Literal / Plain Meaning
The literal approach to interpretation follows the principle that the intention of the statute is reflected in its ordinary literal meaning. If the plain words of the legislation are clear then effect should be given to it and no further issues on interpretation arise.
The literal approach is attractive in that it does not involve judges in interpreting the policies and purposes behind the law. This leaves the courts less vulnerable to accusations of rewriting the law through interpretations. The principle holds that words should be given their ordinary and natural meaning. Once this is plain and unambiguous, does not lead to absurdity, effect should be given to it.
Further refinement or expression of the rule is the plain meaning principle. If the plain meaning is clear and unambiguous, it should be applied without further interpretation.
Approach to Interpretation
The ordinary meaning of a statute is not necessarily a self-evident concept. It may refer to an impressionistic understanding. It may refer to the dictionary meaning. It may refer to its meaning in a broader or in a narrower context.
In interpreting the ordinary meaning of legislation the judge will use his experience of the ordinary meaning of words. This implies that special or strange meanings are not been given to the language.
In interpreting a statute, expression should be given to every word. It should not be readily assumed that lawmakers used superfluous language.
In some context, there may be precedent interpretations of the words in the particular statute. the general interpretation of particular words will rarely be useful, other than in the context of the specific legislation concerned.
Ultimately, interpretation, even technical interpretation is a matter of law for the judge. Evidence will not generally be receivable in relation to the meaning of words. However, where a word has a particular meaning within a specialist area of expertise then evidence may be heard in relation to the meaning.
Some words have acquired legal meanings. It may be evident from the legislation that the legal meaning is required to be used. There will be cases however where the legal meaning is evidently not applicable, in which case the ordinary literal meaning will be given.
Words are always interpreted in their context. What may appear to be the ordinary meaning in the context of a sentence may be clearly intended to have a different meaning when placed in the context of surrounding words and sentences. This is reflected in the principle that words derive their meaning from their context.
There exist a number of judicial dictionaries and dictionaries of legal phrases. There may be helpful in many contexts. However, the interpretation of particular words and phrases in one statute may not necessarily be helpful in the context of another statute.
Dictionaries may be helpful in some contexts. It has been said that dictionaries and other sources should be looked at when alternative meanings and uses are shown to cast doubt in the singularity of the ordinary meaning or where there are grounds for suggesting the meaning of the word has changed since the statute was passed.
Where legislation is specialist in nature, contains technical language and is aimed at a particular group of persons, the technical or specialist meaning should be applied unless the context otherwise implies.
The maxims of interpretation are only general principles and will yield to contrary intention. They are not rules of law nor are they rigidly applied. They simply approach to interpretation. There are so-called canons of interpretation. Some of these are expressed by Latin maxims.
Where a sequence or list of particular words of a type is followed by words with a more general wider meaning with reference to the same subject matter, the meaning of the wider sweeping up words are presumed to be limited to things of the relevant class or type. This is the ejusdem generis rule.
It is presumed that the inclusion of the general expression is meant to sweep of remaining instances of the class rather than to simply open up a more general category. In effect, the general words are limited by the specific word.
The expression of one may imply the exclusion of another. This is another application of the principle that the meaning should be derived from context. Where the lawmakers have expressly mentioned one particular instance, this may be interpreted to mean that equivalent matters that might be mentioned but which are excluded were intentionally excluded.
Accordingly, where there is a common category or class covered and certain things commonly included in the class are omitted, the exclusion or omission is presumed intentional and to reflect the lawmaker’s intention.
Change in Meaning over Time
The meaning of words and context may change over time. Some legislation still in force was enacted in a different era and in a radically society. Changes in social conditions, technology, the law itself and the meaning of words may have implications in relation to interpretation. In many cases, the lawmakers did not and could not have envisaged future developments in technology and society.
The courts are willing on appropriate occasions to apply an updated interpretation. The legislation may not be fundamentally changed in this process. However, it may be interpreted to capture and encompass new things that fall within its ambit. Where however particular a matter or things could have been contemplated at the time and was not expressly mentioned, this is a basis for excluding it from the modern interpretation.
The Interpretation Act specifically provides that in interpreting statues and statutory instruments, the court may make allowance for changes in the law, social conditions, technology, the meaning of words used in the act or statutory instruments or other relevant matters, which have occurred since the date of the passing of the act or statutory instrument, but only insofar as its text, purpose and context permits.
The principle is applied both in relation to statues and common law. It reflects the principle that law is a living thing.
The Irish Constitution (Article 8) provides that the Irish language is the first official language. In some few cases, Acts are official in both the Irish and English language. In the event of a conflict, the court is to attempt to reconcile both versions on the basis that the same meaning was intended. In this case, where there is a conflict the Irish text is likely to prevail.
This provision is only relevant to the relatively small number of Acts that are officially given effect in Irish and English. In the case of translations, the principle does not arise.
The Official Languages Act provides that as soon as may be after an act is passed, the text is to be printed and published in each of the official languages simultaneously. The translation, in this case, is not the official copy.
Common Sense Meaning
Occasionally reference is made to a common sense interpretation of a statute. Whether there is a number of possible interpretations, that consisted with common sense preferred.
Common sense is a potentially vague criterion and is not being traditionally applied as such. However, it is sometimes used to express the logical and reasonable interpretation.
Purposive / Mischief Rule
The mischief rule is the origin f the modern purposive approach to legislation. The mischief rule derives from an ancient case known as Hayden’s case. The approach to interpretation looks at the purpose of the legislation. The approach asks
- what was the common law or statute before the act was made?
- what is the mischief (or problem and effect) which was not adequately provided for before?
