【正确答案】Statutory interpretation In order to apply any piece of legislation, judges have to determine its meaning. In other words, they are required to interpret the statute before them in order to give it meaning. The difficulty, however, is that the words in statutes do not speak for themselves and interpretation is an active process, and at least potentially a subjective one depending on the situation of the person who is doing the interpreting. Judges have considerable power in deciding the actual meaning of statutes, especially when they are able to deploy a number of competing, not to say contradictory, mechanisms for deciding the meaning of the statute before them. There are, essentially, two contrasting views as to how judges should go about determining the meaning of a statute – the restrictive, literal approach and the more permissive, purposive approach.

【正确答案】The literal approach The literal approach is dominant in the English legal system, although it is not without critics, and devices do exist for circumventing it when it is seen as too restrictive. This view of judicial interpretation holds that the judge should look primarily to the words of the legislation in order to construe its meaning and, except in the very limited circumstances considered below, should not look outside of, or behind, the legislation in an attempt to find its meaning. Within the context of the literal approach there are two distinct rules: (i) The literal rule Under this rule, the judge is required to consider what the legislation actually says rather than considering what it might mean. In order to achieve this end, the judge should give words in legislation their literal meaning, that is, their plain, ordinary, everyday meaning, even if the effect of this is to produce what might be considered an otherwise unjust or undesirable outcome. In Whitley v Chapell (1868), the legislation under consideration made it an offence to impersonate any person entitled to vote. The accused had actually impersonated a dead person and was found not guilty, as a dead person was not entitled to vote. (ii) The golden rule This rule is applied in circumstances where the application of the literal rule is likely to result in what appears to the court to be an obviously absurd result. It should be emphasised, however, that the court is not at liberty to ignore, or replace, legislative provisions simply on the basis that it considers them absurd; it must find genuine difficulties before it declines to use the literal rule in favour of the golden one. As examples, there may be two apparently contradictory meanings to a particular word used in the statute, or the provision may simply be ambiguous in its effect. In such situations, the golden rule operates to ensure that preference is given to the meaning that does not result in the provision being an absurdity. In Adler v George (1964), the defendant was found guilty, under the Official Secrets Act 1920, with obstruction ‘in the vicinity’ of a prohibited area, although she had actually carried out the obstruction ‘inside’ the area.

【正确答案】The purposive approach The purposive approach rejects the limitation of the judges’ search for meaning to a literal construction of the words of legislation itself. It suggests that the interpretative role of the judge should include, where necessary, the power to look beyond the words of statute in pursuit of the reason for its enactment, and that meaning should be construed in the light of that purpose so as to give it effect. This purposive approach is typical of civil law systems. In these jurisdictions, legislation tends to set out general principles and leaves the fine details to be filled in later by the judges who are expected to make decisions in the furtherance of those general principles. European Union (EU) legislation tends to be drafted in the civil law manner. The need to interpret such legislation has forced a change in that approach adopted by UK courts in relation to EU legislation and even with respect to domestic legislation designed to implement EU legislation. Thus, in Pickstone v Freemans plc (1988), the House of Lords held that it was permissible, and indeed necessary, for the court to read words into inadequate domestic legislation in order to give effect to EU law in relation to provisions relating to equal pay for work of equal value. However, it has to recognised that the purposive rule is not particularly modern and has its precursor in a long established rule of statutory interpretation, namely the mischief rule. The mischief rule This rule permits the court to go behind the actual wording of a statute in order to consider the problem that the statute is supposed to remedy. In its traditional expression, it is limited by being restricted to using previous common law rules in order to decide the operation of contemporary legislation. Thus in Heydon’s case (1584), it was stated that in making use of the mischief rule, the court should consider what the mischief in the law was which the common law did not adequately deal with and which statute law had intervened to remedy. Use of the mischief rule may be seen in Corkery v Carpenter (1950), in which a man was found guilty of being drunk in charge of a carriage although he was in fact only in charge of a bicycle.