Introduction
As statutes are generally the primary source of law, the ability to read and interpret legislators is perhaps one of the most important skills for legal practitioners in both civil and common law legal systems. Although the general perception in civil law jurisdictions is that the law has no gap and is comprehensive for every possible contingency, the reality is that no language - whether it is English, Kazakh, or Russian - enjoys the precision and universality of mathematics. One thus should not be surprised to see interpretation methodologies being used by civil law judges. In comparison, the skills to discern legislative intent is perhaps even more important in common law jurisdictions. Statutes are often drafted in more general terms in such legal systems. As a result, common law lawyers and judges are, at least to some extent, expected to supplement statutory law by referring to case law. It is therefore important for legal practitioners to understand the interpretation rules in order to provide better legal advice, predict legal outcomes, or even present a case better before the court.
One would wonder whether the rules of interpretation for common law judges would be applicable in the AIFC jurisdiction. According to Art. 26 (d) of the AIFC Court Regulations, the Court has exclusive jurisdiction in relation to 'the interpretation of AIFC Acts'. The meaning of 'AIFC Acts' is contained in the Regulations on AIFC Acts (AIFC Regulations No.1 of 2017), in which it defines AIFC Acts as 'Acts adopted by the AIFC Bodies'. An examination on the hierarchy of Acting Law of AIFC seems to suggest that AIFC Acts include 'Regulations', 'Rules', and 'other Acts of relevant AIFC Bodies adopted to regulate specific issues'. As such, one could expect to see applications of common law rules of statutory interpretation in interpretation of AIFC Regulations, Rules and other AIFC Acts.
The Three Rules
Throughout the development of common law, judges have devised three rules of interpretation, namely the Literal Rule, the Golden Rule, and the Mischief Rule.
Under the Literal Rule, courts interpret statutes in accordance with the plain or literal meaning of the words. Although this approach adheres to the words of the legislature, it may lead to absurdity or injustice results. This is perhaps demonstrated by the case Fish v Bell (1960) The defendant was charged under the Restriction of Offensive Weapons Act 1959 for displaying a 'flick knife' in his shop window. The question before the court was whether the element of 'offer', as required by the statute, was satisfied. In English contract law, there is a technical legal meaning for 'offer'. A well-established line of case law provides that displaying goods in shop windows is not an offer but merely an 'invitation to treat'. Applying this line of case law, the Court of Appeal held that under the literal legal meaning of 'offer', the shop-keeper had not made an 'offer' to sell a flick knife and thus was not guilty of the offence. This absurd result was certainly not intended by the legislature, and the aftermath was that the law was amended immediately to make it clear 'displaying' a flick knife was also an offence.
As a result, the Golden Rule emerged. The operation of the rule was explained in Gray v Pearson [1857] as follows: 'The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, to some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no further.' This then allows the courts to be more 'creative' when facing an absurdity or repugnance situation. Judges may choose between the possible meanings of a word or phrase (Adler v George [1964]), or even slightly modify words of a statute when necessary ( Gray v Pearson ). A vivid example of an application of the Golden Rule can be found in Re Sigsworth [1935], in which the court refused to apply the Literal Rule in order to prevent a murderer son from inheriting the estate of his mother who was the victim. In doing so, the court effectively modified the meaning of 'issue' to exclude issues who had killed the deceased.
The Mischief Rule provides yet another angle for judges when interpreting statutes. Originated from the Heydon's Case [1584], the court should consider the following four points:
(1) What was the Common Law before the making of the Act?
(2) What was the mischief and defect for which the Common Law did not provide?
(3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth?
(4) The true reason of the remedy; and then the office of all Judges is always to make such construction as shall suppress the mischief, and advance the remedy.
In other words, this rule requires judges to look at the gap in the previous law and interpret the statute so as to 'fix' the mischief. This situation is illustrated in Smith v Hughes [1960] where the defendants were prostitutes and had been charged under a statute that made it an offence to solicit in a street or public place. The defendants argued that they were soliciting from private premises in windows or on balconies although it remained visible to the public. Instead of adhering to the plain meaning of the words 'in a street or public place', the judges considered what mischief the statute was aimed at. In particular, the court commented that 'everybody knows that this was an Act... to enable people to walk along the streets without being molested or solicited... Viewed in this way, it can matter little whether the prostitute is soliciting while in the street or is standing in the doorway or on a balcony, or at a window, or whether the window is shut or open or half open'. Therefore, the defendants were guilty even though under a literal interpretation they would be in a private place.
Obviously, each of the mentioned rules has its own advantages and disadvantages. For example, the Literal Rule may lead to absurdity or an injustice result, whereas the Golden Rule and Mischief Rule may raise questions as to whether this is an 'usurpation of legislative function'. Nonetheless, it appears that a 'purposive' approach is now the preferred method. This view is supported by the landmark decision Pepper v Hart (1993) , in which Lord Griffiths commented that 'the days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted.' As a result, common law judges are using the purposive approach more readily.
Conclusion
Case Law is key in common law jurisdictions. Not only because they set out legal principles - this is merely the result - but more importantly precedents show the thinking and reasonings of the judges when facing a statute, ie the process. The language of law is usually expressed in general terms and, as demonstrated above, many of the disputes that come before the courts concern the meaning of words in a statute. Judges must decide on which of two possible meanings should be adopted or even whether they should 'fill in the gaps' where the legislation fails to cover a specific point. This then explains the lengthy discussions on the meaning of the statute and specific words as understood by the judges before a decision is made.
This article introduced three common rules of interpretation to the AIFC jurisdiction. Through exploring these interpretation techniques, it is believed legal practitioners will have a better understanding on common law judges' thought-process when delivering a decision. This knowledge is the foundation for one to better understand the common law legal system as well as various case law. As a result, one could provide better legal advice and predict legal outcomes. It may also assist an advocate in presenting his or her case in front of a common law court.
Written by Victor Chan, Supervisor, AIFC Academy of Law
30 April 2021
The views and opinions expressed in all DISCOURSE publications are those of the authors and do not necessarily reflect the official policy or position of the AIFC Academy of Law, any other AIFC body or entity, or any other agency, organization, employer or company. Assumptions made in the analysis are
