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literal rule – words must be given their grammatical meaning, EVEN IF IT PRODUCES AN UNDESIRABLE OUTCOME
golden rule – when the literal rule gives more then one meaning or PROVIDES AN ABSURD RESULT
so what is the difference from UNDESIRABLE
An undesirable result / outcome is one that was not anticipated when the action was brought by the plaintiff. Fully believing that his case was a cast-iron certainty, the application of the literal rule thwarted his ambition and produced an outcome that was not anticipated and was, therefore, undesirable
An absurd result is one that, following the application of the literal rule, arises from the unforeseen combination of circumstances
When the Representation of the Peoples Act was written, it was not foreseen that someone might try to vote in the name of a deceased person. So where the Act made it “an offence to vote in the name of someone else entitled to vote” how could the drafts persons have seen that the neighbour of a deceased man would exercise the deceased’s vote in a general election
But that’s what happened! Was the double-voter guilty? According to the literal rule, NO! Because he represented himself as his dead neighbour … and dead people are not entitled to vote so he hadn’t voted in the name of someone else entitled to vote
Well! That’s absurd (Isn’t it?)
Does that do it for you?
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First of all thank you very much for the reply
Now for the substance of the matter, I’m not sure if I understand the grammatical difference and definition between the two terms.
But what I sure do not understand, what is the logic to distinguish between the two. After all, if the law is so powerful that it works even in cases where the legislators did not intend it, then why does it not work when it becomes absurd, and vice versa?
I assume that your comment “if the law is so powerful that it works even in cases where the legislators did not intend it” refers to the ‘undesirable result’
The point about ‘undesirable result’ is not that it is undesirable for the purposes of the administration of law but that it is undesirable for the plaintiff / defendant
The strict application of the literal rule means that there is no wiggle room in interpretation for either side. “This is what the law says, and this is what it means. Like it or lump it”
However, if that literal approach leads to an absurd situation (voting on behalf of dead men) then that would be absurd and the golden rule would overtake the literal rule
The Americans are facing such an issue at the moment where ‘The 14th Amendment states that all men are equal’
The Originalists (basically the Trumpist Republicans) are claiming that the expression ‘All men are equal’ does not therefore mean that ‘all women are equal too’
And that is going to lead to some interesting sessions in the mid-term elections in the USA later this year
OK?
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Thank you very much for your answer
It all makes a lot of sense, but I’m still not clear
One of the cases brought up in the context of LITERAL RULE is the FISHER V BELL case
In the above case, is it the plaintiff that is getting the undesirable results? or is it undesirable for the purposes of the administration of law?
So far as the prosecution was concerned, this was an undesirable result
For the purposes of the administration of law, I can see nothing undesirable about it! It clarifies the distinction between an invitation and an offer – but obviously not to the satisfaction of the prosecution
In addition, the case having been decided, this in itself should prompt the Government to look again at the law and, for example, make even the ownership or possession of flick knives a crime … if that was what was intended
OK?
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Ok.
Thank you very much.
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