The English legal System: The system of Precedent

Courts approach the task of interpretation  of statutes on the basis of two assumptions that are made in this regard: (a) the legislation has a certain meaning which may be gleaned from the words used in the statute and that if the words are not ambiguous, they must be applied as they are written, since their meaning is “plain” and leaves no room for doubt. This is known as the plain meaning or literal rule.5  In this instance, the Court will interpret the words in the statute literally and take only the literal meaning of the statute, even if the intent behind the legislation appears to be something else.

The second assumption that courts make when they approach the task of interpretation is to glean the intent that legislators had when they enacted the statute and in interpreting the statute, the Courts try as far as possible, to apply the known intent in administration of justice. When the intent of the legislature behind passing such a statute is clear and unambiguous from the words used in the text, it becomes the basis upon which the decisions of the Courts must be rendered. However when “the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters. . . . [T]he intention of the drafters, rather than the strict language, controls.”6.

(b)   The other rule of interpretation employed by Courts is the doctrine of fidelity, where the primary function of the Courts is to interpret the legislation in accordance with the intent of the legislators and this is done in accordance with the rule of law. When a statute is ambiguous, the rule of deference to administrative interpretations will apply.7 Applying the literal translation of the statute according to the literal rule may sometimes produce a result opposite to what was intended and therefore, in such instances the “Golden Rule” is applied to mitigate the results of literal application. This occurs in cases when a literal application of the meaning of the words of the statute are so absurd that they cannot possibly be what is intended, then the Courts use an alternate strategy of interpretation. They choose a secondary meaning that approximates the original as much as possible, yet has the least repugnant effect in terms of application of the statute as law.8

On the basis of the two assumptions above, the Courts also take into account the following factors while interpreting the law:

  • Where a criminal conviction is involved, the Courts are likely to give an individual the benefit of the doubt if the text of the legislation is ambiguous. This is true especially in the case of crimes where the “strict liability” provision applies. The words of the statute must very clearly and specifically state the liability, barring which the individuals get the benefit of the doubt.
  • Judicial interpretation also makes the assumption that the jurisdiction of the Courts is to be held supreme and the legislation must be certified by the Crown in order to be applicable. Moreover the legislation is not applicable in foreign countries and the principles of common law are given predominance in the process of interpretation. Also, Courts interpret the legislation on the premise that it is not backdated, if it is, necessary modifications are made to suit the present time when interpretation is made.

An additional rule that is used by Courts in interpretation of the law, based upon the second principle of interpreting the intent rather than the actual words in a statute, is the Mischief rule. In interpretation, the judges question whether the statute is in accordance with the common law, what mischief it sought to remedy, what was the measure that was deemed appropriate to remedy it and the true reason for the remedy. When two or more words are followed by a general term, then in a modification of the literal rule, the Courts are to interpret the meaning of the term in relation to the words occurring before it based upon whether or not it forms a class in itself and this forms the Eiusdem General rule of interpretation which means “of the same type as”.

Judicial interpretation of the statutes is not perfect and sometimes tend to produce an effect opposite to that which is intended. Courts may use any of the laws of interpretation cited above, although the literal rule is the most favored one. The problem with this kind of interpretation lies in the fact that it does not represent the true spirit of the law, although in most cases it is generally adequate. While applying the Eiusdem Rule, the words and phrase rule will apply only when together, they form a class and the Golden Rule, while applying the least absurd interpretation to the actual words of the statute, may still prove to be lacking in a legal sense, as far as clarity of interpretation is concerned. The degree of ambiguity is the most difficult to resolve, since it means that interpretation could be carried out in a variety of ways. The Mischief Rule is more favorable to interpretation since it impels Courts to take note of the requirements of the common law, the remedy that was intended and the reason why the legislation was invoked while interpreting the law. While the Courts generally deliver verdicts which are more or less true to the law, there are cases where there has been a miscarriage of justice. For example, in the case of Fisher v Bell (1961), what was intended by the statute was to prevent the sale of weapons, however in applying the literal interpretation of the words of the statute, the Court determined that no offense had been committed by the offering of weapons for sale. Therefore, it may be concluded that the Courts can interpret the law only up to a degree on the basis of literal translation of the language of the statute. It is necessary for the Courts to also take into account the spirit of the law and the intent behind legislation in order to deliver just verdicts. Interpretation of the true spirit of the law is the guiding principle of most Courts  in delivering their verdicts.

Membership in the EU has further restricted the ability of the Courts to correctly interpret the law. Since UK law has now become subservient to the law of the European Union, it is governed and determined by the limitations of EU law. Thus UK Courts may interpret the law only to a certain extent. However, when the statutes fall within the purview of EU law, then it is the EU law which will have precedence and the Courts will have to yield to the provisions for interpretation according to EU law. This is even more so in the case of British Community Law, which is totally governed by the European Courts.

The system of precedent:

The system of precedent is the term that may be used in reference to previous judgments that have been rendered by the Courts and which are used as a basis for the formulation of further judgments. Precedent therefore refers to case law and it operates upon the principle that it is not the duty of the Courts to make the law, rather it is their function to interpret the law. Previous decisions rendered by other Courts are therefore considered valuable in interpreting the law, taking into consideration the material facts and circumstances of the case. Precedents are considered an indispensable foundation providing certainty to the law. Prior Judgments present the facts of a past case and based upon the findings of fact, draw inferences which are relevant. The judgments then apply the provisions of the law to the circumstances of the case and interpret the law accordingly. Therefore, they provide a valuable basis for future judgments which is almost as fool proof as the application of the law itself.  Most judgments also comprise statements of opinion expressed by judges in higher courts, which may be subject to interpretation, and they are binding upon lower Courts. While Judges do not make law, nevertheless in their interpretation of the law, they may put firth new definitions or variations in the interpretation of the statues which will form  a valuable basis for future Courts to rely upon. This imparts the degree of certainty to the law, through the application of precedent. However, the additional comments of the Judges are not legally binding on the lower Courts, although they may be used as a guide point.

The system of precedents is rendered flexible through the distinguishing precedent. While it is true that prior judgments and case law will form a valuable basis to guide the Courts in the application of the law, they will become unnecessarily rigid if they are rendered fully binding on the Courts below. However, through the application of the distinguishing precedent, the lower Courts have the flexibility to apply precedents only to the extent that they are relevant to the particular case that is being tried. If the facts and circumstances of a particular case are very similar to one that has already been tried before by a higher Court, then the lower Courts are bound by that decision, however if the facts and circumstances are different, the precedent may be applied to the extent that it is relevant . Law is changed only slowly and forcing the lower Courts to abide fully by precedent may mean that a decision which was relevant and proper in a particular case of the past is forced upon another case of the present where it may not be as relevant. Therefore, the element of flexibility is essential in order to ensure that there is no injustice through a rigid application of precedent, but ensure rather, that the law is fairly applied with the necessary degree of flexibility that is required. The distinguishing precedent ensures that the relevant degree of flexibility will be maintained in the decisions that are rendered by the Courts

                                               References cited:

  1. “The Sources of the Legal Systems”. (No date). Retrieved August 7, 2005 from URL:
  2. “The English legal System: The Nature of Law”.

5  See Hiett v. MSGIA [12/19/01] 2001 MTWCC 66

4 Inland Revenue v Hinchy (1960), House of Lords

6  See United States v. Ron Pair Enter. (1989), 489 U.S. 235 at page 242. Also quoted in S.L.H v. State Compensation Mut. Ins. Fund, 2000 MT 362, 31

7 See S.L.H v. State Compensation Mut. Ins. Fund, 2000 MT 362

8  See R. v Allen (1872)

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