Judicial Interpretation

Judicial Interpretation ex Wiki
Judicial interpretation is a theory or mode of thought that describes a general approach which the judiciary uses to interpret the law, particularly constitutional documents and legislation. This is a substantive issue in the United States to a greater extent than in other nations because the nation's highest court, the Supreme Court, has the power to overturn laws made by the legislature in a process called judicial review. In effect, the court can decide such matters as the legality of slavery as in the Dred Scott decision, desegregation as in the Brown v Board of Education decision, and abortion rights as in the Roe v Wade decision. As a result, how justices interpret the constitution, and the ways in which they approach this task, has a political aspect. Terms describing types of judicial interpretation can be ambiguous; for example, the term judicial conservatism can vary in meaning depending on what is trying to be "conserved". One can look at judicial interpretation along a continuum from judicial restraint to judicial activism, with various viewpoints along the continuum.

In the United States, there are various methods of constitutional interpretation:

• Textualism involves judges consulting the actual language of the Constitution first, pondering about its meaning, and then using this standard as their final judgment. Government scholar John E. Finn wrote that this approach has "obvious appeal" for its simplicity but can be hampered when the language of the Constitution itself is ambiguous.^[1]
• Strict constructionism involves judges interpreting the text only as it was written; once a clear meaning has been established, there is no need for further analysis, according to this approach, which advocates that judges should avoid drawing inferences from previous statutes or the constitution and instead focus on exactly what was written.^[2] For example, Justice Hugo Black argued that the First Amendment's wording in reference to certain civil rights that Congress shall make no law should mean exactly that: no law, no exceptions.
• Founders' Intent involves judges trying to gauge the intentions of the authors of the Constitution. Problems can arise when judges try to determine which particular Founders or Framers to consult, as well as trying to determine what they meant based on often sparse and incomplete documentation.^[1]
• Originalism involves judges trying to apply the "original" meanings of various constitutional provisions.^[1] For example, Supreme Court justice Antonin Scalia believed that the constitution should "mean the same thing in 2013 as its writers intended in 1787".^[3]
• Balancing happens when judges weigh one set of interests or rights against an opposing set, typically used to make rulings in First Amendment cases. For example, cases involving freedom of speech sometimes require justices to make a distinction between legally permissible speech and speech that can be restricted or banned for, say, reasons of safety, and the task then is for justices to balance these conflicting claims. The balancing approach was criticized by Supreme Court justice Felix Frankfurter who argued that the Constitution gives no guidance about how to weigh or measure divergent interests.^[1]
• Prudentialism discourages judges from setting broad rules for possible future cases, and advises courts to play a limited role.^[1]
• Doctrinalism considers how various parts of the Constitution have been "shaped by the Court's own jurisprudence", according to Finn.^[1]
• Precedent is judges deciding a case by looking to the decision of a previous and similar case according to the legal principle of stare decisis, by finding a rule or principle in an earlier case to guide their judgment in a current case.^[1]
• Structuralism is a method judges use by searching for the meaning of a particular constitutional principle only by "reading it against the larger constitutional document or context," according to Finn.^[1] With this approach, judges try to understand how a particular ruling fits within the larger structure of the entire constitution.
• Functionalism.^{[citation needed]}

 

Constitutional Interpretation ex Wiki
The Wiki includes this under the general heading of Judicial Interpretation

 

Statutory Interpretation ex Wiki
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and to delegated legislation such as administrative agency regulations.

 

Plain Meaning Rule ex Wiki
The plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts.^[1] The other two are the “Mischief Rule” and the “Golden Rule.”

The plain meaning rule dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute. In other words, a statute is to be read word for word and is to be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms otherwise or unless the result would be cruel or absurd. Ordinary words are given their ordinary meaning, technical terms are given their technical meaning, and local, cultural terms are recognized as applicable. The plain meaning rule is the mechanism that prevents courts from taking sides in legislative or political issues.^[2] Additionally, it is the mechanism that underlies textualism and, to a certain extent, originalism.

 

Mischief Rule ex Wiki
The mischief rule^[1] is one of three rules of statutory interpretation traditionally applied by English courts.^[2] The other two are the "Plain Meaning Rule" (also known as the "literal rule") and the "Golden Rule".

The main aim of the rule is to determine the "mischief and defect" that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. In applying the Mischief Rule the court is essentially asking what part of the law did the law not cover, but was meant to be rectified by the parliament in passing the bill.

