Sample Assignment on Law PDF
Added on 2021-06-17
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Law1Law
Law2Introduction:Common law is the important part of the English law which is mainly derived from the customand judicial precedent instead of the other statutes. It is the body of law which is establishedthough different judgments from the higher court instead of the statutes or written legislation.The principles which guide the system of the common law is that, the like cases must get the liketreatment under the law. These opinions are considered as the precedents and these precedentsare the legal rules which applied in future cases. The doctrine related to the judicial precedentensures that the lower court track the judgment and opinion of the higher court. Doctrine ofjudicial precedent actually means let the decision stand. It must be noted that common law hasvarious advantages and disadvantages, and this can be understood through example, perpetuationof bad ruling which means whenever any bad decision is made by the higher Court, then suchdecision becomes the law till the time such decision is modified by the Court. The main objective of this report is to discuss the statement made by Lord Scarman, in caseMcLoughlin Appellant v O’Brain (1983) 1 A.C. 4101. This paper discuss the issues related tothe common law in different areas such as approach related to the statutory interpretation,judicial precedent, and intervention of judges in the law making role of the Parliament’s. Lastly,brief conclusion is described which contain key elements of this report. Discussion:Statutory interpretation:Statutory interpretation is considered as the approach under which court interpret the law beforeapplying the law to the facts. In other words, Court decides the meaning of the statute. It isnecessary for the Court to ensure that intention of the parliament while framing the law must bereflected in the meaning stated by the Court, and for this purpose Court adopt number ofconventional practices to resolve the ambiguities. It can be said that parliament makes the lawand these laws are interpreted by the judges of the Court. Therefore, it can be said that roleplayed by Court ensures great significance in the manner in which act operates. 1 McLoughlin Appellant v O’Brain (1983) 1 A.C. 410.
Law3Some other factors which are known as extrinsic factors are also used by the Court forinterpreting the statutes such as dictionaries, reports of committees of the Law Commission, andjudicial precedent. In case law Pepper v Hart [1991] ALL ER 422, Court refers the reports ofdebates or proceedings in Parliament. Statutory interpretation had various rules such as simple literalism which stated that words willalways have a plain meaning, but this rue is considered as the fundamentally defective rulebecause this rule proceeds on the false assumption. In case Lord Reid in DPP v Ottewell [1970]AC 642 at 6493, court stated that impact of the English was such that, it becomes issue to frameany endowment which was not vague in that context. Even though words which maybe have general meaning can reflect number of differentmeanings as language is inherently equivocal. It must be noted that, any word or phrase is fairlyopen for accepting the diverse meaning. This supposed rule would require the application of theliteral meaning and does not consider about the consequences and however, and unlikely theymust match the intentions of the parliament. In case words stated in the Act reflect clearmeaning, then it is necessary to follow the meaning, even though such meaning result in themanifest absurdity. 4For the purpose of applying the literal meaning even though it had contrary consequences to theoath taken by the judge to do right. This is more the case in context of the criminal statutes. Ifthey were capable to provide two meanings, however meaning which is unreasonable in naturefrom those two meanings may be applied in case it was favorable to the accused. Therefore, itcan be said that concept of the literal rule is false in nature as it impose false burden on thejudiciary. Golden rule related to the statutory interpretation was stated under Mattison v Hart5 where Courtprefer to give the words their plain meaning unless such meaning manifest from the generalscope off the statute and result in the injustice and absurdity. However, this rule is considered as2 Pepper v Hart [1991] ALL ER 423 DPP v Ottewell [1970] AC 642 at 649. 4 LawTeacher, Advantages And Disadvantages Of The Literal Rule. [online]. (2013). <https://www.lawteacher.net/free-law-essays/constitutional-law/advantages-and-disadvantages-of-the-literal-rule-constitutional-law-essay.php?vref=1>. Accessed on 23rd May 2018.5 Mattison v Hart 1854.
Law4problematic in nature because what is considered as absurd by one man might be not consideredas absurd by another man (Hill v East & the West India Dock Co6). There are number of judgeswho deny the existence of any such rule. Another issue deals with the mischief rule that is, mischief is the only factor which is consideredby the Court and because of this it is not always considered as the influential of the issue.Identification of the mischief in the case does not provide much help for the simple reason thatgenerally done by the parliament to cure the mischief (Letang v Cooper7). Inadequacies highlighted in above stated rules compel the modern judges to look something elsefor guiding the principle and also adopted a purposive approach. Legislation in this context arestill deals with the remedying specific ‘mischief’, but maximum they are concerned about thesocial, political, and economic objectives.8This approach of the legislature required at the time when interpreting the English legislation incompliance with the law. In case Litster v Forth Dry Dock Co Ltd9, Lord Oliver stated that if thestatute constructed reasonably in the confirmation of the obligation of the Country towards thelegislation, then it is possible to applied purposive construction, and this involves the departurefrom the strict and literal application of the words which is used by the legislature in the statute. Above stated issues directly affects the effectiveness of the statutory interpretation approach andreduce believe of the modern society and modern judges in the common law. On the basis ofabove facts, it can be said that technique related to the simple literalism is defective in nature andfails to characterize the judicial approach in context of the statutory interpretation. Whileadopting the purposive approach to the statutes, courts have shown an increased willingness tocooperate for giving effect to the legislative policies in contrast to the early nature to restrict theconstitutional values stated under the statute.106 Hill v. East and West India Dock Co, (1884) 9 App. Cas. 448.7 Letang v Cooper [1964] EWCA Civ 5.8 Corbin, L. The role of statutory interpretation in law-making through the courts. <https://www.researchgate.net/publication/29466605_The_role_of_statutory_interpretation_in_law-making_through_the_courts>, accessed on 23rd May 2018.9 Litster v Forth Dry Dock and Engineering Co Ltd [1988] UKHL 10.10 Johnstone, Q. An Evaluation of the Rules of Statutory Interpretation. (1954). <https://pdfs.semanticscholar.org/7dc6/2a5f71186c727a31284cb3e56c11b9e018a6.pdf> Accessed on 23rd May 2018.
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