Advantages And Disadvantages

Question 0

What are the disadvantages of the literal rule?

Answer 0

• it can result in absurd results parliament could not have intended
• can lead to unjust results - Berriman case
• words can have more than one meaning- therefore it’s impossible to apply eg. R v. Allen - “marry”
• law commission v. Critical -requires “unobtainable perfection in draftsmanship”
• v. Inflexible - cannot develop with changes in language - have to apply old meanings of words - eg. Dpp v. Cheeseman - “passenger”

Question 1

What are the advantages of the literal rule?

Answer 1

• it upholds parliamentary supremacy
• prevents unelected judges fabricating law based on what they believe parliament was trying to achieve. This would be undemocratic and could result in bias
• if there is an absurd result, the literal rule indicates the gap in the law to parliament so it can be amended eg fisher v. Bell - flick knives

Question 2

What are the advantages of the golden rule?

Answer 2

• more flexible - courts can avoid absurd results, the narrow approach meaning judges are not making a new offence eg. R v. Allen
• respects parliamentary supremacy when applied narrowly - still words of law
• can avoid injustice the literal rule can cause: eg R v. Sigsworth

Question 3

What are the disadvantages of the golden rule?

Answer 3

• the wide approach goes against parliamentary supremacy by refusing to apply an act of parliament
• there is no clear definition of what ‘absurd’ means so different judges will apply the law different or use different rules. This lead to inconsistency in the law
• Michael Zander calls the GR a ‘feeble parachute’ as it has limited use so cannot be relied on to prevent injustice. Eg. Berriman case
• the law commission say it is a less clear version of the mischief rule - no clear guidelines on what ‘absurd’ means

Question 4

What are the advantages of the mischief rule?

Answer 4

• it prevents absurd or unjust results eg. Corkery v. Carpenter
• it outlines gaps in the law so parliament can amend it
• it carries out the intention of parliament
• allows the law to develop and change with technology + society eg. Royal College of Nursing v. DHSS

Question 5

What are the disadvantages of the mischief rule?

Answer 5

• it undermines parliamentary supremacy by not going by the exact words of parliament and creating a new offence not illegalised used by parliament
• judges are not democratically elected so should not interpret the law - may lead to biased result eg. DPP v. Bull
• it is not a permanent fix - the law is still the same so the same thing could happen again
• long process finding out parliament’s intentions