Judges do not have it easy. While ruling on disputes between adversaries, they are expected to achieve a balanced, lawful, and (preferably) wise conclusion. At their disposal is a plethora of legal documents, all of which require both understanding and interpretation. Though a wealth of materials can advance the resolution of a dispute, it can also hinder it: parties present materials in partial—and persuasive—ways. Which presentation should the judge prefer? Which document should they treat as most influential? How should they interpret it? Add to these noodle twisters the social consequences of their rulings—think the UK Supreme Court’s article 50-case and the media backlash that ensued—and what may seem like a dream gig can quickly become a nightmare.
To balance the cornucopia of competing interests, judges have developed a series of methods (or rules) of statutory interpretation. Methods of interpretation are vital to the administration of justice for many reasons: they help judges standardise interpretations (rendering the law a tad more determinate); they help judges cohere their rulings with the intent of Parliament; and they help practitioners develop more persuasive arguments.
Perhaps most importantly of all, methods of interpretation attend to the complexity of language. Words have meanings, some of which are evident (e.g. death), others of which are subtle (e.g. viable), and yet others of which are contentious (e.g. reasonable). While judges are expected to interpret words in the manner intended by Parliament, it is fairly evident from most statutes that legislators often fail to problematise the language choices they make, hence the art behind legislative drafting, though that is a discussion for another day.
UK judges favour four and a half methods of statutory interpretation: the literal, golden, mischief / purposive, and teleological rule. Developing competency in spotting the use of these methods—judges rarely signpost them—will ensure that students develop a more nuanced understanding of the law and become more adept at making persuasive arguments about the law.
I- The Literal Rule
Many judges self-identify as literalists or strict constructionists. From a literal perspective, ‘words are given their ordinary, plain, and literal meaning’. Those who favour this method argue that it is most capable of preserving the intent of Parliament. There is some truth to this claim—we like to take people at their word—but only to the extent that the words used in the law are clear and if the provision accounts for all possibilities in its application.
Legislatures court controversy when they adopt slapdash language / provisions. Consider Whitely v Chappell: the defendant was charged with the offence of impersonating a ‘person entitled to vote’. Who did the defendant impersonate? Someone who had died. The defendant argued that a corpse is not ‘entitled’ to vote so no crime was committed. Applying the literal rule, the court agreed with the defendant.
To be clear, the interpretation was accurate: the dead are not entitled to vote! Nevertheless, the ruling undermined Parliament’s intent of outlawing fraudulent voting. The defendant seems to have gotten off on a technicality, prompted by legislative oversight or even legislative error.
Should the court have ruled differently? Perhaps and perhaps not. When are judges expected to correct legislative oversight / error and under what circumstances? More importantly, who decides that the phrasing of the legal provision is erroneous?
It is true that too literal or too liberal an interpretation can lead to a distortion of Parliamentary intent hence why judges have developed other methods of interpretation.
II- The Golden Rule
Within this method, we begin with the literal rule unless, the application of the literal rule produces an absurd outcome or transgresses public policy. Simple enough? Sort of. Re Sigsworth provides an example of the application of the Golden Rule.
Baby Sigsworth was a crummy son. So crummy, in fact, that he murdered his mother. As Mama Sigsworth died intestate, Baby Sigsworth was set to inherit a sizeable estate. The court ruled that a murderer profiting from their crime was an absurd, even repugnant outcome, and opted to disallow the inheritance. The decision seems sensible. Application of the literal rule would not only validate a criminal act but it might encourage other wayward children to murder their parents. And yet, is it truly the role of the judiciary to decide that the application of the law should be avoided lest an absurd outcome transpire?
Consider a variation on Re Sigsworth: a parent dies intestate leaving behind a son and a daughter. Both are meant to inherit an inherit share of the estate, an outcome that the daughter considers repugnant. She challenges the projected split in probate court, providing persuasive evidence that her brother had behaved terribly toward their mother: he forgot her birthday, never visited, and declared to anyone who would listen that he was looking forward to her death and the fat inheritance coming his way. He did not kill her but his sister argued that his behaviour broke their mother’s heart and accelerated her death.
Would it be repugnant for her son to benefit from his mother’s goodwill despite his wretched behaviour? Probably so. Should the judge disallow the inheritance? Or should they apply the law? We want judges to reach a fair outcome but do we also want judges ignoring the law to reach that outcome? Who defines fair: elected officials (legislators) or appointed officials (judges)? The Golden Rule raises a fair few questions itself.
III- The Mischief / Purposive Rule
Another method for dealing with vague language or an imprecise provision is the mischief rule. Judges will consider, in the first instance, the mischief the law is meant to prevent and, in the second instance, its wider purpose. Application of the method is contingent on positive answers to three questions:
- Can the court ascertain the mischief the law was intended to remedy?
- Is it apparent that the law failed to deal with the mischief?
- Is it possible to state which additional words read into the law would rectify the flaw?
As an exercise, run Whiteley v Chappell through these questions.
We find in Royal College of Nursing v DHSS an example of this method in action. The Abortion Act specifies that ‘only registered medical professionals’ can perform abortions. Nursing, however, is not regarded as a profession though nurses are required to be state registered. Does the phrasing include nurses or did the legislature mean doctors only?
To answer this question, the court sought went through the three questions:
Can the court ascertain the mischief the law was intended to remedy?
Is it apparent that the law failed to deal with the mischief?
Sort of: limited availability of doctors to perform abortions meant that some women could not access institution abortion services and opted for alleyway services.
Is it possible to state which additional words read into the law would rectify the flaw?
‘Only registered medical professionals including, inter alia, registered doctors and registered nurses’ can perform abortions.
Going through the steps led the court to conclude to that nurses fall within the meaning of ‘registered medical professionals’ for purposes of performing abortions.
IV- The Teleological Rule
Since joining the European Union, UK courts have developed a fourth method to help harmonise UK and European interpretive approaches. European Union law is built around broad principles. This makes sense. The European Parliament favours a minimalist approach toward legislation to allow both European judges (ECJ) and member-state judges to account for cultural variations in their interpretations.
While advantageous in preserving cultural idiosyncrasies, broad principles prove awkward when trying to identify either the ‘mischief to be prevented’ or the ‘ purpose to be achieved’. To account for the looser language of principles, courts will query with the law under dispute coheres with the spirit of EU law. Judges have leeway in making the determination and the teleological rule has proven useful in addressing racial and sex-based discrimination in workplace standards across member states.
V- Final remarks
Laws are made up of words and words have both evident and subtle meanings. Variation in meaning creates challenges for courts whose role is to interpret the law, especially when legislators are confused about their own intentions. Methods of interpretation helps courts carry out the task while creating standards in the process, standards that counter the indeterminacy—the arbitrariness—of the law.
There is no order of use and the decision as to the method deployed is a matter of judicial discretion. Accordingly, and possibly the most important point of this post, through the process of interpretation, judges are making law. We can argue until the cows come home about the court’s duty to interpret the law as intended by Parliament. Nevertheless, interpretation is a creative act and the outcome of a ruling is a direction that future courts will take.
With this in mind, it is best to regard the study of case law as the study of second order law-making.