Is There Any Order in Applying the Literal, Golden and Mischief Rules? Essay Sample

Is There Any Order in Applying the Literal, Golden and Mischief Rules? Pages Download
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For Literal Rule, the judges will only look at the grammatical meaning of words to interpret. If the words are clear and unambiguous, even though the result makes nonsense of the law, they must be followed. In R v Judge of the City of London Court (1892), Lord Esher said “If the words of an Act are clear, then you must follow them, even though they lead to manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity”. Fisher v Bell(1960) gave us an good example. It is an offence to offer for sale flick knives to public. The defendant had flick knife on display in shop window with price label. But the defendant was not found guilty as displaying the knife was merely an “invitation to treat” but not an “offer”.

For Golden Rule, it is a modification of the Literal Rule. It is used when the literal interpretation fails to produce a workable result and produces an ambiguous meaning. The court will reject the absurd result and modify natural meaning of words. Professor Michael Zander (1993) has described this rule as “an unpredictable safety-valve to permit the courts to escape from some of the more unpalatable effects of the literal rule”. In Rex v Sigsworth (1935) Ch 89. The defendant murdered mother and the mother had no will. The defendant was only next of kin. However, the court decided that a son who had murdered his mother could not inherit her estate. Golden Rule is applied to modify words to avoid an absurdity or to avoid a repugnant situation. The intention was not to benefit the murderer.

For Mischief Rule, it attempts to determine the legislators’ intention. The courts look at the preamble of ordinance and find out the “mischief” that the Legislative Council was trying to control. However, it should only be used to determine the true intention of the legislature if the words of the legislation were ambiguous or equivocal. It was first used in Heydon’s case (1584). The courts are looking at what the common law was before the statute was passed, what problem or ‘mischief’ was that the common law did not cover, what remedy has the legislature decided and provided, and what the true reason was for the remedy. In Smith v Hughes (1960),. The mischief approach gave a more sensible outcome then that of the literal approach.

It seems to have a sequence like a hierarchical order in applying the rules, However, contradictory results will come out by applying different rules. Therefore, there is no such hierarchy order.

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