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Article in Justice of the Peace
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JPN (6 Dec 2008) 822-825
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Doc. No. 2008.032 JPN075A |
Page 822
Statutory Interpretation: Teaching and
Practice – Part 2
FRANCIS BENNION
The Practitioner’s Bible
The Hon. J. J. Spigelman, Chief Justice of
New South Wales, said in 2007 that the law of statutory interpretation
has become the most important single aspect of legal practice. My
large book on it was generously described by a former Chief Justice of
Australia
as “the standard English text on statutory interpretation”. A
number of commentators have been so kind as to call it the practitioner’s
bible. One of these was Murray Hunt in a 1999 article. This shows the
difficulty of writing a book intended both for students and practitioners.
The introduction to my book explains the problem:
“This book has been called the practitioner’s bible. However
it is also a treatise for academics, as it propounds a theory.”
The theory it propounds is of course a theory of statutory interpretation
considered as an area of legal practice, not a theory of how to teach
it.
Murray Hunt treats the book as if it were solely a practitioner’s
guide, which I suppose is what it looks like at first glance. There is
also the difficulty that it is far too long to be conveniently absorbed
by students, though I certainly hope they find it useful all the same.
To help students further I have reduced the theoretical aspect to a more
manageable compass in a much smaller book.
What does this theoretical treatment of statutory interpretation considered
as an area of legal practice amount to? I will attempt a summary of my
theoretical scheme, otherwise known as the common law or Global system, which I have thought out with much effort over a period of some thirty
years.
The larger book consists of a Code with extensive critical comments. The
theoretical scheme, is composed of a central structure with accompanying
individual features. The central structure is headed by section 193 of
the Code, which lays down the basic rule:
“The basic rule of statutory interpretation is that the legislator’s
intention is taken to be that in any case of doubtful meaning the enactment
shall be construed in accordance with the general guides to legislative
intention laid down by law; and that where these conflict the problem
shall be resolved by weighing and balancing the interpretative factors
concerned.”
The central structure then gives meaning to the term “the general
guides to legislative intention laid down by law”, otherwise referred
to as the interpretative criteria. They fall into four different groups,
which may be respectively identified as rules, principles, presumptions
and canons. Expanding this slightly, we may say these are:
1. Common law and statutory rules.
2. Rebuttable principles derived from legal policy.
3. Rebuttable presumptions based on the nature of legislation.
4. Rebuttable linguistic canons applicable to any piece of prose.
Expanding further, we can broadly distinguish the above interpretative
criteria from one another as follows. A rule of construction (item 1)
is of binding force, but in cases of real doubt rarely yields a conclusive
answer. A principle of construction (item 2) reflects legal policy, and
is mainly persuasive. A presumption of construction (item 3) arises from
the essential nature of legislation, affording a prima facie indication
of the legislator’s inferred or imputed intention as to the working
of the Act. A linguistic canon of construction (item 4) arises from the
nature and use of language and reasoning, and is not especially referable
to legislation. I will now give the main constituents of this central
structure.
Common law rules of construction (item 1)
Plain meaning rule
Rule where meaning not “plain”
Commonsense construction rule
The rule ut res magis valeat
quam pereat (it is better that a thing succeed
rather than fail)
Informed interpretation rule
Functional construction rule
Statutory rules of construction (item 1)
Rules laid down by Interpretation Act
Definitions etc in individual Acts
Principles of construction reflecting legal policy (item 2)
Principle against doubtful penalisation
Law should serve the public interest
Law should be just and fair
Law should be certain and predictable
Law should not operate retrospectively
Law should be coherent and self-consistent
Law should not be subject to casual change Municipal law should conform to international law
Interpretative presumptions based on the nature of legislation (item
3)
Presumption that enactment to be given a purposive construction Presumption
that court to apply remedy provided for the “mischief”
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Presumption that text is primary indication of legal meaning Presumption that literal meaning to be followed
Presumption that consequential construction to be given
Presumption that rectifying construction to be given
Presumption that updating construction to be given
Presumption that “absurd” result
not intended
Presumption that evasion of Act not to be allowed
Presumption that ancillary rules of law apply
Presumption that ancillary legal maxims apply
Linguistic canons of construction (item 4)
Construction as a whole
Use of deductive reasoning
Treatment of different types of term
Rank principle Latin maxims such as noscitur
a sociis, ejusdem generis, expressio unius etc.
