6.2 Applying other people's rules
The process of interpretation is very closely related to that of application. The reason is simple – before applying a rule, the person applying it must interpret it to see whether the conduct in question is one to which the rule applies. Sometimes this will be straightforward, and sometimes not, as will be seen in Activity 7. The purpose of this activity is to provide you with an opportunity to explore the different ways in which rules formulated by others might be interpreted by those to whom they apply.
We are returning to Mrs Biggs's garden. Let's suppose that Mrs Biggs has given up on making her own rules. Instead, she adopts a set of rules devised and made available by her local gardening association. She assumes that they will be more effective because they have been formulated by people with greater experience of the problems associated with visitors, and reflect a well thought-through policy. In order to take advantage of these rules, Mrs Biggs is required to ensure that they are enforced. This means that she has to apply them. As the Chair of the gardening association explains to her: ‘We want to ensure that visitors to each garden are treated equally. It would never do if some garden owners were too lax and others too strict.’ The association's rules are shown in Box 6.
Box 6 Standard Rules for Visitors to Gardens Participating in the Open Garden Scheme
These Rules apply to visitors to gardens participating in the Open Garden Scheme.
Visitors to gardens participating in the Open Garden Scheme should remember that they are the guests of those who make their gardens available and treat those gardens with appropriate respect.
No visitor to a garden is permitted to do anything in the garden which may be construed as interference with the enjoyment of the garden either by
(a) the owner of the garden; or
(b) other visitors to the garden
and the meaning of ‘interference’ shall be interpreted in accordance with the meaning set out in Clause 5 of these Rules.
Interference with the enjoyment of the garden by a visitor shall result in that visitor being required to leave the garden.
In these Rules ‘interference’ includes, but shall not be limited to, any of the following activities:
picking flowers, fruit, vegetables, herbs or any other plant in the garden;
taking cuttings from any plant in the garden;
The first thing you may notice about these rules is how much more formal they are. In contrast to Mrs Biggs's own rules, they are written in much more ‘legalistic’ language. Some people use the term ‘legalistic’ to describe language which is specific and certain, while others – perhaps you! – use it disparagingly to describe language that is unnecessarily complicated. This activity is designed to establish how clear the rules actually are.
Activity 7 Standard rules
Based only on your understanding of them, answer the questions below. Remember that Mrs Biggs has a number of different interpretive strategies at her disposal. For the purposes of this activity I would like you to state, in respect of each of your answers, whether adopting a literal strategy to interpretation would result in a different outcome from adopting an approach which avoids absurdity. (You may wish to remind yourself of the meanings of these terms, which are discussed above in Part D.)
To whom do the rules apply?
David, the postal worker, arrives to deliver a letter to Mrs Biggs. Do the rules apply to him?
Ali wants to visit the garden the day after the Open Garden Scheme finishes. Mrs Biggs lets him in as a favour. Do the rules apply to him?
Mrs Biggs is annoyed by a visiting family having a very loud argument. Can she require them to leave the garden?
Mr Smith, Mrs Biggs's neighbour, is annoyed by the same argument. Can he demand that Mrs Biggs require them to leave the garden?
Sarah, a visitor, plants some bulbs in one of Mrs Biggs's flowerbeds. Can Mrs Biggs require her to leave?
James, an accomplished violinist, starts playing some very beautiful music, which Mrs Biggs thinks is a wonderful addition to the visitor experience. Must she require him to leave the garden?
Visitors to the gardens participating in the Open Garden Scheme
The key question is: is David a visitor? On a literal interpretation of the rule it could be argued that he is ‘a visitor to a garden participating in the Open Garden Scheme’. He is visiting such a garden, though not to visit the garden as such. To draw the opposite conclusion you would have to argue that it would be absurd if everyone who came through Mrs Biggs's gate was subject to the rules.
The rules only apply to visitors to gardens participating in the Open Garden Scheme. On a literal interpretation you could argue that gardens ‘participating in’ the Open Garden Scheme include those that have participated; but that would be a strained, and possibly absurd, interpretation.
Yes, on any interpretation. Although Clause 5 does not include having an argument or making a loud noise in the list of things which constitute interference, it specifically says that the list is not limited to these things. Furthermore, they may be said to have broken Clause 2 by not showing respect, and Clause 3, because their conduct could be construed as interfering with the enjoyment of the garden both by Mrs Biggs and the other visitors.
No. The rules on expulsion only apply if Mrs Biggs or the other visitors have their enjoyment of the garden interfered with. It would be different if Clause 3 had been more widely drafted to include those in neighbouring gardens.
This depends on whether planting bulbs amounts to interference with enjoyment of the garden. We have seen that Clause 5 allows for some latitude in this matter, so if Mrs Biggs thinks that planting bulbs amounts to interference she can require Sarah to leave.
If the rules are read literally, yes. Mrs Biggs is required to ask someone to leave the garden who is playing music, even though she likes it. This is because the list in Clause 5 specifically states that music amounts to interference. To avoid this absurdity, the rules would have to be interpreted in such a way that interference was only interference if it was experienced as interference!