10 Dec 2010

The golden rule

Before continuing with how laws are made, I am – for the sake of avoiding confusion – explain a little how laws are interpreted. By explaining this now, I hope readers get a clearer idea on what happens when laws are unclear. This way, if I use examples later on, and some thought comes to the reader’s mind that the law ‘doesn’t make sense’, s/he would remember this explanation and hopefully clarify the situation.

The golden rule

Where the meaning of words in a statute, if strictly applied, would lead to an absurdity, the golden rule is that the courts are entitled to assume that Parliament did not intend such absurdity, and they will construe the Act to give it the meaning which Parliament intended.

So, for example, the Offences Against the Person Act 1861 provided that ‘whosoever being married shall marry another person during the life of the former husband or wife’ is guilty of bigamy.

Interpreted literally, this definition is absurd on two counts.

First, the phrase ‘shall marry another person’ is meaningless in the context, as the essence of bigamy is that a married person cannot marry again while his first marriage subsists.

Secondly, the reference to a ‘former’ husband or wife is quite inappropriate.

The word ‘former’ suggests that the original marriage no longer exists, but if that were the case the person marrying again would not be guilty of bigamy.

Despite the slipshod draftsmanship of the Act, however, the intention was clear, and the courts have interpreted the relevant section as meaning that a person who purports to marry another while his or wife or husband is still alive is guilty of bigamy.


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