The theoretical scheme goes on the explain how these interpretative criteria
are deployed in a particular case. Where there is an applicable enactment
about which there is real doubt as to its legal meaning it is necessary
to determine, having in mind the relevant facts of the case, which of
the criteria are relevant. Where, as is usual, each side in the dispute
wishes to put forward a different legal meaning of the enactment, the
relevant criteria are applied to the opposing constructions. This yields
what the theoretical scheme calls factors favouring one side or the other.
As section 186 of the Code says, it is then necessary for the interpreter
to assess the respective weights of the relevant interpretative factors
and determine which of the opposing constructions they favour on balance.
That is the gist of the theoretical scheme. The accompanying individual
features of the scheme which are referred to above include the concepts
of legal meaning, real doubt and its causes, factual outline and legal
thrust, and grammatical and strained meanings.
For the purpose of referring to the theoretical scheme outlined above
I have coined the acronym NESSSI. This stands for “New Scientific
System of Statutory Interpretation”, which echoes Blackstone’s
term “a liberal science” referred to earlier.
Back To Wilberforce And Reid
I now need to return to Lords Wilberforce and Reid. I cited above some
comments they made in the 1966 Lords debate on the Law Commission’s
first report. Now I must give fuller extracts from that.
The essence of Wilberforce’s contribution falls into three parts.
The first was:
“I have always doubted whether statutory interpretation is a genuine
subject for the Law Commission at all. I suspect it is what is nowadays
popularly
called a non-subject. I do not think that law reform can really grapple
with it. It is a matter for educating the Judges and practitioners and
hoping that the work is better done.”
The reference to the Law Commission suggests that Wilberforce was referring
to statutory interpretation considered as an area of legal practice when
he spoke of it as being a non-subject, yet he goes on to refer to education.
He offers no opinion on how judges and practitioners should be educated
in this “non-subject”.
Next Lord Wilberforce turns his fire on the legislative drafters:
“I think that the problem really is one of legislative drafting rather
than one of interpretation. [These are] the very men whose technique causes
all the trouble we experience in the courts. [We might say:] ‘Let
us get some men less ingenious, some men of less intricate minds, some
more plainspoken men, to show us how to do this legislative work in a
different way.’ I feel that that would be a superficial approach
to the problem, which in truth is rather more difficult, because the real
trouble, as with the fiscal Statutes, is not in the drafting so much as
in the nature of the legislation itself, having regard to the nature of
the legislative programme of to-day. It is not only much too large in
quantity, but much too detailed in substance—the preoccupation with
every minute case which has to be regulated and dealt with.”
This is poor argument. The initial suggestion is that the courts’ difficulties
with statutory interpretation are caused by faulty drafting technique,
but no attempt is made to substantiate this. Instead there is a shift
towards blaming governments for the large quantity of the legislation
they think necessary. It is surely the duty of the Judges to cope with
the legislation that comes their way; failing to do this is not what they
are paid for. At the same time they should, in my submission, strive to
reach an adequate theory of how that task is to be performed.
Finally Lord Wilberforce says this:
“But as legislators, we have a responsibility in this matter, which one
can perhaps define by saying that we should endeavour, so far as we
can, to resist this process of detailed and excessive regimentation and try
to press for a wider mesh in our legislation than we are getting.”
What this means in other words is that the Judges (or some of them at
least) would like more legislative power. The wider the mesh, the more
scope there is for what I have called interstitial articulation by the
Judges. But pressing for this is again not what they are paid for.
Turning to Lord Reid’s remarks in the same debate, I will mention
only the following:
“We are always told that construing Acts of Parliament is a mystery,
and books have been written about the subject. I always advise young men ‘Don’t
read them’, because the rules are extremely simple. One looks at
the words of the Act and asks, ‘What is their natural meaning?’.
That requires a knowledge of the English language. Then, having found
out if they have one—and sometimes they have not; but assuming the
words to have a natural meaning—one sees whether the natural meaning
is going to produce reasonable consequences. If it is, one adopts it.
If it is not, one looks for another meaning. It is extremely difficult,
in fact almost impossible, to draft
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any Act of Parliament or any other document which is not ambiguous. One
can almost always find a secondary meaning if one wants to. Then you ask, ‘Is
this going to produce a reasonable result?’. If you think it will,
well and good. If it does not produce a reasonable result, then what I
do is to say, “Parliament got us into this mess; let us leave Parliament
to get us out of it.”
