The Role of Statutes in Common Law Jurisdictions

Slide 1December 26, 2012 Statutory Construction

Common Law Statutes

The Role of Statutesin

English and American Law


The Relationship Between Statutes and Case Law






Parliamentary SovereigntyWhen statutes and case law conflict, statutes will be followed.This has been the rule since the Glorious Revolution (1688)

House of Commons, ca. 1710


Parliamentary SovereigntyParliament can make laws concerning anything.No Parliament can bind a future parliament.A valid Act of Parliament cannot be questioned by the court.

Parliament is the supreme lawmaker.NOTE – EU law complicates this.


Modern ExamplesHouse of Lords ruled that the Crown (government) must compensate oil companies for certain losses sustained during WWII.Parliament passed the War Damage Act 1965, saying that the Crown was not, and never had been, liable for such.


Modern ExamplesA challenge was launched in court against the legitimacy of the British Railway Act 1968.The claim was supporters of the Act mislead Parliament.House of Lords ruled they had no jurisdiction to hear such claim.


The American ModelCongressional sovereignty exists, but it is limited by the Constitution!

Congress has defined powerThe Courts can determine whether has exceeded this power or violated the Constitution.


Types of Legislation (UK)Primary

Acts of Parliamentsometimes referred to as general acts.these are subject to overriding legislation of the EU.Further Classification:

Public

Private

Local

Secondarysometimes referred to as delegated legislation.includes rules, orders, regulations and byelaws created by subordinate bodies of government under powers delegated to it by Parliament.


Reading Acts of Parliament

see http://denning.law.ox.ac.uk/lrsp/overview/legislation.php#types


Types of Legislation (US)Bills

become law after passage by both Houses and signed by President.Can be temporary or permanent.

Rule/Regulationscreated by agencies

Resolutionsdo not have the force of law.used to express opinion of Congress or delegate power to President.Can also be used to start Constitutional Amendments.


Act of Congress An Act To define and protect the institution of marriage. Sept. 21, 1996 [H.R. 3396]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: Defense of Marriage Act.

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Defense of Marriage Act''.

SEC. 2. POWERS RESERVED TO THE STATES.

(a) In General.Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:

bill that started processPreamble

shows how Act should be integrated into US Code


Organization of Statutesalphabetical by subject matter


Role of Judges in the SystemInterpret statutesCreate case law in areas not regulated by statute

Role of LegislatureCreate rules in any area it want

Even in areas traditionally dominated by case law!

“the codification of the law”

Revise rules that have been “improperly” interpreted by the courts.

“legislative overruling”

Cooperative Interplay


Codification of the LawPrior to 1952, commercial contract law was dominated by case law.Passage of the Uniform Commercial Code codified much of the case law in this area AND changed some it.Case law is still used in commercial contract law where the U.C.C. is silent.


Legislative OverrulingSpecifically reject and change a common law rule.

Example – common law rule was assumption of risk barred negligence claim. Many legislatures have replaced this rule with comparative negligence.

Specifically reject a court's interpretation of a statute.


UK: Law of Property (Miscellaneous Provisions) Act 1989 (c. 34)

“3. The rule of law known as the rule in Bain v. Fothergill is abolished in relation to contracts made after this section comes into force.”

Legislative Overruling


California, USA: California Civil Code

§ 1714 (a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.(b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court (1978) 21 Cal. 3d 144 and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.(c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.

Legislative Overruling


Statutory Interpretation

Rules and Canons of Interpretation

“[I]n the field of statutory construction …, there are 'correct,' unchallengeable rules of 'how to read' which lead in happily variant directions.”

Karl N. Llewellyn


Common Rules of Interpretation

Literal/Plain Meaning RuleHistorical Rule/Original IntentGolden Rule/Soft Plain Meaning RuleMischief Rule (U.K. only)Purposive/Functional Rule

Whole Act Rule


The court does not ask what the legislation might be intended to say, just what it actually says.What is the literal and ordinary meaning of the words used?

Literal (Plain Meaning) Rule


Pros/Cons of Literal RuleEncourages precisionRespects legislaturePrevents judges from rewriting lawOther approaches make it difficult to predict outcomes.

