The letter and spirit of law
The letter of the law versus the spirit of the law is an idiomatic antithesis. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not necessarily the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording. Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language.
Rules Lawyer: A rules lawyer is a participant in a rules-based environment who attempts to use the letter of the law without reference to the spirit, usually in order to gain an advantage within that environment. The term is commonly used in wargaming and role playing game communities, often pejoratively, as the “rules lawyer” is seen as an impediment to moving the game forward.
Loophole and Lacunae
A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system. Loopholes are searched for and used strategically in a variety of circumstances, including elections, politics, taxes, the criminal justice system, or in breaches of security.
Loopholes are distinct from lacunae, although the two terms are often used interchangeably. In a loophole, a law addressing a certain issue exists, but can be legally circumvented due to a technical defect in the law. A lacuna, on the other hand, is a situation whereby no law exists in the first place to address that particular issue.
Three rules of statutory interpretations
Thus the purposive approach to statutory interpretation seeks to look for the purpose of the legislation before interpreting the words. It has often been said that the purposive approach is a mixture of the domestic rules, however, whereas the domestic rules require the courts to apply the literal rule first to look at the wording of the Act, the purposive approach starts with the mischief rule in seeking the purpose or intention of Parliament.
Advantages of the purposive approach
- It is a flexible approach which allows judges to develop the law in line with Parliament’s intention
- It allows judges to cope with situations unforeseen by Parliament
- It allows the law to develop to cover advances in medical science
- It allows the courts to give effect to directives
- Makes it easier for the courts to discover Parliament’s intention
Disadvantages of the purposive approach
- Judges are given too much power to develop the law and usurping the power of Parliament
- Judges become law makers infringing the Separation of Powers
- There is scope for judicial bias in deciding what Parliament intended
- It assumes Parliament has one intention and ignores the fact that Parliament is divided on party lines
- May lead to prolonged examination of irrelevant material by lawyers which adds to the cost and length of litigation
Plain Meaning Rule
Under the plain meaning rule, the words of the statute are given their natural or ordinary meaning. The plain meaning rule of statutory interpretation should be the first rule applied by judges.
Strict application of the plain meaning rule can sometime result in “absurd” outcomes. Examples of the plain meaning rule producing absurd outcomes can be seen in the following cases:
- In Whitely v Chappel (1868) a statute made it an offence “to impersonate any person entitled to vote”. The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living in order to be entitled to vote. The plain meaning rule was applied and the defendant was thus acquitted.
- In R v Harris (1836) the defendant had bitten off his victim’s nose. But because the statute made it an offence “to stab cut or wound” the court held that under the plain meaning rule the act of biting did not come within the meaning of stab cut or wound as these words implied an instrument had to be used. The defendant’s conviction was overturned.
- In Fisher v Bell (1961) the Restriction of Offensive Weapons Act 1958 made it an offence to “offer for sale” an offensive weapon. The defendant had a flick knife displayed in his shop window with a price tag on it. Statute made it a criminal offence to “offer” such flick knives for sale. His conviction was overturned as goods on display in shops are not “offers” in the technical sense but an invitation to treat. The court applied the plain meaning rule of statutory interpretation.
The golden rule permits the courts to depart from the plain meaning rule if the meaning leads to consequences it considers to be absurd or ambiguous.
Some examples of application of Golden rules:
- In Re Sigsworth (1935), a son had murdered his mother. Under slayer or forfeiture rules of long standing in the United Kingdom, he would have been excluded as beneficiary under her will. She had, however, died intestate, and the Administration of Justice Act 1925 provided that her next of kin would inherit. Although the situation was unambiguous, the absurdity inherent in such a situation meant that forfeiture had to be treated as applicable to intestacy rules taking the place of a will as well as wills themselves.
- The court applies the golden rule in a wider sense in Adler v George (1964). Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces ‘in the vicinity’ of a prohibited place. The defendant was actually in the prohibited place, rather than “in the vicinity” of it, at the time of obstruction. The courts had to determine whether “in [the] vicinity of” included on/in the premises. The court applied the golden rule. The court said that in the vicinity did include on or in as well. It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. The defendant’s conviction was therefore upheld.
A statute is to be so construed as to suppress the mischief and advance the remedy, thus giving the courts considerable latitude in achieving the objective of the legislature despite any inadequacy in the language employed by it.
For the sure and true interpretation of all statutes four things are to be discerned and considered:-
- What was the common law before the making of the Act.
- What was the mischief and defect for which the common law did not provide.
- What remedy the Parliament hath resolved and appointed to cure the problem.
- The true reason of the remedy;
And then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act.
The mischief rule saw further development in Corkery v Carpenter (1951). In a decision of the Court of King’s Bench, the Court had to decide whether a bicycle could be classified as a carriage. According to S.12 of the Licensing Act 1872, a person found drunk in charge of a carriage on the highway can be arrested without a warrant. A man was arrested drunk in charge of a bicycle. According to the plain meaning rule a bike is not a carriage. Under the Mischief rule the bicycle could constitute a carriage. The mischief the act was attempting to remedy was that of people being on the road on transport while drunk. Therefore a bicycle could be classified as a carriage.
In Smith v Hughes (1960), the defendant was charged under the Street Offences Act 1959 which made it an offence to solicit prostitution in a public place. The defendant was soliciting from within private premises (windows or on balconies) so they could be seen by the public without entering into the streets. The court applied the mischief rule holding that the activities of the defendant was within the mischief of the Act, and soliciting from within a house, is soliciting and molesting of the public. Therefore it is the same as if the defendant was outside on the street.
Aids to interpretation
Internal aids to statute interpretation
Generally, prima facie must be given as a general rule of statutory interpretation. If the words are clear and free from ambiguity there is no need to refer to other means of interpretation. However, if the words in the statute are vague and ambiguous, then internal aid may be consulted for interpretation. This means the statute should be read in whole, what is not clear in one section may be explained in another section. Internal aids include the following: Context, Title, Long Title, Short Title, Preamble, Headings, Proviso, Definition/interpretation Clause, Conjunctive and Disjunctive Words, Punctuation,
External aids to statute interpretation
Aids that are external to a statute (i.e., not part of an act) can also be used as recourse. External aids include the following: Historical Settings, Objects and Reason, Text Books and Dictionaries, International Convention, Government Publications (Committee Reports, Other Documents), Bill, Select Committee Report, Debate and Proceedings of the Legislature, State of Things at the Time of the Passing of the Bill
History of Legislation, Extemporaneous Exposition, Judicial Interpretation of Words
Example to Purposive Interpretation
In case of Large Taxpayer’s Office v. Pashupati Cement Pvt. Ltd. it was held that although the definition of Automobile provided in VAT Act 2052 included Double Cab Pickup-Van, the limitation of 40% tax credit was not applied in the case of purchase of Double Cab Pickup-Van and entire tax amount was allowed for credit. It was decided that a minor absurd technical argument should not be allowed to misrepresent the intention of the law.