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Advantages and Disadvantages of the constitutional interpretation

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Frances Chee
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12 views2 pages

Advantages and Disadvantages of the constitutional interpretation

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Uploaded by

Frances Chee
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Advantages and Disadvantages of the Golden Rule

Advantages Disa

 it allows the court to make sensible decisions  it only allows judges to


very limited circumstan
 it prevents parliament from having to pass amending legislation
 Micheal Zander describ
 it respects the authority of parliament because it only allows is not much use
wording to be altered in very limted situations where the outcome
would be absurd or repugnant  it could not be used in c
the situation could be c
repugnant
 it is unpredictable and l
 because the rule does n
wording of a statute

Evaluation

the golden rule is the modfication of the literal rule and says that judges should use the literal rule unless it

Advantages and Disadvantages of the MIschief Rule

Advantages Disadvanta

 it gives effect to parliament's intentions  finding the intention of Parliament can b

 it allows judges to use their common sense and save  it is reasonable to argue that what parli
parliament time what it actually wrote in the act

 it allows judges to consider social and technological  it is undemocratic


changes
 the rule is out of date and does not refle
 it allows judges to look at external aids like Hansard as
in 'Pepper v Hart'  it might cause uncertainty if a judge cha

Evaluation

the mischief rule was laid down in 'Heydons' case judges should consider 4 main factorswhat was the common
was the mischief that the act was designed to remedywhat was the remedy that parliament were trying to provi
remedy
Advantages and Disadvantages of the Purposive approach

Advantages Disadva

 it makes sense to look at the whole purpose of the act  finding the intention of parliamen

 it gives effect to parliaments intentions  it is undemocratic

 it allows judges to use their common sense  it might cause uncertainty if a ju

 it is also sensivble to use external aids like Hansard

 it allows judges t9o consider social and technological changes

Evaluation

the purposive approach is used in Europe and Britains membership of the EU and the human rights act

Advantages and disadvantages of the literal rule

Advantages Disad

 It respects the theories of Separation of Powers and Supremacy of  The rule clearly produces a
Parliament by avoiding judges being accused of law-making. which cannot represent Pa

 Some judges argue that they are doing Parliament a service by  It ignores the fact that lang
drawing faulty legislation and loopholes to their attention (Fisher v change in meaning over tim
Bell). to be given broader contex

 Alternative approaches might be unpredictable where the literal rule  The rule demands standar
offers certainty and consistency. This makes it easier for people to parliamentary draftsman.
know what the law is and how judges will apply it.

Evaluation

Literal rule is used less by judges, as they now favour the purposive approach. Cases to illustrate the literal rule
North Eastern Railway co. v Berriman (railway compensation) and Whitley v Chappell (voting).

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