Internal guidance
- This guidance provided in the PRINCIPLE ACT
- There is a definition sections which assits the judge to interpret
- 1)Closed definition - "means" narrowing down the range of definition
- 2)Open definition - "inculde" give a wide discretionary power to the courts to interpret the meaning of words and phrase.
External guidance
-This guidance provided in act other than PRINCIPLE ACT
- Using Acts of interpretation Act to give general interpretation guidance.
Sunday, July 26, 2009
How is the doctrine of precedent applied in constructing statutes and why is it important?
Once the interpretation has done, all the lower courts in the same hierachy have to be bounded as conform to the doctrine of precedent. By this, the superior courts will act as a source of guidance to the lower courts, so that the interpretation of law is consistency and predictability.
Judicial guidance
Literal rule
- allows judges to interpret the words in the ordinary and natural english meaning.
- Not judges' duty to vary it, even the result is inconvenient.
Golden rule
-allows judges to escape any absurdity created by literal rules
-Intended meaning of words can be made clear by applying it in accordance with the text.
Mischief rule
-interpret status in accordance with the intention of parliament.
Canons of construction
- These are rules which established presumption of interpretations, which guide judges when there is no statutory rules exists.
The rules of (Noscitur a sociis) and (Ejusdem generis) fking latin..
- Noscitur a sociis allows interpretation of words or phrase which derived from its context
- Ejusdem generis, where words of the particular meaning followed by words of general meaning.
- allows judges to interpret the words in the ordinary and natural english meaning.
- Not judges' duty to vary it, even the result is inconvenient.
Golden rule
-allows judges to escape any absurdity created by literal rules
-Intended meaning of words can be made clear by applying it in accordance with the text.
Mischief rule
-interpret status in accordance with the intention of parliament.
Canons of construction
- These are rules which established presumption of interpretations, which guide judges when there is no statutory rules exists.
The rules of (Noscitur a sociis) and (Ejusdem generis) fking latin..
- Noscitur a sociis allows interpretation of words or phrase which derived from its context
- Ejusdem generis, where words of the particular meaning followed by words of general meaning.
Reasons why statues need to be interpreted
1) Parliament has given the courts wide discretionary power
- Give judges necessary flexibility to apply the law fairly
- Because, it is imposibble for the parliament to address every part of the law
2) The meaning of words and phrase in statutory law is unclear
- Since english is notoriously ambiguous and has variety of meanings
-Therefore, the meaning of words and phrases changes over time, hence , the judge is allowed to interprete the meaning to bring about just outcomes.
- Give judges necessary flexibility to apply the law fairly
- Because, it is imposibble for the parliament to address every part of the law
2) The meaning of words and phrase in statutory law is unclear
- Since english is notoriously ambiguous and has variety of meanings
-Therefore, the meaning of words and phrases changes over time, hence , the judge is allowed to interprete the meaning to bring about just outcomes.
Saturday, July 25, 2009
Ratio decidendi Vs Obiter Dictum Vs Stare decisis
Ratio decidendi
- In latin, reasons for dicision
- It is a principle stated that, every lower courts in same hierachy are compelled to follow the decision of the upper court. ( doctrine of precedent )
Obiter dictum
- In latin, remark in passing
- These are judicail observation
- Not binding, but persuasive observation.
Stare decisis
- In latin, stand by things decided
- The principle dictates that once a superior court created a case law, all lower courts in the same hierachy must adopt the same ratio
- brings about consistencry to the application of case law
-The members of community are able to predict the outcome of the court's decision.
- In latin, reasons for dicision
- It is a principle stated that, every lower courts in same hierachy are compelled to follow the decision of the upper court. ( doctrine of precedent )
Obiter dictum
- In latin, remark in passing
- These are judicail observation
- Not binding, but persuasive observation.
Stare decisis
- In latin, stand by things decided
- The principle dictates that once a superior court created a case law, all lower courts in the same hierachy must adopt the same ratio
- brings about consistencry to the application of case law
-The members of community are able to predict the outcome of the court's decision.
Parliament Vs Courts
Parliaments
- democratically elected by the people, therefore it gains its authority to make law from the consitution and approval from the people.
Courts
- Only make law when the legislations stated are unclear, and to bring about just outcome.
- * Only superior courts and above can make laws.
Role of Judge -reslove disputes to bring about just outcomes
- making case law
Judges create laws in 2 ways
Judicial pronouncement - when there is no statutory law exits, refer to past precedent as guidance, if no relevant authority exits, they create new law to bring about just outcome.
Statutory interpretaion - when the statutory law is unclear, then judge will creates case law when giving meaning to words or phrase in statutes to resolve disputes.
- democratically elected by the people, therefore it gains its authority to make law from the consitution and approval from the people.
Courts
- Only make law when the legislations stated are unclear, and to bring about just outcome.
- * Only superior courts and above can make laws.
Role of Judge -reslove disputes to bring about just outcomes
- making case law
Judges create laws in 2 ways
Judicial pronouncement - when there is no statutory law exits, refer to past precedent as guidance, if no relevant authority exits, they create new law to bring about just outcome.
Statutory interpretaion - when the statutory law is unclear, then judge will creates case law when giving meaning to words or phrase in statutes to resolve disputes.
Subscribe to:
Posts (Atom)
