Transcript of "Assignment on Interpretation of Statutes in Common Law and Civil Law System 01924122222"
Department of Law& Justice
Course Title: Comparative Law
Course Code: LLMF3233
Assignment On“Interpretation of Statutes in Common Law and Civil Law
Mr. Md. Azharul Islam
Department of Law
University of Dhaka
Guest Faculty of Southeast University
Name of Student
Md. Sohel Mallik
Md. Fuhad Kabir
Md. Mahfuzur Rahman
Shahina Sultana Ananna
Date of Submission: 22/11/2013
Table of Content:
Definition of Common Law
The Literal Rule of Statutory Interpretation
Advantages of the literal rule
Some examples of the literal rule
No external aid Where words plain and
Mischief rule (Heydon's case)Words coupled together to take colour from
The golden rule
The Golden Rule of Statutory Interpretation
Problems with the golden rule
Advantages of the golden rule
Absurdity or hardship
Construction to avoid invalidity
Common Law Approach to Interpretation
What is Civil Law?
Civil Law Approach to Interpretation
Historical Analysis and Interpretation
Definition of Teleological Interpretation
Cases with the application of teleological
Comparative Interpretation used by the ECJ
The word Interpretation is the ascertainment of the words formally used in
statutes and other written documents where more than one meaning is
possible. According to Salmond, is the process by which the Courts seek to
ascertain the meaning of the legislature thought the medium of authoritative
forms in which it is expresseds.
Common law is generally uncodified. This means that there is no
comprehensive compilation of legal rules and statutes. While common law
does rely on some scattered statutes, which are legislative decisions, it is
largely based on precedent, meaning the judicial decisions that have already
been made in similar cases. These precedents are maintained over time
through the records of the courts as well as historically documented in
collections of case law known as year-books and reports. The precedents to
be applied in the decision of each new case are determined by the pre-siding
The purpose of the interpretation of the statute is to unlock the locks put by
the Legislature. For such unlocking, keys are to be found out. These keys
may be termed as aids for interpretation and principles of interpretation.
The aids for interpretation may be divided into two categories, namely,
Internal and External. The Internal Aids are those which are found within the
statute. They may be as follows:1.Long title of the statute.
2.Preamble of the statute.
3.Chapter Headings of the statute.
4.Marginal Notes to every section of statute.
6.Illustrations given below the sections.
10.Saving Clauses and non-obstante Clauses.
External Aid for interpretation is those which are not contained in the
statute but are found else-where. They may be as follows:1. Historical background.
2. Statement of objects and reasons.
3. The original Bill as drafted and introduced.
4. Debates in the Legislature.
5. State of things at the time a particular legislation was enacted.
6. Judicial construction.
7. Legal dictionaries.
As stated above, the Superior Courts have formulated certain principles of
interpretation to find out the real intent of.
Definition of Common Law:
One of the two major legal systems of the modern Western world (the other
is civil law), it originated in the UK and is now followed in most English
speaking countries. Initially, common law was founded on common sense as
reflected in the social customs. Over the centuries, it was supplanted by
statute law (rules enacted by a legislative body such as a Parliament) and
clarified by the judgments of the higher courts (that set a precedent for all
courts to follow in similar cases). These precedents are recognized, affirmed,
and enforced by subsequent court decisions, thus continually expanding the
common law. In contrast to civil law (which is based on a rigid code of
rules), common law is based on broad principles. And whereas every
defendant who enters a criminal trial under civil law is presumed guilty until
proven innocent, under common law he or she is presumed innocent until
1. Literal construction:
In construing a statutory provision the first and the foremost rule of
construction is that of literal construction. All that the Court has to see at the
very outset is, what does the provision say? The Courts are bound by the
mandate of the Legislature and once it has expressed its intention in words
which have a clear significance and meaning, the Court is precluded from
speculating. If the provision is unambiguous and if from that provision the
legislative intent is clear, the other rules of construction of statutes need not
be called into aid. They are called into aid only when the legislative
intention is not clear. But the courts would not be justified in so straining the
language of the statutory provision as to ascribe the meaning which cannot
be warranted by the words employed by the Legislature.