The rule was first laid out in a 16th-century ruling of the Exchequer Court.

Meaning and use
Conway v Rimmer is a rule of construction that judges can apply in statutory interpretation in order to discover Parliament's intention. In applying the rule, the court is essentially asking the question: what was the "mischief" that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court?

The Mischief Rule is of narrower application than the Golden Rule or the Plain Meaning Rule, in that it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to remedy a defect in the common law.

Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes.

The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. It can be argued that this undermines Parliament's supremacy and is undemocratic as it takes law-making decisions away from the legislature.

The way in which the mischief rule can produce more sensible outcomes than those that would result if the literal rule were applied is illustrated by the ruling in Smith v Hughes [1960] 2 All E.R. 859. Under the Street Offences Act [1959], it was a crime for prostitutes to "loiter or solicit in the street for the purposes of prostitution". The defendants were calling to men in the street from balconies and tapping on windows. They claimed they were not guilty as they were not in the "street". The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes.

 

Golden Rule ex Wiki
In law, the Golden rule, or British rule, is a form of statutory construction traditionally applied by English courts. The other two are the “Plain Meaning Rule” (also known as the “literal rule”) and the “Mischief Rule.”

The golden rule allows a judge to depart from a word's normal meaning in order to avoid an absurd result.

The term "golden rule" seems to have originated in an 1854 court ruling,^[1] and implies a degree of enthusiasm for this particular rule of construction over alternative rules that has not been shared by all subsequent judges. For example, one judge made a point of including this note in a 1940 decision: "The golden rule is that the words of a statute must prima facie be given their ordinary meaning."^[2]

Circumstances of use
Although it points to a kind of middle ground between the plain meaning (or literal) rule and the mischief rule, the golden rule is not, in a strict sense, a compromise between them. Like the plain meaning rule, the golden rule gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature's intention, the golden rule dictates that a judge can depart from this meaning. In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning; if the word only has one meaning, but applying this would lead to a bad decision, the judge can apply a completely different meaning.

History and evolution
The rule is usually based on part of Becke v Smith (1836) 2 M&W 195 per Justice Parke (later Lord Wensleydale), which states:

It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.

Twenty years later, Lord Wensleydale restated the rule in different words in Grey v. Pearson (1857) 6 HL Cas 61, 106; 10ER 1216, 1234. He wrote:

[I]n construing statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but not farther.

With time, the rule continues to become more refined and therefore to be a more precise and effective tool for the courts. More than a century after Grey v. Pearson, a court added this caveat: "Nowadays we should add to 'natural and ordinary meaning' the words 'in their context and according to the appropriate linguistic register' "

 

Parliamentary Sovereignty ex Wiki
United Kingdom & Parliamentary sovereignty in the United Kingdom
History

Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the "King in Parliament", and constitute Parliament. The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

— A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)

During the 17th century in England, a notion developed that Parliament (made up of the House of Lords and House of Commons) shared in sovereignty with the King, based on an entirely erroneous notion of the history of parliament.^[3] It was not until the changing of the Coronation Oath in the Coronation Oath Act 1688 as part of the Glorious Revolution that Parliament was recognised as part of the constitutional structure, with laws being considered to emanate from Parliament and not just the King.^[4][5] The Bill of Rights was passed the following year which asserted certain rights of Parliament and limited the powers of the monarch.^[6][7] Furthermore, in 1698 parliament created the Civil List, a financial arrangement that left the monarch reliant on parliament for income.^[8][9]

After 1689 English parliamentary supremacy became evident in the relation of the English parliament to those of Scotland and Ireland. The Act of Settlement 1700 made a presumption upon Scotland: the Scots retaliated with the Act of Security 1704, which was countered by the Alien Act 1705: the issue was settled by the Union of the parliaments of England and Scotland in 1707 which created a new British parliament, though "in essence it was just an extension of the English parliament".^[10] It is arguable whether the concept of parliamentary supremacy arose from the Acts of Union 1707 or was a doctrine that evolved thereafter.^[11] The autonomy of the Parliament of Ireland also came under attack and the Declaratory Act 1720 made the Irish parliament a dependency. The so-called Constitution of 1782 removed British parliamentary supremacy over Ireland for a short period but then the Irish parliament was merged with Britain's in the Acts of Union 1800.

