Article in Justice of the Peace
JPN (6 Dec 2008) 802-804
||Doc. No. 2008.031 JPN074A
Statutory Interpretation: Teaching and
Practice – Part 1
An ounce of practice is worth a ton of theory – or
is it? I have been looking into the question why many judges seem uninterested
in the theory of statutory interpretation. After all, as Murray
Gleeson, Chief Justice of Australia, says, “Whether it is described
as a science or an art, statutory interpretation is of central importance
the daily work of all judges”. I use “theory” in OED
sense 4B, namely:
“That department of an art or technical subject which consists in
the knowledge or statement of the facts on which it depends, or of its
methods, as distinguished from the practice of it”.
Consideration of this requires some investigation into legal education.
It also requires us to distinguish clearly between a theory of statutory
interpretation considered as an area of legal practice and a theory of
how to teach it, so considered.
Nowadays we expect our lawyers to have received a formal university education
in their life’s work, but it was not always so. Until William Blackstone
stood up at Oxford on 25 October 1758 to deliver his first lecture as
Vinerian Professor of English Law, that subject was not taught at the
English universities. The education of Bar students was sketchy until
1852, when the Council of Legal Education (CLE) was set up; and relied
largely on social mixing with seniors. Attorneys and solicitors learnt
on the job, often beginning as articled clerks.
When I entered the Westminster Parliamentary Counsel Office in 1953 I
received no formal instruction in legislative drafting. Again it was learnt
on the job, a tyro working in conjunction with an experienced drafter
in what Americans call the buddy system. To this day, most lawyers receive
little or no training in how to handle statutes. Lord Wilberforce, a senior
Law Lord, said extra-judicially in 1966 that statutory interpretation
is “what is nowadays popularly called a non-subject”. Lord
Reid, another distinguished Law Lord, said in that same House of Lords
“Many books are written about statutory interpretation. I always
advise young men, ‘Don’t read them’ . . .”
In the early years of many learned professions, newcomers relied on practice
rather than theory. By that I mean that they were given little or no formal
instruction but were treated as apprentices to working practitioners acting
as pupil masters. They watched the pupil master at work, helping to do
that work, gradually being given scope to work on their own, and finally
passing out as fully-fledged practitioners. Theory came into it hardly
In this a contrast developed between vocational and academic teaching.
A “non-subject” like statutory interpretation (as Lord Wilberforce
and many others regarded it) fell into the vocational rather than the
academic area of law teaching; and that is still largely the position.
Blackstone found that his novel lectures in English law became very popular,
so much so that, as he put it, “the knowledge of our laws and constitution
was adapted as a liberal science by general academical authority”. Eager students took notes of his lectures, revised and transcribed these,
and frequently lent the results to others. Blackstone describes what then
“Hence copies have been multiplied, in their nature imperfect, if
not erroneous; some of which have fallen into mercenary hands, and become
of clandestine sale. Having therefore so much reason to apprehend a surreptitious
impression, I chose rather to submit my own errors to the world, than
to seem answerable for those of other men.”
Thus the famous Commentaries came to be published in four volumes.
Blackstone spared a mere ten paragraphs in five of their pages to describe
called the rules to be observed with regard to the construction of statutes. Blackstone’s rules were among the sources which Lord Reid
in his wisdom advised young men not to read. Nevertheless many did read
them, and found them instructive as far as they went. I will now attempt
a reduced version of the ten paragraphs because it is instructive to compare
them with what is taught today. I mostly retain Blackstone’s language,
modifying it slightly where necessary for modern conditions.
1. First Blackstone gave a summary of the rule in Heydon’s Case, stating
that there were three points to be considered; the old law, the mischief,
and the remedy. “And it is the business of the judges
so to construe the Act as to suppress the mischief and advance the remedy.” He
gave the following example. By the common law ecclesiastical corporations
might let as long leases as they thought proper. The mischief was that
they granted unreasonably long leases, to the impoverishment of their
successors. The remedy applied by the statute 13 Eliz. 1 c. 10 was to
make void all leases by such corporations for longer than three lives
or twenty-one years. However this was construed as not applying to a serving
bishop or dean who granted such a lease, for the Act was made for the
benefit of successors.
2. A statute which treats of things or persons of an inferior rank cannot
by any general words be extended to those of a superior rank. So an Act
treating of “deans, prebendaries, parsons, vicars, and others having
spiritual promotion” is held not to extend to bishops even though
they have spiritual promotion.
3. Penal statutes must be construed strictly. Thus a statute 1 Edw. VI
having enacted that those who are convicted of stealing horses should
not have the benefit of clergy, the judges conceived that this did not
extend to him that should steal but one horse.
4. Statutes against frauds are to be liberally and beneficially expounded.
This may seem a contradiction to the last rule; most statutes against
frauds being in their consequence penal. But this difference is here to
be taken: where the statute acts upon the offender, and inflicts a penalty,
as the pillory or a fine, then it is to be taken strictly: but when the
statute acts upon the offence, by setting aside the fraudulent transaction,
here it is to be construed liberally.
5. One part of a statute must be so construed by another, that the whole
may if possible stand: ut res magis valeat, quam pereat.
6. A saving totally repugnant to the body of the Act is void.
7. Where the common law and a statute differ, the common law gives place
to the statute; and an old statute gives place to a new one. But this
is to be understood only where the later statute is couched in negative
terms, or by its matter necessarily implies a negative.
8. If a statute that repeals another is itself repealed afterwards, the
first statute is thereby revived without any formal words for that purpose.
