Advantages of Literal Rule

Advantages, and disadvantages of, and justifications for the literal rule

1. It encourages precision of drafting - but does it - who would deliberately be careless?

2. It is said to give certainty - but is this really true? - there is no certainty as to literalism, so therefore there is no certainty.

3. Judicial interpretation grants law making powers to judges - a derogation from parliamentary supremacy.

4. It can create absurd results.

5. It is not useful when deliberately broad terms are used .

6. Perfect drafting is impossible.

7. It is used because judges are afraid of losing their perceived independence by making necessarily political purposive constructions on Acts.

8. In addition, the question of what is absurd or immoral and therefore allowing the plain words of a statute to be ignored is by necessity a subjective one, and so the interpretation will vary with the judge's background, upbringing, education, and beliefs; which will inevitably differ greatly from the mean at least some of the time. The result clearly is that use of any construction other than the literal binds the entire population by one man's moral judgement. Although this may not be controversial where there is no dispute as to the 'correct' result (although correctness is surely neither absolute nor objective) in some areas of law, non-literal constructions are one man statutes on matters that should properly be the subject of public debate. Thus although the results of judicial legislation may be 'right' (whatever rightness is), it is only by accident that this is so.

9. Because of the need for certainty in the criminal law there is a stronger presumption here that the literal meaning of words should be used.

10. It is used because many statutes are the result of a political decision that has not been thought through and to win political 'points' - it is often to anticipate whether, e.g., Parliament intended the criminal law to be unfair and unjust.

11. On the other hand, the court that tries to enforce Parliament's will is more likely to succeed than the court that does not; but it may severely compromise justice and certainty in doing so - the person following the statute should not have to speculate as to what the law is (this is only relevant in the criminal law).

12. It is used because if judges rewrote law according to moral judgements, people would sue to see if they could get a favourable judgment - there would hence be a vast increase in litigation.

13. It will always be used unless an absurdity would result (and sometimes even then)

14. The problem with the literal rule is that although it sounds simple, there is not always a prescribed meaning for words - the ordinary meaning may not be so ordinary at all - problems finding the natural meaning of words frequently occur, e.g., in R. v. Maginnis 1987, did temporarily holding drugs on someone else's behalf (i.e. taking the drugs from them to return them at a later date) amount to an "intent to supply"- Held, "Yes" (4-1, but both sides claimed that their meaning of supply was the ordinary one, even though the minority definition came from a dictionary).