The Literal Rule of Statutory Interpretation:
The literal rule of statutory interpretation should be the first rule applied by
judges. Under the literal rule, the words of the statute are given their natural
or ordinary meaning and applied without the judge seeking to put a gloss on
the words or seek to make sense of the statute.
Advantages of the literal rule:
Restricts the role of the judge
Provides no scope for judges to use their own opinions or prejudices
Upholds the separation of powers
Recognises Parliament as the supreme law maker.
Some examples of the literal rule:
R v Harris (1836) 7 C & P 446;
The defendant bit off his victim's nose. The statute made it an offence 'to
stab cut or wound' the court held that under the literal 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. Therefore the defendant's conviction
2. No external aid Where words plain and unambiguous5
Where the words of a statute are plain, precise and unambiguous, the
intention of the Legislature is to be gathered from the language of the statute
itself and no external aid is admissible to construe those words. It is only
where a statute is not exhaustive or where its language is ambiguous,
uncertain, clouded or susceptible of more than one meaning or shades of
meaning that the external aid may be looked into for the purpose of
ascertaining the object which the Legislature had in view in using the words
3. Mischief rule (Heydon's case)When a question arises as to the interpretation to be put on an enactment,
what the Court is to do is to ascertain "the intent of them that make it," and
that must of course be gathered from the words actually used in the statute.
That, however, does not mean that the decision should rest on a literal
interpretation of the words used in disregard of all other materials. The
literal construction, then, has, in general, but prima facie preference. To
arrive at the real meaning, it is always necessary to get an exact conception
of the aim, scope and object of the whole Act; to consider:
1.What was law before the Act was passed?
2.What was the mischief and defect for which the law had not provided?
3.What remedy Parliament has resolved and appointed to cure the disease?
4.The true reason of the remedy and then the judges have 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.
4. Words coupled together to take colour from each otherThe rule is when two or more words which are susceptible of analogous
meaning are coupled together, they are understood to be used in their
cognate sense and they take their colour from each other, the meaning of the
more general being restricted to a sense analogous to that of the less general.
This rule, however, does not apply where the Legislature has deliberately
used wider words in order to widen the scope of the provision.
5. The golden rule: 6
Argument on hypothetical considerations should not have much weight in
interpreting a statute. However, if the language so permits, it is open to the
Court to give to the statute that meaning which promotes the benignant
intent of the legislation. A Court has the power to depart from the
grammatical construction, if it finds that strict adherence to the grammatical
construction will defeat the object the Legislature had In view. No doubt,
grammar is a good guide to meaning but a bad master to dictate.
The Golden Rule of Statutory Interpretation:
The golden rule of statutory interpretation may be applied where an
application of the literal rule would lead to an absurdity. The courts may
then apply a secondary meaning. (River Wear Commissioners v
Problems with the golden rule:
1. Judges are able to add or change the meaning of statutes and thereby
become law makers infringing the separation of powers.
2. Judges have no power to intervene for pure injustice where there is no
Advantages of the golden rule:
1. Errors in drafting can be corrected immediately eg:
2. Decisions are generally more in line with Parliament's intention
3. Closes loopholes
4. Often gives a more just result
5. Brings common sense to the law.
6. Absurdity or hardship:If a literal interpretation of a statute leads to absurdity, hardship or injustice,
presumably not Intended, then a construction may be put upon it which
modifies the meaning of the words and even the structure of the sentence.
Again, however, the Court has no power to give the language of the statute a
wider or narrower meaning than the literal one, unless there is compelling
reason to give such other meaning. If the language is plain the fact that the
consequence of giving effect to it may lead to some absurd result is not a
factor to be taken into account in interpreting a provision, as it is for the
Legislature to step in and remove the absurdity. If on either of two possible
views hardship must result to one or the other party, then the considerations
of hardship ought to be ignored.