9. Acts of Parliament derogatory from the power of subsequent Parliaments
bind not. Because the legislature, being in truth the sovereign power,
is always of equal, always of absolute authority: it acknowledges no superior
upon earth, which the prior legislature must have been, if its ordinances
could bind the present Parliament.
10. Lastly, Acts of Parliament that are impossible to be performed are
of no validity; and
if there arise out of them collaterally any absurd consequences, manifestly
contradictory to common reason, they are, with regard to those collateral
A striking feature of these ten precepts is that literal construction
is not spoken of. They contemplate that the judges will sidestep elements
in a statute that do not serve to remedy the mischief. Also remarkable
is that Blackstone makes no attempt to form a theory of statutory interpretation.
These are just workaday rules of thumb. There are theories aplenty scattered
in the Commentaries, but statutory interpretation is not deemed worthy
Blackstone’s Commentaries remained almost the sole prevailing work
on English law for more than a century. I have an edition published in
1876. It has Blackstone’s same ten paragraphs on statutory interpretation,
except that paragraph 8 is relegated to a footnote with a comment that
the rule in question was abrogated by a predecessor to the Interpretation
However what came to be known as the literal rule later began to flourish,
and tended to overshadow the mischief rule favoured by Blackstone.
Sir Rupert Cross
It took many years before any English academic lawyer saw the need for
a thoroughgoing theory of statutory interpretation. The name of this pioneer
was Sir Rupert Cross. A fellow of Magdalen College Oxford, he was a successor
to Blackstone in the Vinerian chair, being appointed in 1964. He was blind
from birth, and used to play chess with my own Balliol tutor Sir Theodore
Tylor, who was also of impaired sight. Both went to school at the Worcester
College for the Blind.
In 1976 Cross produced a little book titled Statutory Interpretation which ironically was dedicated to Lord Reid. The dedication runs: “To
the memory of Lord Reid, one of the great judges of the twentieth century,
to whose views on statutory interpretation this book owes so much”.
I wonder whether Lord Reid, had he lived, would have excepted Cross’s
book from those he advised young men not to read. Sadly he died in 1975.
The literal rule had obtained such a hold that it had come as a surprise
when in 1938 a Canadian academic John Willis wrote a famous article pointing
out that not only was there also a mischief rule but a so-called golden
said Willis mischievously, a court invokes “whichever
of the [three] rules produces a result which satisfies its sense of justice
in the case before it”. A disgusted Rupert Cross said that the Willis
thesis had been so persuasive “that the tendency of subsequent English
academic discussion has been to do no more than treat the cases as illustrations
of one or more of the three rules. He complained of this at length in
the preface to his book, and said:
“When reading for a law degree at Oxford in the early 1930s, I studied
jurisprudence, a subject which, then
as now, was commonly assumed to include statutory interpretation. I was
told to write an essay criticising the English rules and I dutifully said
my piece about the literalism of the Courts, their failure to implement
the purpose of the statutes with which they dealt and, worst of all, their
intransigent refusal to consult travaux préparatoires. All the
time I was experiencing a malaise which, I am bound to confess, was not
wholly set at rest by my tutor, with regard to the nature of the English
rules of interpretation. What were they? Where were they stated? I then
practised law for a decade and it was as much as I could do to make sense
of the day to day operation of the legislation that came my way . . .
When teaching law at Oxford in the 1950s and 1960s . . . [e]ach and every
pupil told me that there were three rules, the literal rule, the golden
rule and the mischief rule . . . ”
The same still applies, to a large extent. Cross confessed that he wrote
his little book of a mere 180 pages “in order to clarify my own
mind as much as anyone else’s”. He intended the book, he tells
us, both for students and practitioners. It was a start on a theoretical
treatment, but scarcely sufficient considering the extent and complexity
of the subject. I read it with great interest and took it as a challenge
to produce something more comprehensive. The first edition of my own book
with the same title was published in 1984 and ran to 904 pages. By the
fifth edition, published this year, it has grown to 1578 pages.
Gleeson CJ, “The Meaning of Legislation: Context, Purpose and Respect
for Fundamental Rights”, Victoria Law Foundation Oration, Melbourne,
31 July 2008, p. 4.
Addington Symonds, writing of the year 1864, mentions moving to London “to
eat dinners at
Lincoln’s Inn, and to make a pretence of studying law”: The Memoirs of John Addington
Symonds,ed. Phyllis Grossmith, Univ. of Chicago Press 1984, p. 150.
on Law Commission’s first annual report, HL Deb. 16 November 1966
vol. 277 cols. 266-1343.
Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press,
1st edn, 1765–1769),
3 Co. Rep. 7a.
On Heydon’s Case see Bennion on Statutory Interpretation (5th edn,
2008), s. 291
ibid., s. 387.
ibid., Pt, XVI. By statute, references to the plural now include the singular:
1978 s. 6(c).
is not featured in modern books on statutory interpretation. It is to
be distinguished from fraud
on a statute: see ibid., Pt. XXII.
ibid., s. 198.
is not featured in modern books on statutory interpretation.
ibid., p. 889.
rule has been abolished by statute: see Interpretation Act 1978 s. 15.
Bennion, ibid., s. 346.
absurdity see ibid., Pt XXI.
consequential construction see ibid., s. 286.y italics.
the commonsense construction rule see ibid., s. 197.
Commentaries “adapted to the present state of the law” by
R. M. Kerr (London: John Murray).
Butterworths. A second edition edited by John Bell and Sir George Engle
(lately first Parliamentary Counsel) was published in 1987, and a third
so edited in 1995.
Willis, “Statutory Interpretation in a Nutshell”, 16 Canadian
Bar Review (1938) 1
Op. cit., p. 169.