Ignores wider contextAssumes perfectionIgnores limits of languageCan lead to absurd or harsh results.


Historical Ruleoriginal intent, intentionalism

Taking into consideration all circumstances at the time of the creation of the statute, the court determines what the legislators intended with their actual words.What did the original legislators intend with the words that they used?

use of legislative history. Pepper v Hart [1993]


Golden RuleIf the words used are ambiguous the court should adopt an interpretation which avoids an absurd result.

ProsAvoids absurd resultsAvoids harsh results

ConsNo clear test for absurdity/harshnessAllow judges to rewrite statutes


The interpretation should aim to remedy the “mischief” that the statute itself aimed to remedy.Gives judges power to “discover” Parliament's intentions.

used when legislature passes law to remedy common law defect.some argue that this undermines Parliament's supremacy.

Mischief Rule


The court tries to find the purpose of the legislation, rather than just looking at the words used.What is the general underlying purpose of the statute?

employed in interpreting European law

Functional Approach


The Whole Act Rule

When interpreting a statute, a court should construe particular statutory provisions in light of the statute as a whole Court will look particularly to:

TitlePreamble


Example


CanonsWhat is a canon?

A wise saying backed by experience and intuition.Not law, not binding, but more significant than mere cliché.Something between homespun saying and general truths of math or science.


ejusdem generistreating items "of the same kind" together

Noscitur a sociis known from associates

expressio unius est exclusio alterius "the expression of one thing is the exclusion of another"

Strict Construction

Canons of Construction


treating items "of the same kind" togetherWhen a list of specific items belonging to the same class is followed by general words, the general words are to be taken as referring only to those things of the same class as specifically mentioned E.g., ‘cats and dogs’ does not include wild animals.

Ejusdem Generis


Noscitur a sociis A word will be interpreted in the context of surrounding words.Example:

Foster v Diphwys Casson (1887) 18 QBD 428, involved a statute which stated that explosives taken into a mine must be in a "case or canister". Here the defendant used a cloth bag. The courts had to consider whether a cloth bag was within the definition. Under noscitur a sociis, it was held that the bag could not have been within the statutory definition, because parliament's intention was referring to a case or container of the same strength as a canister.


the expression of one thing is the exclusion of anotherWhen a list of specific items is not followed by general words, it should be taken as exhaustive.

expressio unius est exclusio alterius


Interpreting Law That Changes Common Law

Classic Rule/CanonStatutes in derogation of the common law will not be extended by construction.

Also called Strict Construction

Liberal Rule/CanonSuch acts will be liberally construed if their nature is remedial.


A statute in derogation of the common law is to be strictly construed.California Civil Code § 4. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice. [1872]

Strict Construction


Statutory Interpretation

EXAMPLE


Church of the Holy Trinity v. United States

Holy Trinity Church (in the US) hires UK minister.At the time, such employment contracts were illegal under US law (23 Stat. 332):

prohibits any "...person, company, partnership, or corporation, in any manner whatsoever to prepay the transportation, or in any way assist or encourage the importation (of) ... any foreigner ... into the United States... under contract or agreement... to perform labor or service of any kind in the United States..."EXCEPTION: but not actors, artists, lecturers, or domestic servants.

Holy Trinity was a very wealthy church and the minister was to be quite highly paid.ISSUE: Did Church violate the law?


Literal ReadingNo employment of any kind with limited exceptions.COURT: "We cannot think Congress intended to denounce with penalties a transaction like that in the present case."Court searches for “true” intent.

Soft Plain Meaning Rule, Purposive Approach


Using Rules to Find IntentWhole Act Rule

title of Act:"An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories, and the District of Columbia."

COURT = this show Congress intended to apply this only to manual labor.

Legislative HistoryCommittee report indicated word “manual” was considered as amendment but deemed not necessary.


expressio unius?Except for “professional actors, artists, lecturers, singers, and domestic servants.”Why not limit it to the list using this rule?

Documents

The Role of Statutes in Common Law Jurisdictions