7. Contextual interpretation:Although the meaning of the statutory provision has to be ascertained only
from the words employed by the Legislature, the set up' and context are also
relevant for ascertaining what exactly was meant to be conveyed by the
terminology employed. The same words may mean one thing in one context
and another in a different context. In ascertaining the true intention, of the
Legislature, the Court must not only look at the words used by the
Legislature but also have regard to the context and the setting in which they
occur, The exact colour and shape of the meaning of words in an enactment
is not to be ascertained by reading them in isolation, The provisions of the
statutes which bear upon the same subject-matter must be read as a whole
and in their entirety, each throwing light on and illumining the meaning of
the other. The Court must have regard to the aim, object and scope of the
statute to be read in its entirety. It must ascertain the intention of the
Legislature by directing its attention not merely to the clause to be construed
but to the entire statute; it must compare the clause with the other parts of
the law, and the setting in which the clause to be Interpreted occurs. If the
context clearly suggests that a particular rule of grammar is inapplicable then
the requirement of context must prevail over the rule of grammar.
8. Liberal construction:In construing a provision of a statute the Court should be slow to adopt
construction which tends to make any part of the statute meaningless or
ineffective. An attempt must always be made to reconcile the relevant
provision as to advance the remedy intended by the statute. Where the literal
meaning of the words used in a statutory provision would manifestly defeat
its object by making a part of it meaningless and ineffective, it is legitimate
and even necessary to adopt the rule of liberal construction so as to give
meaning to all parts of the statute and to make the whole of it effective and
Whether the narrower or the wider sense of a term should be adopted
depends not only on the provisions of the statute in which that term occurs
but also on facts and circumstances of each case. But again if the words used
in the statutory provision are reasonably capable of only one construction
the doctrine of liberal construction can be of no assistance. Procedural
enactments should be construed liberally in such a manner as to render the
enforcement of substantive rights effective. But the requirements as to the
time-Limit within which an administrative act is to be performed are to be
liberally construed. Provisions ensuring the security of fundamental human
rights must, unless the mandate be precise and unqualified, be construed
liberally so as to uphold the right. This rule applies to the interpretation of
constitutional and statutory provisions alike. Welfare, social and beneficial
statutes are not to be construed strictly. Doubts are resolved in favour of the
class of persons for whose benefit the statute is enacted. On the other hand
penal and taxing statutes and statutes excluding Court's jurisdiction should
be strictly construed
9. Harmonious construction:Every statute has to be construed as a whole and the construction given
should be a harmonious one. It is a cardinal rule of construction that when
there are in a statute two provisions which are in such conflict with each
other, that both of them cannot stand together, they should possibly be so
interpreted that effect can be given to both and that a construction which
renders either of them inoperative and useless should not be adopted except
in the last resort. It is the duty of the Courts to avoid conflict between two
provisions, and whenever it is possible to do so to construe provisions which
appear to conflict so that they harmonies. This rule of harmonious
construction applies not only to different provisions in one Act but also to
different cognate Acts such as the Court Fees Act and the Code of Civil
Procedure. Where, however, the words of the statute are not reasonably
capable of the construction canvassed, then It would be unreasonable and
illegitimate for the Court to limit the scope of those words -arbitrarily solely
for the purpose of establishing harmony between the assumed object and the
scheme of the Act.
10. Construction to avoid invalidity:-
It is the duty of the Court to endeavour as far as possible to construe a statute
in such a manner that the construction results in validity rather than its
invalidity and gives effect to the manifest Intention of the Legislature
enacting that statute. An interpretation leading to the failure of the plain
intention of the Legislature by reason of a slight in exactitude in the
language of the provision should be avoided. A statute is designed to be
workable, and the interpretation thereof by a Court should be to secure that
object, unless crucial omission or clear direction makes that end
unattainable. The reason behind the maxim is that it is to be presumed that
the Legislature or other legislative authority would not make an in fructuous
or unconstitutional provision. The words of a statute must be construed so as
to give sensible meaning to them. An interpretation which would defeat the
purpose of the statutory provision and, in effect obliterate it from the statute
book should be eschewed. If more than one construction is possible, the one
which preserves its workability and efficacy should be preferred to the other
which would render it otiose or sterile.
