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Tuesday, May 4, 2010

Literal Approach Contd...

The most common retort from those who favour the literal approach is that, in spite of some problems, it promotes the certainty which is one of the chief objectives of any legal system.

If all judges always followed the policy of literalism, it may be that there would be some gain in certainty. But in practice they do not. Even the most diehard advocates of the literal approach sometimes lapse into some alternative method. One commentator has written

'[T]he doctrine of literalness can never be applied successfully to general words. For they always include something more than the scope and object of the statute require and so it leads to ridiculous results.' Even those judges who insisted strongly upon the principle of literal adherence to the words, deserted it in such circumstances.' Lord Tenterden, who fathered the doctrine, sometimes found that literal meanings could not have been intended. And Lord Bramwell, who affirmed the doctrine with his usual vigour and challenged anyone to show him an absurdity so great as to entitle him to depart from the plain meaning, had some interesting lapses ... Lord Halsbury stated the doctrine of literalness as uncompromisingly as anyone. But in a case before the House of Lords in l890 he deserted it and appealed to the "equity of the statute."'

. . .

And at further:

The literalist approach makes too little allowance for the natural ambiguities of language, for the frailties of even the most skilled of draftsmen and for the impossibility of foreseeing future events. In its l969 report The Interpretation of Statutes, the Law Commission said:

To place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship; it presupposes that the draftsmen can always choose words to describe the situations intended to be covered by the provision which will leave no room for a difference of opinion as to their meaning. Such an approach ignores the limitations of language, which is not infrequently demonstrated even at the level of the House of Lords where Law Lords differ as to the so-called 'plain meaning' of words [para. 30].

The literal approach is based on a narrow concentration on the actual words used, to the exclusion of the surrounding circumstances that might explain what the words were actually intended to mean.

Finally :

A final criticism of the literal approach to interpretation is that it is defeatist and lazy. The judge gives up the attempt to understand the document at the first attempt. Instead of struggling to discover what it means, he simply adopts the most straightforward interpretation of the words in question - without regard to whether this interpretation makes sense in the particular context. It is not that the literal approach necessarily gives the wrong result but rather that the result is purely accidental. It is the intellectual equivalent of deciding the case by tossing a coin. The literal interpretation in a particular case may in fact be the best and wisest of the various alternatives, but the literal approach is always wrong because it amounts to an abdication of responsibility by the judge. Instead of decisions being based on reason and principle, the literalist bases his decision on one meaning arbitrarily preferred.

An example of the use of the literal approach is the case of Gibiino v. Barcellona [1]

[1] Gibiino v. Barcellona (l973) 35 D.L.R. (3d) 477 (Man. Q.B.) see also, Long v. Western Propeller Co. (l968), 63 W.W.R. l46 (Man. C.A.)

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