Week 9: Common Law Approaches
I’m posting this entry a bit out of order as I didn’t complete all of the reading or write my notes for this weeks material until yesterday. After the first skim read of this topic, my first reaction was it was good to finally read specifically about the three major common law approaches (literal rule, golden rule and mischief rule) rather than the brief mention from Week 1 or 2 to them. And then ‘urgh’ after seeing the section on latin maxims.
Having said that, on the second reading, it was very interesting to see that origins of these rules, and finally (although briefly) read the cases that resulted in the establishment of these common law approaches. It is also good to see that if you deconstruct the modern statutory approach to the interpretation of legislation, you can see elements of these approaches in action. This again reinforces the strong relationship between legislation and the common law.
Unsurprisingly, decisions made regarding statutory interpretation are binding if they are made by a higher court. However, since this is dependent on consideration of the exact same factual scenario, and the same Act, for the most part they are only persuasive, as it is highly unlikely that the same factual scenario and exact same Act will be considered at another occasion. And just like almost any other judicial decision, they can be appealed. However, if the line of reasoning document by a judge is defensible, then it is unlikely to be overturned.
The final section of this weeks material on Latin maxims are actually more interesting than I thought it would be. I now understand why they are used (other than to make the user seem more eloquent or sophisticated!). They are a concise way of getting certain ideas across, such as ‘of the same kind’ or ‘express mention of one thing is the exclusion of another’. These ideas are historical in nature, but are still very relevant today in the interpretation of legislation.
Finally, there was the discussion on when and why courts will determine meaning – due to omissions, statues left intentionally vague and due to legal disputes that Parliament never envisaged. This just reinforces the role of the Judiciary as the interpreter of legislation that Parliament has created.