Critisism of Golden Rule
The Golden Approach can be criticized:
The United Kingdom Law Commissions commented in their report that:
“There is a tendency in our systems, less evident in some recent decisions of the courts but still perceptible, to over emphasise the literal meaning of a provision (i.e. the meaning in the light of its immediate and obvious context) at the expense of the meaning to be derived from other possible contexts; the latter include the ‘mischief’ or general legislative purpose, as well as any international obligation of the United Kingdom, which underlie the provision”.[1]
They also stated that to place undue emphasis on the literal meaning of words is to “assume an unattainable perfection in draftsmanship”.[2] This was written in 1969 and in the light of more recent judicial developments,[3] it seems that the courts have shifted somewhat from the literal approach. Zander[4] contends that:“The main principles of statutory interpretation-the literal rule, the golden rule and the mischief rule-are all called rules, but this is plainly a misnomer. They are not rules in any ordinary sense of the word since they all point to different solutions to the same problem. Nor is there any indication, either in the so-called rules or elsewhere, as to which to apply in any given situation. Each of them may be applied but need not be” Zander, in his more recent book,[5]criticised the golden rule for being silent as to how the court should proceed if it does find an unacceptable absurdity
1. It suffers from the same difficulties as the literal approach vis lack of wider contextual understandings of "meanings."
2. The idea of "absurdity" covers only a very few cases. Most cases involve situations where difficult choices have to be made between several fairly plausible arguments, not situations where the words lead to obvious absurdities.
3. The use of the "absurdity" safety valve can be very erratic as pointed out by Professor Willis in his famous article, "Statute Interpretation in a Nutshell" (l938) l6 C.B. Rev.l.
Willis at l3-l4:
What is an 'absurdity'? When is the result of a particular interpretation so 'absurd' that a court will feel justified in departing from a 'plain meaning'? There is the difficulty. 'Absurdity' is a concept no less vague and indefinite than plain meaning': you cannot reconcile the cases upon it. It is infinitely more susceptible to the influence of personal prejudice. The result is that in ultimate analysis the 'golden rule' does allow a court to make quite openly exceptions which are based not on the social policy behind the Act, not even on the total effect of the words used by the legislature, but purely on the social and political views of the men who happen to be sitting on the case ...
What use do the courts make of the 'golden rule' today? Again the answer is the same - they use it as a device to achieve a desired result, in this case as a very last resort and only after all less blatant methods have failed. In those rare cases where the words in question are (a) narrow and precise, and (b) too 'plain' to be judicially held not plain, and yet to hold them applicable would shock the court's sense of justice, the court will if it wishes to depart from their plain meaning, declare that to apply them literally to the facts of this case would result in an 'absurdity' of which the legislature could not be held guilty, and, invoking the 'golden rule,' will work out an implied exception.It was defined in Grey v. Pearson [6] "the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity"
· Luke v. I.R.C. 1963 - Lord Reid "It is only where the words are absolutely incapable of a construction that will accord with the apparent intention of the provision and will avoid a wholly unreasonable result that the words of the enactment must prevail."
· R. v. Allen 1872. It was held that bigamy meant go through ceremony even though the Act provided it was illegal to be married twice, even though the second marriage was void, so they had not literally broken the law.
· Re Sigsworth 1935, S murdered his mother and tried to claim his inheritance. There is a rule that no-one should profit from their wrong, this overruled a clear statutory right of a son to inherit on intestacy. Hence statutes may be modified on grounds of public policy, as one was in this case (the principle was an existing common law principle that would have applied had she had died having made a will). Although this a clear breach of the rule that clear and unambiguous words cannot be ignored, it surely accorded with Parliament's wishes.
· In Whiston v. Whiston 1995, public policy reasons prevented someone who had had a bigamous marriage (and was hence void), claiming money that they were clearly statutorily entitled to.
· If the words used are plain, unless the consequences are so absurd that Parliament must have made a drafting mistake" then the meaning must be used.
· Keene v. Muncaster 1980. In order to park in a certain way, permission was required from a policeman in uniform; the defendant was a policeman in uniform. It was held that permission had to be requested (i.e. from someone else).
· Adler v. George; it was an offence to obstruct the Forces "in the vicinity of", this was modified to avoid the absurdity of it not including "in", hence the Act as changed to "in or in the vicinity of"
[1] “The Interpretation of Statutes”, (Law Com No 21) (Scot Law Com No 11), Report No 21, paragraph 80 (1969).
[2] At paragraph 30.
[3] Pepper v Hart [1992] 3 WLR 1032.
[4] The Law Making Process (2nd edition, 1985), 129.
[5] The Law Making Process (4th edition, 1994), 130.
[6] Grey v. Pearson (1857) 6 HL Cas 1,[ibid]
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