Thus, an Act of Legislature must be so interpreted, wherever possible, so as
to make it constitutional rather than unconstitutional. Likewise, a rule, i.e. a
piece of delegated legislation, should be so interpreted as to make it not only
constitutional but also within the authority conferred by the Legislature on
the Government while conferring on it the power to make rules.
11. Same words, same meaningWhere a Legislature uses same expression in the same statute at two places
or more, then the same interpretation should be given to that expression
unless the context otherwise requires. But the application of the rule of
"same word, same meaning" may be excluded by the context. If one
construction will lead to an ambiguity while another will give effect to what
common sense would show was obviously Intended, the construction which
would defeat the ends of the Act must be rejected even if same words used
in the same section and even in the same sentence have to be construed
12. Later law abrogates earlier laws not consistent with ItThis principle is expressed in the Latin maxim posteriores leges priores
contrary as abrogant. This principle has been applied by the Supreme Court
in several cases. After discussing the principles of interpretation it would
also be useful to discuss about mandatory and directory provisions
13. Common Law Approach to Interpretation:
In common law countries the three foundational principles of interpretation,
are literal interpretation, the golden and the mischief rule. The basic task of
the Judge is to ascertain the intention of the legislature. The literal rule of
interpretation is that that the intention of the legislature must be found in the
very words and sentences of the statute. The technique followed in the work
of interpretation in all the common law countries is almost the same. Similar
principle procedure and the method in the interpretation and construction of
In addition to the three major rules associated with statutes with
interpretation, there are also a number of other rules of interpretations to
help the Judges in their task of interpretation. One of the important rules of
interpretation is that the words of the statute must be taken in their context.
A word in itself has no absolute meaning; its meaning must be ascertained
by reading the statute as a whole. The meaning of the word is relative to the
context. Every section should be interpreted in the light of other sections
particularly of its interpretation clause, if so given in the Act.
Further there are certain presumptions to assist the Judges in their task of
interpretation. Such presumptions are as follow:
1. All the statutes enacted by legislature are presumed to be valid.
However in Bangladesh , India and U.S.A by virtue of their written
constitutions the court can declare a statute of its portion ultra virus or
2. The statutes are always territorial in operation, unless otherwise so
3. The statute are presumed to be in conformity with international law;
4. The legislature is an idea person and as such it is presumed that it does
not commit a mistake;
5. No change in the exiting law is presumed beyond that expressly stated
in the legislation;
6. Legislation is not intended to apply retrospectively unless this
expressly stated therein;
7. The crown is not bound unless the Act specifically makes it to do so;
8. There is a presumption against the imposition of liability without fault
in criminal cases. Thus any liability for a criminal offence must be on
the basis of fault, unless the words of a statute intend otherwise.
9. Unless otherwise so provided, there is a presumption that the statute
deprives a person of a right vested in him before the commencement
of the statute.
14.What is Civil Law?
The term Civil Law refers to a legal family that organically emerged from
the European Continent, starting during the Roman Empire. It was not until
the 19th Century, however, that this body of law was assembled, organized,
and distributed across the continent. France and Germany are considered to
be prime examples of this codification effort. In the 20 th century a number of
elaborations were made to these laws, producing the Civil Law most know
today. This term for a particular legal family is not to be confused with the
use of the term “civil law” to describe the laws and procedures governing a
case in controversy between private litigants.
15.Civil Law Approach to Interpretation:
The characteristic features of civil law system reflect a distinct technique
and method of interpretation as compared with common law system. In civil
law countries because of the supremacy of code and other statutory law, the
courts are more concerned with the analysis of textual formulation and
elaboration of the rules rather than to construe them in literal sense. The
method of interpretation has geographical variations too and differs from
one branch of law to another and from one country to another. The civil law
approach towards the interpretation is based on logical reasoning given in
various theories and schools recommended in their countries by various
writers and jurists.