As I have mentioned, Sir Rupert Cross regarded Reid as one of the great
Judges of the twentieth century, and said that his own book on statutory
interpretation owed much to Reid’s views. This is borne out by the
fact that my large book cites no fewer than forty-five of Reid’s
dicta. So we have to accept that he was a great Judge and had a low opinion
of the books then available on statutory interpretation.
More remarkable is Reid’s remark that “the rules are extremely
simple”. In fact they are not simple, and have not been simple for
centuries – if indeed they ever were simple. And Reid’s prescription
if the consequences of the natural meaning are “unreasonable” has
not been law since Coke’s day in the seventeenth century.
The conclusion I draw is that the attitudes
displayed by Lords Reid and Wilberforce in that House of Lords debate
of 1966 displayed the ancient
view of the profession that you learn on the job by watching closely what
your seniors do. In other words it is a matter of practice not theory. Hoping that the work is better done is but a vague aspiration unless
practical steps are taken to further it. But the great drawback to this
timeworn empirical method is that it leaves little room for improvement in
the vital techniques of statutory interpretation.
Current Legal Education
In many common law jurisdictions statutory interpretation is still badly
taught. Part of the problem is that because most law teachers were themselves
taught it badly, they still see it as being a non-subject. The same of
course applies to practitioners, including some Judges. One consequence
of this, I am told by those who know, is that teaching statutory interpretation,
along with the rest of legal method, tends to be given either to the most
junior members of staff or to those who are simply putting in time until
retirement.
In England in the whole of a course the subject of statutory interpretation
tends to get little more than one lecture and one tutorial or seminar,
though the position is better in countries such as Australia which are
more advanced in the subject. Added to this, teaching colleagues tend
to treat the cases in their own subjects as establishing propositions
of law in that subject, rather than being interested in how the courts
came to formulate those propositions in the way that they did. I myself
decided to give up my lectures on statutory interpretation to Bar students
in the 1980s when I was asked by the CLE to limit citation of cases to
those that had an importance in the legal subject with which they were
concerned.
To this bleak view of legal education there has to be added the equally
bleak fact, mentioned at the beginning of this article, that many Judges,
especially in England seem uninterested in framing their judgments according
to any developed theory of statutory interpretation. There are many court
citations of my large book, as can be gathered from the internet. Very
few mention section 193, the basic rule.
The trouble starts in the law schools. Oliver Jones, an Assistant Professor
in the Faculty of Law in the University of Hong Kong, suggests an answer.
Often, statutory interpretation remains only part of a subject, even if
it has been upgraded from module to major component. Further, it is taught
at the outset of the undergraduate legal curriculum, when, says Jones,
the legal brain is embryonic. Students need to receive a brief introduction
to the discipline at the beginning of their studies. “However, it
must also become an entire compulsory subject at an advanced stage of
the law degree.”
Jones points out that the modern approach to statutory interpretation
is completely different from what it was in the recent past. There is
no doubt, he says, that “statutory interpretation is now a bespoke
exercise”. It involves the application of an entire process and
mindset which can, and must, be learned before it is first attempted in
professional life. The Commonwealth Legal Education Association (CLEA)
has suggested that Jones produce a model curriculum for an advanced core
subject on statutory interpretation. He has invited me to join him in
this project, and I have been pleased to do so.
Conclusions
My aim in this article has been to clarify a number of points concerned
with statutory interpretation. I hope it has established the following
propositions.
1. A distinction needs to be drawn between theories of statutory interpretation
when it is considered as an area of legal practice and theories regarding
the best method of teaching that.
2. When Lord Wilberforce doubted whether statutory interpretation is a
genuine subject for the Law Commission, and suspected it to be a non-subject,
he was considering it as an area of legal practice. His statement was
with respect mistaken. The Law Commission is charged by statute with the
function of codification of the law. My book Bennion on Statutory
Interpretation has at its heart a code which as an experienced legislative draftsman
I drafted in a form suitable for being adopted as an Act of Parliament.
The Law Commission could perfectly well have so adopted it in pursuance
of their statutory function. They have shown no interest in doing so.
3. My own theory of statutory interpretation considered as an area of
legal practice is outlined in some detail above. Willis, as I have said,
produced the theory that there were but three interpretative criteria.
In Canada Elmer Driedger produced a famous theory,
which I have ventured to criticise. Then we have Eskridge’s dynamic
theory in the US. There
have been other such theories. The
leading Australian text, Pearce
and Geddes,
does not purport to lay down a theory, though the expert Jeffrey Barnes
says that underlying their book is an unstated theory:
“In this sense I would agree that Pearce and Geddes is a contribution
to theory, but my view is that Pearce and Geddes set out the law or describe
the law rather than theorise it in the sense of ‘give a conception
of”, present the topic in a fresh and original light, draw out unstated
assumptions, present a framework of the law, etc.”