The doctrine of parliamentary supremacy may be summarized in three points:

• Parliament can make laws concerning anything.
• No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).
• A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.

Some scholars and judges have questioned the traditional view that Parliament cannot bind itself, arguing that it can impose procedural (or "manner and form") restrictions on itself, since the legislature must be constituted and regulated by legal rules.^[12]

The notion of parliamentary sovereignty began to be challenged with the Parliament Act 1911 which changed the nature of what was meant by parliament, as Dicey regretfully noted in the Introduction to the 8th edition of his Introduction to the Study of the Law of the Constitution (1915), but that while the reality was now Cabinet and political party were supreme (pp lxxii–lxxiv), in law parliament was still sovereign albeit that "the share of sovereignty" of the Commons had increased (p xlii).

European law does not recognize the British concept of parliamentary supremacy.^[13] The UK courts currently recognize the supremacy of EU law on those subjects where the EU can legislate.^[14][15] However, this supremacy conceptually derives from the European Communities Act 1972 and its successors, which could in theory be repealed by a future parliament. No sovereign state has ever withdrawn from the European Union (except for the withdrawal of the North African Départments of France at Independence to become Algeria, and also of Greenland by Plebiscite), but since the passage of the Treaty of Lisbon in 2009 there is now a defined process for doing so. 23 June 2016, a majority of the British people voted to leave the EU.

 

Royal Prerogative ex Wiki
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign alone.^[1] It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.

In most Constitutional monarchies individual prerogatives can be abolished by Parliament, although in the United Kingdom the royal prerogative is devolved to the head of the government and a special legal procedure allows parliament to challenge the prime minister's claim to use the 'right' of such reserve powers.^[2]

Though some republican heads of state also possess similar powers, they are not necessarily exactly the same as in every jurisdiction, and may have a number of fundamental differences both in the method of enforcement and extent of the powers available to the state's Chief Executive.

In Britain, while prerogative powers were originally exercised by the monarch acting alone, without an observed requirement for parliamentary consent (after Magna Carta), since the accession of the House of Hanover these powers have been generally exercised on the advice of the Prime Minister or the Cabinet, who in turn is accountable to Parliament, exclusively so, except in matters of the Royal Family, since at least the time of William IV.

Typically in liberal democracies that are constitutional monarchies as well as nation states, such as those of Denmark, Japan or Sweden, the royal prerogative serves as a prescribed ceremonial function of the state power.

 

Supreme Court of the United Kingdom ex Wiki
The Supreme Court of the United Kingdom is the supreme court in all matters under English and Welsh law, Northern Ireland law and Scottish civil law. It is the court of last resort and the highest appellate court in the United Kingdom, although the High Court of Justiciary remains the court of last resort for criminal law in Scotland. The Supreme Court also has jurisdiction to resolve disputes relating to devolution in the United Kingdom and concerning the legal powers of the three devolved governments (in Scotland, Wales and Northern Ireland) or laws made by the devolved legislatures.

The Supreme Court was established by Part 3 of the Constitutional Reform Act 2005 and started work on 1 October 2009.^[1][2] It assumed the judicial functions of the House of Lords, which had been exercised by the Lords of Appeal in Ordinary (commonly called "Law Lords"), the 12 judges appointed as members of the House of Lords to carry out its judicial business. Its jurisdiction over devolution matters had previously been exercised by the Judicial Committee of the Privy Council.

Because of the doctrine of parliamentary sovereignty, the Supreme Court is much more limited in its powers of judicial review than the constitutional or supreme courts of some other countries. It cannot overturn any primary legislation made by Parliament.^[3] However, it can overturn secondary legislation if, for example, that legislation is found to be ultra vires to the powers in primary legislation allowing it to be made. Further, under section 4 of the Human Rights Act 1998, the Supreme Court, like some other courts in the United Kingdom, may make a declaration of incompatibility, indicating that it believes that the legislation subject to the declaration is incompatible with one of the rights in the European Convention on Human Rights.^[4] Such a declaration can apply to primary or secondary legislation. The legislation is not overturned by the declaration, and neither Parliament nor the government is required to agree with any such declaration. However, if they do accept a declaration, ministers can exercise powers under section 10 of the act to amend the legislation by statutory instrument to remove the incompatibility, or ask Parliament to amend the legislation.^[5]

The current President of the Supreme Court is Lord Neuberger of Abbotsbury, and its Deputy President is Baroness Hale of Richmond.