Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

Purposively and Literally Interpreting the Law

Written by johnleemk on 11:47:04 pm Apr 20, 2007.

Most people who read something about the law will quickly realise the quagmire of language that judges and lawyers find themselves in. At first glance, the law looks simple, black and white.

But disappointingly to a number of potential law students, things are far from so. The language of the law may say one thing, but mean something else entirely, all depending on how the language is interpreted by the courts — and this is especially true in countries operating under the common law system derived from Britain.

At first glance, it may seem ridiculous for interpretations of the law to hold such weight. Exasperated with the vagaries of the common law, Malaysian Prime Minister Mahathir Mohamad is known to have once remarked that if Parliament passes a law, the courts will read it one way, and if Parliament expresses its disagreement, the courts say "we will interpret that disagreement".

This simplistic understanding of course overlooks the simple fact that there are bounds as to how far a court can stretch the meaning of a word. If legislators truly mean something they can state it.

Nevertheless, what they leave to the courts' discretion will naturally have to be interpreted. And when it comes to interpretation there are two prevailing approaches. One is to take the words at their literal meaning, while another looks at the spirit behind the words.

The literalist approach is founded on the principle that it is impossible to accurately divine the intent of Parliament, and as a result, there is no point in trying to do so. Rather, the courts should simply give effect to the literal meaning of the words as laid down in the statute; if Parliament is dissatisfied, it is up to the legislature to amend the law.

It is difficult to run away from the injustice of the literal rule. The natural rigidities it creates mean that Parliament's intent can be frustrated. If Parliament bans the offering of a particular object for sale, surely their intent is to restrict its supply. But because of the particular literal meaning of the term "offer" in contract law, the British courts have in the past held that placing an illegal object in a shop window with a price tag (which is not technically an offer) does not run foul of the law.

The purposive approach is founded on a different sort of rule — namely, the mischief rule. The point of the mischief rule is to determine the "mischief" that Parliament sought to remedy by making the law in the first place, and then determine what judgement would best advance the purpose of Parliament in fighting this mischief.

The results of applying the purposive approach are often more satisfying in subjective terms of justice, but do tend to be jarring for how dissonant they can be when compared with the language of the law at hand.

In one famous British case, there was a law requiring all abortion procedures of a particular type to be supervised by a doctor. However, with the passage of time, the doctor's presence became unnecessary after the initial stages, and when medical practitioners began to ignore the antiquated aspects of the law, they were sued. The courts held in the doctors' favour, however, ruling that the mischief Parliament had set out to remedy was the lack of availability of abortions, and that unnecessarily upholding the literal language of the law would contravene this purpose.

Which approach to statutory interpretation is superior? It really is hard to say, considering that both approaches have their merits. Ironically, the best answer may be to permit both approaches to remain.

Why? Because it all comes down to flexibility in the law, and how the law deals with unclear grey areas. In some areas, it may be wiser to apply the literal rule to expand or limit the scope of a law; in other cases, the correct rule may be the mischief rule. Unnecessarily binding ourselves to one rule may create more certainty in the law, but at the risk of tying the courts' hands in important fringe cases.

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Infernal Ramblings is a Malaysian website focusing on current events and sociopolitical issues. Its articles run the gamut from economics to society to education.

Infernal Ramblings is run by John Lee. For more, see the About section. If you have any questions or comments, do drop him a line.

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