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All this further refutes the Wilberforce claim that statutory interpretation
is a non-subject.
4. Many English Judges, no doubt influenced by the Wilberforce claim,
continue to avoid propounding any general theory of statutory interpretation
considered as an area of legal practice. I maintain that they are misguided
and that they should adopt my own theory, which is securely based in law
and practice as prevailing in England and Wales or adopted in other common
law countries.
5 I further maintain that there should be an established theory of teaching
statutory interpretation, and that this should not be done exclusively “on
the job” through quasi-apprenticeships. Such a theory cannot be
established unless there is in place beforehand a generally accepted theory
of statutory interpretation considered as an area of legal practice.
6. It may well be desirable to develop separate theories for teaching
statutory interpretation in academic institutions such as universities
(which needs to be done) and teaching it in vocational training institutions.
7. More time and attention should be given to teaching this essential
subject, which is deployed across the board in today’s legal practice.
------------------------
81
ALJ (2007), 601-608.
Murray
Gleeson CJ, “The Meaning of Legislation: Context, Purpose and Respect
for Fundamental Rights”, Victoria Law Foundation Oration, Melbourne,
31 July 2008, p. 11, http://www.highcourt.gov.au/speeches/cj/cj_31jul08.pdf.
Murray
Hunt, ‘The Human Rights Act and Legal Culture: The Judiciary and
the Legal Profession’, 26.1 Journal of Law and Society, March 1999,
pp 86–102.
Op.
cit., p. 1.
F
A R Bennion, Understanding Common Law Legislation: Drafting and Interpretation (Oxford University Press, 2001). The OUP are shortly to republish this
as a paperback.
This
system, based on the common law, excludes European principles. In Bennion
on Statutory Interpretation European matters are dealt with separately
in Division Seven.
An
example of NESSSI in action is given in my article “The Real IRA
Is Proscribed After All” in 168 JPN (4 September 2004) 694, www.francisbennion.com/2004/020.htm.
On the teaching of statutory interpretation using NESSSI see www.francisbennion.com/2007/nfb/005.htm.
For a case which has used NESSSI see Medical Council of Hong Kong
v Chow (2000) 3 HKCFAR 144; [2000]
2 HKLRD 674; [2000] 2 HKC 428, at [28], http://www.hklii.org/cgi-hklii/disp.pl/hk/jud/eng/hkcfa/2000/FACV000003_2000-21991.html?query=title+%28+%22medical+council%22+%29.
.
Some modern Judges are more advanced, e.g. Arden LJ, who has just published
an article suggesting two theories of statutory interpretation, which
she calls the Agency Model and the Dynamic Model: see “The Changing
Judicial Role, Human Rights, Community Law and the Intention of Parliament”,
67 Cambridge
Law Journal (Nov. 2008) pp. 487-507.
For
a rare exception see Medical Council of Hong Kong v Chow (2000)
3 HKCFAR 144; [2000] 2 HKLRD 674;
[2000] 2 HKC 428 at [28], http://www.hklii.org/cgi-hklii/disp.pl/hk/jud/eng/hkcfa/2000/FACV000003_2000-21991.html?query=title+%28+%22medical+council%22+%29.
Oliver
Jones, “Statutory Interpretation: the Case for a Core Subject”,
5(2) Journal of Commonwealth Law and Legal Education (2008),
pp. 85-96 at 88.
Ibid.
See
Ruth Sullivan, Sullivan on the Construction of Statutes (5th edn, 2008),
ch.1.
MSee
entries under Dreidger’s name in the index to Bennion on Statutory
Interpretation (5th edn,
2008).
William
Eskridge, Dynamic Statutory Interpretation (Cambridge, Massachusetts:
Harvard University Press,
1994).
See,
eg, “A Unified Theory of Statutory Interpretation” by R N
Graham, Assistant Professor, Faculty of Law, University of New Brunswick,
drawn from “A Unitarian Theory of Statutory Interpretation”,
R N Graham, 1999, York University.
Pearce
and Geddes, Statutory Interpretation in Australia, 5th edn, Butterworths,
Australia, 2001.
S
J GrPrivate communication to author.
I
am grateful to various colleagues, notably Jeffrey Barnes, Oliver Jones
and Ian McLeod, for helpful
comments on drafts of this article.
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