne - Stock v. Frank Jones (Tipton) Ltd.

"If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity. [However] If the words of an Act admit two interpretations, and if one interpretation leads to an absurdity, and the other does not, the Court will conclude the legislature did not intend the absurdity and adopt the other interpretation" R. v. City of London Court Judge [1892] 1 QB 273 Lord Esher

"It is a cardinal principle in all statutes that you may not attach to a statutory provision a meaning that the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond that you must not go." Lord Reid, Jones v. DPP 1962

"Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider that the consequences of doing so would be inexpedient, or even unjust or immoral." per Lord Diplock in Dupont Steels Ltd. v. Sirs 1980. He also said that even if the omission from the plain and unambiguous statute was inadvertent - and that if Parliament had foreseen the casus omissus, it would have certainly adopted a course of action other than the literal interpretation of the statute - then the plain (and contrary to Parliament's intention) interpretation should be followed. "If this be the case it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Act." Hence the mischief rule can only be used when there is some ambiguity.

However, note the clear and unambiguous provisions of the Factories Act, which required the fencing of machines when "in motion". It was held that in Richard Thomas and Baldwins Co. Ltd v. Cummings 1955 that this meant "mechanical propulsion" and excluded being moved by hand. This is a clear breach of Lord Diplock's statement above.

Csanad Kormos, London Metropolitan University, United Kingdom, 2005