Understanding Common Law Legislation
Drafting and Interpretation
Bennion, F. A. R.,
Research Associate, University of Oxford Centre for Socio-Legal Studies
Print publication date: 2009
Published to Oxford Scholarship Online: September 2009 Print ISBN-13: 978-0-19-956410-1 doi:10.1093/acprof:oso/9780199564101.001.0001 |
|
|
Abstract:
This book is a distillation of a larger work Bennion on Statutory Interpretation. It consists of an introduction and eighteen chapters each summarized at the end. The common law system presented here is called the Global method both because it is worldwide and because it requires the interpreter to take every relevant consideration into account, including (under the doctrine of precedent) previous court decisions. The book starts by explaining what is meant by ‘common law legislation’. It then says that construing common law legislation has often been found difficult as an analytical concept, giving as the main reason deficiencies in legal education. One deficiency, still continuing, is to teach (mistakenly) that the interpretative criteria solely consist of the literal rule, the mischief rule, and the golden rule. The book aims to redress the deficiencies by presenting the issues briefly but correctly. There are a great many interpretative criteria, and where these conflict in a particular case there must be a judicial process of weighing and balancing. The criteria consist of four types: rules laid down by statute or common law, presumptions arising from the nature of legislation, principles of legal policy, and literary canons applying to all types of language. The book has a final chapter on techniques of ‘law handling’ or ‘law management’, which are central to any lawyer's or law student's functioning.
Keywords: common law system, Global method, common law legislation, legal education, literal rule, mischief rule, golden role Table of Contents
Introductory
1.
Basic concepts I: common law statutes; the enactment; legal meaning; factual outline and legal thrust; implied ancillary rules
2.
Basic concepts II: opposing constructions; literal, purposive and developmental interpretations
3.
Grammatical and strained meanings
4.
Consequential and rectifying constructions
5.
Contradictory enactments and updating construction
6.
Drafting techniques and the Interpretation Act
7.
Transitional provisions and the Cohen question
8.
Words in pairs
9.
Rules of interpretation
10.
Legal policy
11.
Interpretative presumptions
12.
Linguistic canons and interpretative technique
13.
The nature of judgment
14.
The nature of discretion
15.
The European Union and the HRA
16.
The jurisprudential basis of the common law method
17.
The common law system in America
18.
Techniques of law management
Chapter Summaries
Bibliography
Index
|
|
|
|
|