(a) Free lays Theory:
The exponent of this theory was Ehrlich, who advocated the use of free hand
by the Judges in the interpretation of law. The Judge should be given power
even to change statute where the results of literal interpretation are absure
and unjust. According to this theory, “a judge is invested with the widest
powers in dealing with the language of the statute.
(b) Social Purpose Theory:
This theory is based on the proposition that the law written law must be
considered a sociological phenomenon rather than the will of a given
legislator. The judge must adopt that meaning which accords most closely
with the social and economic purposes of the statue.
This theory is defective, because it givens wide power to the judge. Under
the garb of social purpose, they would not given such interpretation as
required by them. This will have serious consequence in their work of
administration of justice.
(c) Grammatical and Legal Interpretation:
• It is also called “Literal Interpretation”.
• It depends upon the ‘letter’ of enacted law.
• It interprets only the ‘verbal expression of the law’. It does not go
beyond the ‘literal legist’.
• In grammatical interpretation, the words are construed according to
the popular or dictionary meaning of the term. It gives the plain sense.
• Grammatical interpretations are used frequently in courts.
• It is also called “Functional Interpretation”.
• It depends upon the ‘spirit’ of enacted law.
• It looks beyond upon the ‘literal legist’. It seeks elsewhere for some
other and more satisfactory evidence of the true intention of the
• Where grammatical interpretation fails, in such cases the ‘sentential
legist’ may be ascertained from other factors.
• Rarely, it is used.
16. Historical Analysis and Interpretation:
One of the most common problems in helping students to become thoughtful
readers of historical narrative is the compulsion students feel to find the one
right answer, the one essential fact, the one authoritative interpretation. "Am
I on the right track?" "Is this what you want?" they ask. Or, worse yet, they
rush to closure, reporting back as self-evident truths the facts or conclusions
presented in the document or text.
These problems are deeply rooted in the conventional ways in which
textbooks have presented history: a succession of facts marching straight to
a settled outcome. To overcome these problems requires the use of more
than a single source: of history books other than textbooks and of a rich
variety of historical documents and artifacts that present alternative voices,
accounts, and interpretations or perspectives on the past.
Students need to realize that historians may differ on the facts they
incorporate in the development of their narratives and disagree as well on
how those facts are to be interpreted. Thus, "history" is usually taken to
mean what happened in the past; but written history is a dialogue among
historians, not only about what happened but about why and how events
unfolded. The study of history is not only remembering answers. It requires
following and evaluating arguments and arriving at usable, even if tentative,
conclusions based on the available evidence.
To engage in historical analysis and interpretation students must draw upon
their skills of historical comprehension. In fact, there is no sharp line
separating the two categories. Certain of the skills involved in
comprehension overlap the skills involved in analysis and are essential to it.
For example, identifying the author or source of a historical document or
narrative and assessing its credibility (comprehension) is prerequisite to
comparing competing historical narratives (analysis). Analysis builds upon
the skills of comprehension; it obliges the student to assess the evidence on
which the historian has drawn and determine the soundness of
interpretations created from that evidence. It goes without saying that in
acquiring these analytical skills students must develop the ability to
differentiate between expressions of opinion, no matter how passionately
delivered, and informed hypotheses grounded in historical evidence.
Well-written historical narrative has the power to promote students' analysis
of historical causality--of how change occurs in society, of how human
intentions matter, and how ends are influenced by the means of carrying
them out, in what has been called the tangle of process and outcomes. Few
challenges can be more fascinating to students than unraveling the often
dramatic complications of cause. And nothing is more dangerous than a
simple, menopausal explanation of past experiences and present problems.
Finally, well-written historical narratives can also alert students to the traps
of linearity and inevitability. Students must understand the relevance of the
past to their own times, but they need also to avoid the trap of linearity, of
drawing straight lines between past and present, as though earlier
movements were being propelled teleological toward some rendezvous with
destiny in the late 20th century.