- what was the remedy of the legislature in order to cure this defect?
- what was the purpose of the change?
However, in applying a purposive interpretation, the courts may not render legislation and wording redundant. Words should be interpreted so that they take effect rather than left ineffective, provided this interpretation is reasonable. Legislation should be interpreted so that it can be operative.
The purposive approach is based on the assumption that the wording is intended to have some purpose and effect. The issue arises principally when the wording is ambiguous or a number of possible meanings are open on a literal, plain meaning or common sense approach. As between the various possibilities, the interpretation consists with the purpose of the statute is preferred. Where each meaning would support the purpose of the statute, that giving best effect to it, is preferred.
A purposive meaning may limit or affect the ordinary common meaning. The meaning may be broadened, narrowed or modified. Often, a purposive interpretation is seen to be expansive departing from a narrower literal common sense meaning. In another context the purpose of meaning might be criticised as straining the literal meaning. In some cases, courts applying the purposive interpretation might be said to come close to lawmaking.
Literal v Purposive I
In some cases, the literal and purposive interpretation will support each other. In these cases, the literal meaning will be given effect in the normal way. The issue arises most pointedly when there is a conflict between the purposive and literal meaning.
The courts will generally apply a purposive meaning where there are some necessity to depart from the literal or common plain meaning. The courts have emphasised that the literal or plain meaning is to be preferred as this is more consistent with the constitutional division of the powers between the lawmakers and judges.
Where the language is plain and unambiguous, the question of the purpose or object of the legislation should not mattter. The Irish courts do not favour strained meanings being given, where the plain meaning can be given reasonable effect. The courts should not wish to leave themselves open to accusations of lawmaking.
Nonetheless, the Irish courts do support the purposive meaning, where the plain and literal meaning is anomalous, ambiguous or patency defeats the purpose of the legislation.
The purpose of legislation may be more or less apparent, depending on circumstances. In some cases, the purpose will be readily identifiable. In other cases it is far more a matter of interpretation for the judge.
Literal v Purposive II
The Irish courts take the view that where a purposive approach is justified, it should be clear and apparent. The purpose will rarely be stated in legislation. It is more likely to be implicit behind or within the whole scheme of the legislation.
The courts may have recourse to the context or to the act as a whole.
Where legislation is designed to reform a particular area such as to put to right social wrongs and provide reddress, a purposive approach is more likely.
In thecase of international treaties and EU legislation there is a tendency for a purposive interpretation. The courts seek to reflect the purpose behind it. This reflects a rule of international law that treaties are to be interpreted in good faith so that the ordinary meaning s to be given o the terms of the treaty in their context and in the light of its object and purpose.
International treaties do not necessary have the same precise language as that drafted domestically. They may be translated into numerous languages. This is said to justify a purposive of approach.
Consequence of Interpretation
Where consequences are inconsistent with constitutionality, fairness, reasonableness and established norms and legal concepts, the courts will tend to attempt to resist such an interpretation.
One view is that where the literal meaning is clear and unambiguous, the matter of the consequences is irrelevant. This is consistent with the role of the courts as declaring the law. The reference to consequences as with purposive interpretation, runs the risk that the courts maybe criticised as the lawmakers.
It is generally accepted that where a legal provision is ambiguous and capable of a number of meanings, that in this case, it is acceptable to have regards to the consequences.
In some cases there would be a binding in judicial decision on the interpretation of the statute. In this case, where the same facts as before the court, it should apply the same interpretation in accordance with the doctrine of precedent.
The courts have regards to the consequences of their interpretation. They may conclude that a particular interpretation would lead to an absurd, illogical, futile, pointless or inconvenient results. It is presumed that laws are not intended to require the impossible.
This is sometimes expressed where the proposition that the courts do not interpret the lawmakers to intend an absurdity.
In its judicial formulation, the courts interpret that the legislatives did not intend an absurdity. An absurdity is an entirely ridiculous inappropriate or unharmonious or nonsensical consequence.
All things been equal an absurd meaning should be avoided.
There may be differences of opinion between judges as to what constitutes an absurdity. In one case a court may hold that particular consequence simply follows and is not absurd while in another, the judge may hold the consequence to be absurd and find another interpretation.
There are different formulations as to the extent of absurdity, anomalous or inconvenient result that may be required, before more purposive interpretation may be applied. In some cases, an inconvenient onsequence may be sufficient grounds and basis. The greater the inconvenience, the greater the assumption it was not intended by the legislature.
Where the inconvenience is sufficient and there is an alternative reasonable interpretation opened, the court will tend to avoid the inconveniences. However in many cases, a mere inconvenient result is not sufficient to overthrow the plain meaning of the statute.
Similarly the courts d tend to avoid anomalous , illogical and abnormal results that are out of step with the existing legal principles, logic or understanding. Where there are a number of alternative implications, the most reasonable and logical is likely to be preferred. Once again judges may differ to what is sufficiently anomalous to justify deviation from a literal meaning.
Criminal / Penal
In contrast, technical and penal statues are less likely to be interpreted in this broad manner. In a case of penal statute, a narrow interpretation is preferred. The same reasoning applies to tax statutes. As taxation involves a taking, that statute is not to be given an unnecessarily expensive interpretation inconsistent with the wordings. Where the legislature wishes to tax, it must do so clearly.
The same principle applies to the criminalisation of conduct. Criminalisation should not readily be assumed on broad purposive or f implicit grounds. The legislature is expected to be precise in making penal laws.
McMahon Legal, Legal Guide Limited and Paul McMahon have no liability arising from reliance on anything contained in this article nor on this website.