Assignment on Interpretation of Statutes in Common Law and Civil Law System 01924122222
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Assignment on Interpretation of Statutes in Common Law and Civil Law System 01924122222



Assignment on Interpretation of Statutes in Common Law and Civil Law System

Assignment on Interpretation of Statutes in Common Law and Civil Law System



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Assignment on Interpretation of Statutes in Common Law and Civil Law System 01924122222 Assignment on Interpretation of Statutes in Common Law and Civil Law System 01924122222 Document Transcript

  • Department of Law& Justice LL.M(Final) Program. Course Title: Comparative Law Course Code: LLMF3233 Assignment On“Interpretation of Statutes in Common Law and Civil Law System” Submitted To: Mr. Md. Azharul Islam (Assistant Professor) Department of Law University of Dhaka & Guest Faculty of Southeast University Submitted By: SL. 01 02 03 04 05 06 Name of Student Jannatul Ferdous Md. Sohel Mallik Sayef Amin Md. Fuhad Kabir Md. Mahfuzur Rahman Chowdury Shahina Sultana Ananna ID 2013020301004 2013020301022 2013020301030 2013020301031 2013020301032 2013020301033 Date of Submission: 22/11/2013 Table of Content: 1
  • SL. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Subject Introduction Definition of Common Law Literal construction The Literal Rule of Statutory Interpretation Advantages of the literal rule Some examples of the literal rule No external aid Where words plain and unambiguous Mischief rule (Heydon's case)Words coupled together to take colour from each other The golden rule The Golden Rule of Statutory Interpretation Problems with the golden rule Advantages of the golden rule Absurdity or hardship Contextual interpretation Liberal construction Harmonious construction 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 interpretation Comparative Interpretation used by the ECJ Conclusion Page 2
  • Introduction: 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 judge. 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. 3
  • 2.Preamble of the statute. 3.Chapter Headings of the statute. 4.Marginal Notes to every section of statute. 5.Punctuations. 6.Illustrations given below the sections. 7.Definitions. 8.Provisos. 9.Explanation. 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. 8. Commonsense. 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 proven guilty. 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 4
  • 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 was quashed. 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 in question. 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? and 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 Adamson) (1876-77). 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 absurdity 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. 7
  • 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 operative. 8
  • 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:- 9
  • 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 differently. 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 10
  • 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 statute. 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 invalid; 2. The statutes are always territorial in operation, unless otherwise so expressed; 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; 11
  • 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 12
  • 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: Grammatical Interpretations: • 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. Logical Interpretations: • 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 legislature. • 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 13
  • 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. 14
  • 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 its rules”. 18.Teleological interpretation by the European Court of Justice: 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 order. 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.” 15
  • 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' 21.Conclusion: 16
  • 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. 17