Mock Exam pre midday
- Created by: itsbella99
- Created on: 19-05-17 09:57
Describe the literal rule using source A and oyur own knowledge
The literal, as advocated by Lord Esher is to apply the law literally, even if it leads to a manifest absurdity. The idea of applying the words of an act in their most literal meaning stems from the tradition of Parliamentary sovereignty and how Parliament are supposed to be the supreme law making body and "it is not for the judges to make the law but to simply apply it".
Source A referrences the case of grey v Pearson and the rules of using the Golden Rule and it is stated that the golden rule must only be applied if applying the literal rule would lead to absolute absurdity and it is not for the judge to go any further. However there have been numerous older cases where the literal has been applied and it has produced absurdity.
This is seen in the case of Whiteley v Chappel where the defendant impersonated a dead man in order to vote twice. The act at this time had not covered this breach of law and the defendant was able to get away with the crime committed. Other absurd cases involving the literal rule is the case of R v Harris and Fisher v Bell.
A common link between the absurd application of the literal and all these cases are the times at which these cases were trialled, all these cases are older and were heard before the use of the golden rule was bought about. Perhaps it was because of this that the judges simply had no other choice but to apply the literal as there was no golden rule, mischief rule or purposive approach that existed at that time.
A positive advantage however of the literal rule is its simplicity and how consistent it is. This rule gives insight to citizens who need to know the law, maye due to their profession or they are involved in the case, exactly how the law is going to be applied. This creates a strong system of justice where judges are not swayed by their own judicial law making and the law is upheld to be consistent, clear and simple.
Following on from this advantage, another advantage is that it respects parliamentary sovereignty. The fundamental doctrine that states that parliament is the supreme law making body and as stated, it is not for the judges to make the law but to merely apply it. This rule ultimately respects the will of parliament and their supremacy significantly moreso than any other, and its will to follow tradition makes it immediately more respected.
However an obvious disadvantage that has arisen from following this rule is the absurd and unjust outcomes. Activating the golden rule under definition is not always easy and in certain situations parliament are left with no choice but to follow the literal rule, alike in the case that i have mentioned, Fisher v Bell, R v Harris. Producing unjust outcomes is not…
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