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Approaches to Statutory Interpretation
Statutory interpretation is the process of determining the meaning and purpose of a law (statute) passed by a legislative body. There are several approaches to statutory interpretation, including:
Literal approach. This approach involves interpreting the words of a statute according to their ordinary and grammatical meaning, without considering the legislative intent or purpose behind the law. This approach is also known as the "plain meaning" or "textualist" approach.
Purposive approach. This approach considers the legislative intent and purpose behind the law, and seeks to interpret the statute in a manner that furthers its overall objective. This approach is also known as the "teleological" or "contextual" approach.
Golden rule approach. This approach is a modified form of the literal approach, and involves using the literal approach unless it leads to an absurd result. In such cases, the court may depart from the literal interpretation and adopt a purposive approach.
Mischief rule approach. This approach is based on the idea that the purpose of a statute is to remedy a particular mischief or defect in the law that existed prior to the passage of the statute. The court must interpret the statute in a manner that advances this remedial purpose.
Harmonious construction approach. This approach involves interpreting a statute in a manner that is consistent with other laws and the Constitution, and avoids interpreting it in a way that leads to an absurd or unjust result.
These are the main approaches to statutory interpretation used by courts which often adopt a combination of these approaches when interpreting a statute.
Check out our study notes for Legal System and Method to learn more about this topic.
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Impact of EU membership & the Human Rights Act 1998 on English statutory interpretation
A discussion on how membership of the European Union and S3 of the Human Rights Act 1998 have influenced the approach of the English judiciary to statutory interpretation.
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The interpretative obligation of the UK courts pursuant to s.3(1) of the HRA 1998 has greatly expanded the ambit of statutory interpretation as a method of protecting human rights in this jurisdiction. The framers of the Act, fully cognisant of the difficulty of reconciling the seemingly competing aims of domestic legal protection of human rights and continued parliamentary sovereignty, introduced a delicate mechanism in sections 3 and 4 to achieve both objectives. It will be argued that the House of Lords’ seminal decision in Ghaidan v Godin-Mendoza has served to rather clearly demarcate the outer boundary of what is ‘possible’ under s.3(1), after clear differences in judicial opinion had emerged. Bearing that in mind, notable human rights cases concerning sentencing and terrorism law will be used to demonstrate that there are situations in which a section 4 declaration of incompatibility is the only appropriate option. Overall, s.3(1) has significantly enhanced judicial protection of human rights without the courts having usurped the role of Parliament. Whether this balance can be maintained as the senior judiciary change depends on the extent to which the precedents that have been set will be followed, which is likely as the HRA jurisprudence matures further.
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This article discusses the current jurisprudence from UK Courts and Tribunals under section 2 of the Human Rights Act 1998, particularly the duty to take into account any relevant judgment, decision, declaration or advisory opinion of the European Court of Human Rights or its associated bodies when determining a question concerning a Convention Right. It argues that the current practice of domestic Judges of deferring to the views of the Strasbourg Court and following its approach even when considering it manifestly incorrect is unsatisfactory and ought to be replaced by a more flexible approach which recognises the original intent of Parliament to create a legislative instrument to be understood within the traditions of the British State.
