Making and using rules
Making and using rules

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Making and using rules

5.2.3 Looking at the intention of the rule-maker

To resolve these problems, a rule-applier may adopt a yet broader interpretive strategy. This involves attempting to work out what the intention of the rule-maker was when the rule was formulated. In other words, it means going beyond or outside the language of the rule itself. In the context of a statute (i.e. an Act of Parliament), this may involve the rule-applier (the judge) looking at the law that existed before the statute was enacted and working out what the problem with that law was that the new rule was intended to resolve. The judge may also, in very limited circumstances, look for evidence of the purpose of the rule in the language of the government minister when the rule was introduced for debate in Parliament. The judge may then interpret the new rule so that it does resolve the problem as was intended.

The purpose of the next activity is to provide you with an opportunity to think about how we can establish the meaning of a rule that is ambiguous.

Activity 6 Finding the rule-maker's intention

0 hours 5 minutes

Taking the example of the rule set out above (‘Customers must handle glasses with care in case of breakage’), how would you try to determine the intention of the rule-maker?

Discussion

You might have thought of the following:

  • Ask the rule-maker to explain what the rule meant, using different language.

  • Ask the rule-maker why this particular language was used.

  • Give the rule-maker a range of hypothetical situations, such as those set out above, and ask which ones were supposed to be covered by the rule.

  • Use your own experience and common sense to work out what the rule must mean.

  • Find out whether there was a previous rule, and see how this one differs from that.

All these are perfectly reasonable solutions, and you may have thought of others. However, it is rarely possible to do these things, since we often only have the language of the rule itself to go on. It is also potentially problematic, especially if we use our own experience and common sense, since this experience and common sense may differ from other people's. This, in turn, might lead to each person who had to apply the rule coming to a different interpretation from every one else, and those who were subject to these different interpretations (the potential rule-breakers) believing that they had been treated inconsistently and unfairly.

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