Making and using rules
Making and using rules

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Making and using rules

5.2 Interpretive strategies

5.2.1 A literal approach

One way in which we can interpret a rule is by treating it literally. Very simply this means looking at the words which comprise the rule, and at the way in which they are put together, and applying the rule ‘as is’ to a factual situation to which it applies. An example would be: ‘Dog owners are not permitted to let their dogs off the lead in the park’. If this is applied literally, it would mean that a person who did not own a dog, but who took a friend's dog to the park, would not be bound by the rule. Similarly, a dog owner would not be bound by the rule if they let their dog off the lead before entering the park (if the rule is read literally to mean that dogs must not be let off the lead while in the park).

There are two main consequences to interpreting rules literally. First, it ensures certainty and consistency in the application of the rule. If every rule-applier interprets a particular rule literally, then it means that every case or factual situation to which that rule applies will be decided in the same way. (This assumes, of course, that each rule-applier has the same understanding of the words which comprise the rule as every other rule-applier. We will assume this for the moment.) In any system of rules, whether that be the law, arithmetic, the rules of grammar, or the rules of a game or sport, it is important that there is consistency in the application of those rules. Without some degree of certainty or consistency it would be impossible to enter into a contract, to be sure that 1 + 1 = 2, to communicate with each other, or to play football or chess.

Second, a literal approach to interpretation acknowledges the authority of the rule-creator. It recognises that the person who has formulated a rule has chosen to express it in a particular way for a particular reason. By taking a literal approach, the rule-applier may avoid the possibility of subverting the intentions of the rule-maker. One example is the concept of the Sovereignty of Parliament. Among other things, this means that, under the UK constitution, it is the job of Parliament, not the judiciary (the judges), to make laws. A literal approach to interpretation ensures that the separate and distinct functions of Parliament and the judiciary are maintained. In the context of this course, you should simply note that a literal approach has the effect of distinguishing clearly the roles of rule-maker and rule-applier, and of according a significant degree of respect and authority to the rule-maker. Judges have traditionally preferred the literal approach to interpretation because it enabled them to affirm their positions as appliers of law, rather than as creators of it.

These consequences of a literal approach may be thought of as advantages. However, the literal approach is not without its problems. These can be illustrated by the following example. Suppose there is a sign inside a shop which reads as follows:

Read literally, this rule means that any breakage, whether or not caused by the customer, must be paid for by him. This would clearly be a ridiculous interpretation, and the rule-applier, in order to avoid this, must resort to another interpretive strategy.

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