17. Definition of Teleological Interpretation:
The method of teleological interpretation may be defined as the method of
interpretation used by courts, when they interpret legislative provisions in
the light of the purpose, values, legal, social and economical goals these
provisions aim to achieve. European national constitutional courts as well as
the European Court of Human Rights apply this method. It is also
considered to be the method of interpretation utilized most by the European
Court of Justice (ECJ).
In the EU legal order teleological interpretation is of significant importance.
According to General Advocate Miguel Poiares Maduro “Teleological
interpretation in EU law does not refer exclusively to a purpose driven
interpretation of the relevant legal rules. It refers to a particular systemic
understanding of the EU legal order that permeates the interpretation of all
18.Teleological interpretation by the European Court of
The ECJ uses teleological interpretation seeking to achieve the objectives set
by the Treaties, specially the one of greater integration. The Court does so
by taking into account not only the teleological interpretation of a single
provision but its teleological interpretation in the whole context of EU legal
The ECJ also pointed out, that when beginning to interpret community law,
it must be borne in mind that Community legislation is drafted in several
languages and that the different language versions are all equally authentic.
So a further reason that the ECJ applies teleological interpretation is to
exclude any misconception in the texts of different but equivalent languages
within the EU.
19. Cases with the application of teleological interpretation:
In the “CILFIT case” the ECJ affirmed that “every provision of Community
law must be placed in its context and interpreted in the light of the
provisions of E.C. law as a whole, regard being had to the objectives thereof
and to its state of evolution at the date on which the provision in question is
to be applied.”
Another case that states the application of teleological interpretation by the
ECJ, is the van Gend en Loos case in this case the ECJ established the
principle of direct effect of Treaties in the legal order of the Member States.
The outcome of the case was that the national judge should take into
consideration that no statutory implementation act was needed by his State
to apply the Treaty of Rome. In this case the ECJ based its reasoning in the
teleological interpretation of the Treaty.
20. Comparative Interpretation used by the ECJ:
Comparative interpretation is not used by ECJ frequently but “looking at the
style of judicial pronouncements, it is also interesting that in recent years the
influence of British judges has surfaced in ECJ decisions”. Besides
enumerating in their decisions the legal basis for the cases, judges use to
take into account even preceding cases dealing with this or that question.
Although the clear preference for the teleological interpretation , on several
occasions the ECJ has used the comparative method openly by referring to
general principles underlying the national laws of all or most Member
States. A good example of this can be seen in the Case 29/76, when the
Court should define the interpretation of the concept 'civil and commercial
matters' within the meaning of the first paragraph of Article 1 of the
Convention of 27 September 1968, concerning the application of the
Convention. Ruling the case, the ECJ has decided that the reference must not
be made to the law of one of the States concerned in the conflict but, first,
"to the objectives and scheme of the Convention and, secondly, to the
general principles which stem from the corpus of the national legal systems."
In other important Judgment, the ECJ has used the comparative legal method
to examine the submissions of an applicant 'in the light of fundamental rights
that form an integral part of the general principles of law'. In Nold v.
Commission the ECJ has ruled that 'in safeguarding these rights, the Court is
bound to draw inspiration from constitutional traditions common to the
Member States, and it cannot therefore uphold measures which are
incompatible with fundamental rights recognized and protected by the
Constitutions of those States'
The common law and civil law approaches to advocacy and proof will ever
fuse into a single set of procedures for international arbitration. Nor is it
desirable that they should. One of the great strengths of arbitration is its
procedural flexibility, which permits the process to be tailored to the
particular needs of each case. What is emerging is rather a consensus as to a
range of procedural options available to the arbitrators and the advocates in
each proceeding. While not every procedure in that range will be accepted in
or is suitable for every arbitration, there is increasingly widespread
acceptance of this range as defining a set of procedures that are unlikely to
be challenged as unacceptable or unfair by parties from either side of the
increasingly less divisive common law civil law divide.