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Human rights as a discipline has entered into a colossal era, where everyone seems to emphasize its importance; may it be global or domestic. In fact, it is largely attributable to the post-WWII reconciliation efforts of the world powers. A rather recent addition to this, is Regional organizations , such as the European Union, which engages itself in protecting the interests of the people within its ambit. The UK is also a member to this union since 1973. Herein ,they devise polices & articulate dialogue between member states, so that they can define standards & make way for those laws that are applicable within their region. One such common initiative was the Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights (ECHR) ] – 1950. Member states were to give supremacy to the EU laws over their local legislations, so as to ensure that member states do not put up any local enactments in contravention to the ECHR. This ideally should gives the judiciary its right to strike down inconsistent legislation`s , when there is a conflict between national laws & the ECHR. However, it remains a fact of argument is many EU states, especially in the UK where the Parliamentary supremacy remains an integral part of the democratic system of governance, Wide spread uncertainty remains on whether the EU laws should remain supreme within the UK. It should also be noted that the UK Parliament had passed the European Communities Act in 1972, which meant that , the country choose to bring EU laws into the English laws. As a result of which all existing human rights laws within the UK were to interpreted as per ECHR. But the problem becomes much more critical when considering the English laws that were enacted after passing the Act & still remained inconsistent with the EU laws. The English Courts have conflicting views on how the situation as, what was mentioned above should be handled. Different judges have taken different approaches. So the ultimate question of protecting human rights inculcated within the provisions of the ECHR, remains at the hands of the judges. Therefore it becomes so important for every law abiding citizen in UK to know the plight of its human rights laws & if at all there has been a compromise of its legislative supremacy.
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European human rights protection, ensured by the European Convention and Court of Human Rights, is declared to be universal and inclusive, protecting not only citizens of Europe but also anybody residing within the jurisdiction of the signatory countries. This article challenges this declaration and argues, with the help of some examples from the case law, that European human rights protection is based on the defined concepts of European-ness that exclude the perceived non-European within the Convention and the Court system.
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The European Convention Human Rights system, despite being the most effective system in providing individual protection of civil and political rights, is currently facing numerous problems. One of the biggest problems is the European Court of Human Rights overload. The expansion of the Court's caseload can be attributed to a combination of several factors one of which is the extensive judicial interpretation of Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. As a human rights treaty where numerous provisions have been drafted with a lack of precision the Convention is subject to interpretation that is done by the Court since the judges have to interpret and define law in concrete situations, and not just apply it. For that reason the Court has developed numerous principles of interpretation of the Convention and this paper looks at the most important ones. The interpretative principles of the Court can be divided in two groups, related to the direction in which the judicial creativity led. The first group represents judicial self-restraint principles of interpretation where the judges used one of the four following principles: intentionalism, textualism, margin of appreciation or the doctrine of fourth instance. On the other side, the judicial activist methods of interpretation, as used by the judges’ of the Court are the living instrument doctrine or evolutive interpretation, the doctrine of effectiveness or innovative interpretation, and the doctrine of an autonomous concept. This paper will look at all those principles as well as at the negative consequences of the inconsistency of their use.
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Statutory Interpretation as Argumentation
- First Online: 03 July 2018
Cite this chapter
- Douglas Walton 7 ,
- Giovanni Sartor 8 , 9 &
- Fabrizio Macagno 10
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This chapter proposes a dialectical approach to legal interpretation, consisting of three dimensions: (1) a formalization of the canons of interpretation in terms of argumentation schemes; (2) a dialectical classification of interpretive schemes; and (3) a logical and computational model for comparing the arguments pro and contra an interpretation. The traditional interpretive maxims or canons used in both common and civil law are translated into defeasible patterns of arguments, which can be evaluated through sets of corresponding critical questions. These interpretive argumentation schemes are classified in general categories and a distinction is drawn between schemes supporting and rebutting an interpretation. This framework allows conceiving statutory interpretation as a dialectical procedure consisting in weighing arguments pro and contra an interpretation. This procedure is formalized and represented computationally through tools from formal argumentation systems.
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Acknowledgement
Fabrizio Macagno would like to thank the Fundação para a Ciência e a Tecnologia for the research grants no. IF/00945/2013, PTDC/IVC-HFC/1817/2014, and PTDC/MHC-FIL/0521/2014. Douglas Walton would like to thank the Social Sciences and Humanities Research Council of Canada for Insight Grant 435-2012-0104.
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Walton, D., Sartor, G., Macagno, F. (2018). Statutory Interpretation as Argumentation. In: Bongiovanni, G., Postema, G., Rotolo, A., Sartor, G., Valentini, C., Walton, D. (eds) Handbook of Legal Reasoning and Argumentation. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9452-0_18
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IMAGES
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Legal Systems Essay Plan The rules of statutory interpretation are not really rules; but are rather approaches that result in considerable judicial discretion. Discuss critically. Statutory interpretation is a process of interpreting statutes by the judges.
