In the context of the English legal system, explain:
(b) the literal approach, including the golden rule; and (4 marks)
参考答案:
The literal approach The literal approach is dominant in the English legal system, although it is not without critics, and devices do exist for circumventing it when it is seen as too restrictive. This view of judicial interpretation holds that the judge should look primarily to the words of the legislation in order to construe its meaning and, except in the very limited circumstances considered below, should not look outside of, or behind, the legislation in an attempt to find its meaning. Within the context of the literal approach there are two distinct rules: (i) The literal rule Under this rule, the judge is required to consider what the legislation actually says rather than considering what it might mean. In order to achieve this end, the judge should give words in legislation their literal meaning, that is, their plain, ordinary, everyday meaning, even if the effect of this is to produce what might be considered an otherwise unjust or undesirable outcome. In Whitley v Chapell (AHFH), the legislation under consideration made it an offence to impersonate any person entitled to vote. The accused had actually impersonated a dead person and was found not guilty, as a dead person was not entitled to vote. (ii) The golden rule This rule is applied in circumstances where the application of the literal rule is likely to result in what appears to the court to be an obviously absurd result. It should be emphasised, however, that the court is not at liberty to ignore, or replace, legislative provisions simply on the basis that it considers them absurd; it must find genuine difficulties before it declines to use the literal rule in favour of the golden one. As examples, there may be two apparently contradictory meanings to a particular word used in the statute, or the provision may simply be ambiguous in its effect. In such situations, the golden rule operates to ensure that preference is given to the meaning that does not result in the provision being an absurdity. In Adler v George (AIFD), the defendant was found guilty, under the Official Secrets Act AIB0, with obstruction ‘in the vicinity’ of a prohibited area, although she had actually carried out the obstruction ‘inside’ the area.