The Literal Rule

Suggested reading (will require access to a legal database of cases):

Fisher v Bell [1961] 1 QB 394 (DC)
R v Harris (1836) 7 C&P 446
London and North Eastern Railway v Berriman [1946] AC 278 (HL)
Duport Steels Ltd v Sirs [1980] 1 All ER 529
R v Maginnis [1987] AC 303 (HL)
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 [1920] HCA 54
Chisom v Roemer (1991) 501 US 380 (LA SC)
Schwegmann Bros v Calvert Distillers Corporation (1951) 341 US 384 (SC)

The context

The textbook that accompanies this website considers the various ‘rules’ of statutory interpretation in detail. These rules inform how the judiciary goes about its task of determining the intention of Parliament. It is important that you understand the rules and how they operate in different circumstances and how they interact with each other. It is also important that you understand the dangers over and under judicial intervention and the consequence for individuals and for the development of the law. The default reliance on plain language in the interpretation of statutes means that the literal rule has a particular importance in the legal system. The position is captured by Lord Diplock as follows:

‘Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning’ Duport Steels v Sirs [1980] 1 All ER 529

As you read

This resource is intended to bring home to you the importance of ‘wider’ and ‘further’ reading as you progress in your legal study. It is not intended to provide you with a more detailed understanding of the ‘rules’ but rather to aid you in your legal study. For each of the chapters of the textbook, or for each lecture if you are studying for a law degree, it is only possible to cover so much material. The examples we chose tend to be the leading cases or, for the textbook, more recent examples of legal principles. It is very easy to treat the words in a textbook or on a lecture slide as the exhaustive, definitive treatment of a subject. The truth is that there is an almost unlimited supply of examples in the case law with which you could further illustrate the legal principles under discussion.

Legal research is a key skill required of a lawyer and a law student and so it is no real surprise that assessments within Law Schools tend to ‘reward’ evidence of research within assessments. This involves you being able, amongst other things, to call upon material that is not covered in your recommended textbook or by your formal course of study. Finding material is one thing but using that material in a relevant and persuasive manner is quite another! As you develop your research skills you will better understand how to translate what you have found into relevant argument. It is not an easy skill and involves you researching as you explore topics (rather than at the end of a course of module!). It also involves a recognition that material may be used to explore multiple topics or areas of law and so the relevance of material will vary.

Take, for example, the case of Fisher v Bell. You could explore this case purely from the perspective of contract law and what it tells us about the principles of ‘offer’ and ‘acceptance’. Equally, and more relevantly for our purposes, it may give us insight into the ‘rules’ of statutory interpretation.

The final purpose of this resource is to get you to think about how you might use sources from outside the jurisdiction of England & Wales in informing and developing your understanding of the rules within England & Wales. This must be done with delicacy and care but can help you better to understand how other jurisdictions resolve similar legal issues.

Questions and activities:

Part I: Domestic case law

R v Harris (1836) 7 C&P 446.
- Summarise the facts of the case.
- What issue of interpretation arose in the case?
- How did the court resolve this issue?
- What do you think might be caused by this approach to interpretation? Are these outweighed by the of such an approach?
- Should the court have gone further in order to secure ‘justice’ in this case?
R v Maginnis [1987] AC 303 (HL)
- Summarise the facts of the case.
- What issue of interpretation arose in the case?
- How did the court resolve this issue?
- What do you think might be caused by this approach to interpretation? Are these outweighed by the of such an approach?
- Should the court have gone further in order to secure ‘justice’ in this case?

Part II: Case law from other jurisdictions

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 [1920] HCA 54
- From which jurisdiction does this case originate? In which court was it heard?
- Summarise the facts of the case.
- Why might judges in England & Wales wish to consider this judgment?
- In what ways are there similarities between how this court deals with issues of interpretation and how courts in England & Wales deal with matters of interpretation?
- Does this court use the same or different terminology to that used in England & Wales in explaining its approach to statutory interpretation?
Schwegmann Bros v Calvert Distillers Corporation (1951) 341 US 384 (SC)
- From which jurisdiction does this case originate? In which court was it heard?
- Summarise the facts of the case.
- Why might judges in England & Wales wish to consider this judgment?
- In what ways are there similarities between how this court deals with issues of interpretation and how courts in England & Wales deal with matters of interpretation?

Part III: Bringing it all together

Using your knowledge gained from the statutory interpretation chapter attempt to answer the following question: “The literal rule creates more problems than it solves and blocks the valuable contribution that judges can make to the development of the law.” In particular, try to incorporate the material covered in Parts I and II of this exercise.