Literal / Golden / Mischief Rules
Literal Rule
The literal rule is the primary rule which takes precedence over the others.
Words and phrases should be construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation should be applied.
If, applying this rule, a clear meaning appears, then this must be applied, and the courts will not inquire whether what the statute says represents the intention of the legislature: ‘The intention of Parliament is not to be judged by what is in its mind, but by the expression of that mind in the statute itself’.
The literal rule is strongly criticised by many lawyers. It has been said to be ‘….a rule against using intelligence in understanding language. Anyone who in ordinary life interpreted words literally, being indifferent to what the speaker or writer meant, would be regarded as a pedant, a mischief-maker or an idiot’. Such criticism, it is submitted, is misguided. For example, the Hotel Proprietors Act 1956 provides that in certain circumstances an hotel proprietor is liable for loss of or damage to guests’ property, but that this liability does not usually extend to guests’ motor vehicles or property left ‘therein’. The question arises – is the hotel proprietor liable for property left on, rather than in, a vehicle, for example, on a roof rack. On a literal interpretation, the hotel proprietor is liable, because if Parliament had intended to exclude property left on a vehicle, the Act would have said ‘therein or thereon’. The ‘common-sense’ school would say that it is ridiculous to make a distinction between property left in or on a vehicle. That may be so in the admittedly trivial example given, but if this line of argument is accepted, it means that the courts would have power to rewrite Acts of Parliament, which many people would consider to be highly dangerous, particularly where it takes the form of assuming that Parliament ‘intended’ something, when in truth it is more than likely that Parliament never gave that
The literal rule is the primary rule which takes precedence over the others.
Words and phrases should be construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation should be applied.
If, applying this rule, a clear meaning appears, then this must be applied, and the courts will not inquire whether what the statute says represents the intention of the legislature: ‘The intention of Parliament is not to be judged by what is in its mind, but by the expression of that mind in the statute itself’.
The literal rule is strongly criticised by many lawyers. It has been said to be ‘….a rule against using intelligence in understanding language. Anyone who in ordinary life interpreted words literally, being indifferent to what the speaker or writer meant, would be regarded as a pedant, a mischief-maker or an idiot’. Such criticism, it is submitted, is misguided. For example, the Hotel Proprietors Act 1956 provides that in certain circumstances an hotel proprietor is liable for loss of or damage to guests’ property, but that this liability does not usually extend to guests’ motor vehicles or property left ‘therein’. The question arises – is the hotel proprietor liable for property left on, rather than in, a vehicle, for example, on a roof rack. On a literal interpretation, the hotel proprietor is liable, because if Parliament had intended to exclude property left on a vehicle, the Act would have said ‘therein or thereon’. The ‘common-sense’ school would say that it is ridiculous to make a distinction between property left in or on a vehicle. That may be so in the admittedly trivial example given, but if this line of argument is accepted, it means that the courts would have power to rewrite Acts of Parliament, which many people would consider to be highly dangerous, particularly where it takes the form of assuming that Parliament ‘intended’ something, when in truth it is more than likely that Parliament never gave that