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Tuesday, May 4, 2010

Chapter-11 Heydon's Rule Part-1

Heydon’d Rule[The Mischief rule Of Interpretation]

Later, in Coke's Institutes, we read to similar effect:

"Equity is a construction made by the judges, that cases out of the letter of a statute, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that the statute provideth; and the reason hereof is, for that the law-makers could not possibly set down all cases in express terms."

The approach in Heydon's case, emphasizing as it does the need to find the purpose or object or spirit of the statute and to advance that object in interpretation, nevertheless is expressed in the somewhat archaic language reflecting the view that statutes were a mere appendix to the common law. Today, the tables are reversed, and common law is increasingly being swallowed up by an orgy of legislation. Thus the modern rule in Heydon's case might be expressed better as to the first four points, this way:

1. What was the state of the law, if any, on the relevant subject matter before the legislation in question was passed?

2. What was the social, political, economic or other problem that gave rise to the need for the statute?

3. What was the solution that was to be embodied in the statute?

4. What was the purpose aimed at by this solution?

The mischief approach embodies a purposive interpretation of the text. Utilizing a much wider context for the text of the statute, we interpret the statute to advance the purpose. We all know that lawyers are "loophole hunters." The literal approach allows us to get around the purpose or spirit of the law by narrow construction. At other times, however, a plain reading may apply wider provisions of the statute to circumstances that arguably shouldn't be governed by the statute. The purposive approach would allow for a narrow reading of a wide provision, or a wider reading of a narrow provision, but only if the purpose of the statute demanded such a reading.

The mischief approach is a vast improvement over the literal and golden approach in that it acknowledges that we give meaning to words by supplying the context and that rules in statutory form are more than ends in themselves. Rules are a means to an end. However, the use of the purposive approach has difficulties associated with it.

Mischief Approach - "plain meaning" may be avoided in order to give effect to the purpose or object of the legislation - to suppress the mischief sought to be remedied by the statute and to advance the remedy.

This approach finds its historical roots way back prior to the formalist period, just as the more flexible conventions of precedent may be seen as being as much a return to the past as they are a modern phenomena.

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