Statutory Interpretation: Seeking the Intention of the Law

INTENT 1
STATUTORY INTERPRETATION-LAWS INTENT
Student’s Name
Institution

INTENT 2
Introduction
Despite construing the meaning of the legislation from the text, the intention has to be sought
and, more often than not, through the judicial interpretation of the legislation1. It is well
within the constitutional mandate of the judges during judicial interpretation to clarify the
intendment of legislation2. Several factors influence the judicial interpretation of statutes,
with the main one being the ambiguity of the text. According to Scott Soames using
equivocal language in legal instruments results into vague legal standards3. Giving the
intention of the law does not overrule that the parliament had an intention of the law; it is
merely clarifying and demystifying facts4.This essay will argue that the intention of the law
cannot always be directly construed from the legislative text of the legislation giving some
recommendations of what can be done.
In the judicial interpretation of statutes, there are four main rules of language that aid in the
interpretation; the literal rule, the golden rule, mischief rule, and the purposive approach5.
The literal rule is always the first consideration for the interpretation of legislation, where the
words are given their natural and ordinary meaning without looking into the intention of the
legislators. The golden rule is applied where the application of the literal rule would lead to
an absurd decision. The mischief rule aims at identifying the intention of the statute or
legislation. It seeks to find the wrong for which the statute was created to legislate against, to
give the statute its intendment. The purposive approach of interpretation is derived from the
mischief rule, as is in the Heydon’s Case (1584)6, and it involves the use of legislative
documents like drafts, Hansards, white papers and committee reports, to identify the intention
of the statute.
1 Trevor R. S Allan, The Sovereignty Of Law: Freedom, Constitution And Common Law (Oxford University
Press 2013).
2 Professor D. Neil Maccormick and Robert S. Summers, Interpreting Statutes - A Comparative Study (Taylor &
Francis 2016).
3 Scott Soames, "The Value Of Vagueness" [2011] Philosophical Foundations of Language in the Law. P 3
4 M. Waibel, "Demystifying The Art Of Interpretation" (2011) 22(2) European Journal of International Law.
5 Chris Turner and Jo Boylan-Kemp, Unlocking Legal Learning (3rd edn, Routledge 2013).
6 Heydon (1584) 76 ER 637

INTENT 3
In the law making process the legislators come up with ideas in form of bills which are then
enacted to become laws 7 These ideas then get support in the parliament, followed by some
arguments and propositions before it becomes a law. The motive which the lawmaker had
when pushing the idea forward for legislation is the intention of the law8. The purpose
intended for the proposed law to achieve. In the process, some intentions suffice and become
enacted, and those do not. Those that suffice are regarded as "recognized by law". In the
drafting of the legislative text, the wording could be precise or ambiguous, and in the latter
case, judicial interpretation is required set to light the intendment of the legislation9.
Sometimes, however, the rules of construction may give nebulous effect to a clear-cut term in
a legal instrument10. Legislation is not just any other text; it is text with authority because it is
made by legislators who have bestowed upon them, the constitutional mandate to make
laws11. Therefore, in determining the application and effect of the legislation, judges have to
be guided by the assumption that the legislators had an intention when drafting the law. It is a
common law rule that judges should give effect to the intention of the provision in question
through their interpretation and more often than not, the achievement of the intention requires
more than just meaning of the statutory text12.
There have been numerous theories on statutory interpretation especially in common law
countries, with many scholars and judicial officers of the opinion that the end game of the
interpretation is to unravel the legislative intent13. Currently, the Australian court system
views statutory interpretation as an affirmation of the intendment of the legislation14This
affirmation, however, is more than just finding the meaning of the text of the statute as a
whole; it entails much more consideration in the actual practice.
7 "Infosheet 7 - Making Laws – Parliament Of Australia", Aph.Gov.Au (Webpage, 2019)
<https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-
_Infosheets/Infosheet_7_-_Making_laws>.
8 Neil Duxbury, "Judicial Disapproval As A Constitutional Technique" (2017) 15(3) International Journal of
Constitutional Law.
9 Shraddha Agrawal, "The Golden Rule of Interpretation - Academike", Academike (Webpage, 2014)
<https://www.lawctopus.com/academike/golden-rule-interpretation/> Accessed 17th May 2019.
10 Scott Soames, "The Value Of Vagueness" [2011] Philosophical Foundations of Language in the Law. P 3
11 "Infosheet 7 - Making Laws – Parliament Of Australia", Aph.Gov.Au (Webpage, 2019)
<https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-
_Infosheets/Infosheet_7_-_Making_laws>.
12 Stanely Fish, "There Is No Textualist Position 42 (2005): 629." (2005) 42(629) San Diego L.
Rev.<https://www.law.columbia.edu/sites/default/files/microsites/law-theory-workshop/files/Intention
%20Fish2.pdf>.P 6
13 Nye Perram, ‘ The perils of complexity: why more law is bad law’ (2010) 39 Australian Tax Review 179,
180-181
14 The Hon Justice John Middleton, "Statutory Interpretation - Mostly Common
Sense?", Fedcourt.Gov.Au (Webpage, 2016)
<https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-middleton/middleton-j-20160414>.