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a purportedly textualist interpretation of a statute and a dissent has disparaged that interpretation for being overly literalistic. Last term, in Bostock v. Clayton County,1 the Court held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on an individual's sexual orientation or gender identity.
interpretation. In short, differences over statutory interpretation theory are one thing; the practice of statutory interpretation is another. This Essay proceeds in Part II by examining a recent example of Justice Scalia doing statutory interpretation without theorizing about it. Part III turns to purposive interpretation.
Lord Nicholls stated: "Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context."17. 25. The courts look at the words in question and use principles of interpretation, which are often simply common sense, as guides.
Statutory interpretation is process of interpreting statutes by the judges. The word of interpretation gives us thought that Act of Parliament is difficult to be understood but conversely, the definition of statutes have had very specific words but indeed ... Statutory Interpretation Essay. Info: 3000 words (12 pages) Essay Published: 23rd Nov ...
Statutory Interpretation Lecture Notes. 2547 words (10 pages) Law Lecture Notes. 2nd Sep 2021 Law Lecture Notes Reference this In-house law team. Notes from Smith & Bailey on the Modern English Legal System, Third edition 1996, p351-403; cases in Jacqueline Martin, The English Legal System, chapter 3.
This exam has five short answer questions, and two separate essay questions. Please w. rite your exam number in the blank on the top of this page. If you are handwriting your exam, write your exam number on the cover of each of your bluebooks. Also number the bluebooks to indicate how many in total you turn in and the correct order.
The Golden Rule of Statutory Interpretation. The rules of interpretation are a guide for judges as to how they should go about interpreting what Parliament meant in statute and there are a list and a set order that judges will always start when using the rules. Literal rule. Golden rule. Mischief rule.
February 10, 2023. Statutory interpretation is the process of determining the meaning and purpose of a law (statute) passed by a legislative body. There are several approaches to statutory interpretation, including: Literal approach. This approach involves interpreting the words of a statute according to their ordinary and grammatical meaning ...
How to answer a question on Impact of the Human Rights Act in context of statutory interpretation.There are three key elements to the question that should be...
PRESUMPTIONS OF STATUTORY INTERPRETATION 579 For De Ville the Constitution is an example of a remedial instrument designed to address the injustices of the past.253 In Gcaba v Minister for Safety and Security the Constitutional Court confirmed that "legislation must not be interpreted to exclude or unduly limit remedies for the enforcement of ...
However, the accession of the UK into the European Union in 1973 and the introduction of the HRA 1998 have changed the manner in which English judges approach statutory interpretation. This essay will assess if these changes have influenced the approach of statutory interpretation by the English judiciary and if so, the extent to which these ...
an interpretation is more acceptable than others (Macagno 2017). At this functional level, such interpretive reasons are regarded as arguments (Macagno and Capone 2016) aimed at showing why a particular rule, rather than another, is valid on the basis of the statutory text (Hage 1996, 215). In statutory interpretation, such argu-
83 Botha Statutory Interpretation: An Introduction f or Students (2005) 109. 84 Le Roux (n 36) 389. 85 Messenger of the Magistrate' s Court, Durban v Pillay 1952 3 SA 678 (A).
gest.4 The object of all interpretation lies in the true intention of the lawmakers, whether they be framers of a constitution or a treaty, legislators, or drafters of secondary legislation. Its pursuit at the Court demands of the common lawyer a readiness to set sail from the secure anchorage and protected haven of "plain words" and to explore ...
In this essay I argue that the statement made by the court in Daniels v Campbell 2003 (9) BLCR 969 (C) is true. The interpretative approach adopted by South African courts pre-1994 Statutory interpretation pre-1994 lacked a single theoretical starting point. There was no single methodology that was applied to interpret legislation.