Interpretation Of Law ( Rules ) Law School Assignment

849 words - 4 pages

Question 1
The rules of interpretation
1.1
I. The literal rule
Actual words used by legislature
The court should interpret the words of the statute in their:
Ordinary
Grammatical or
Literal meaning
Devenish: the literal method is problematic and flawed as words can be interpreted in different ways

II. The Golden Rule
Applies:
Where the literal rule is inadequate and
Where applying the literal rule would lead to a result which is absurd, unjust or inconsistent with the provisions of the statute
Devenish: criticises this rule saying that “what seems an absurdity to one man might not necessarily seem absurd to another”
Venter v R: the golden rule provides that the ordinary meaning of the words must be followed, unless this would lead to obscurity

III. The Mischief Rule
Applied in instances of ambiguity
To discover the true meaning of the word the interpreter must consider the situation prior to and during the passing of the Act to interpret the obscure or ambiguous provision
To determine the reason behind the promulgation of the legislation (or the intention of the legislature) the court may consider the mischief that the statute was designed to remedy

Mischief rule formulated in Heydon’s case:
What was the common law before the passing of the Act
What was the common law lacking – or what was the mischief or defect for which the common law did not provide
What remedy parliament had resolved and appointed to cure the disease of the commonwealth
The true reason for the remedy

NB: The textual approach = literal rule and the golden rule
The contextual approach = mischief rule

1.2

i. Par 76$77 reflect a contextual Approach, which means that the meaning of a provision is determined either by reading its words, language or the provision itself in context
It is a theory of statutory interpretation which provides that the meaning of an enacted provision and its words and languages can only be determined considering its context or backgrounds conditions

ii. Judge Nicholson went beyond his Authority and commented on the cauldron of political issues that beset the case

1.3 First and foremost, a comparison between the Constitution and ordinary statutes, reveals a striking commonness or commonality. his does not, however, come as a surprise, since both ordinary statutes and the Constitution are enacted law texts, which means they belong to the same text genre(s). As a result, the logic that Differences and Similarities Between Constitutional Interpretation and Ordinary Statutory Interpretation, is that the strategies and justifications for their interpretation will also have much in common. Nevertheless, statutes and the Constitution are significantly and consequently different in certain...

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