Statutory interpretation

Statutory interpretation is the process of interpreting and applying legislation.

In common law jurisdictions, the judiciary may apply rules of statutory interpretation to the primary legislation enacted by parliament, or to the delegated legislation, which other bodies are authorised by parliament to make. Common law countries also recognize precedent as a source of law. Rules of construction may be used to apply the provisions of legislation to a legal case.

General principles

Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty.

In certain federalist jurisdictions, for example Canada, there is a presumption that the federal government has paramount authority over certain matters, which may typically be expressed with a catch-all constitutional phrase, such as "peace, order and good governance".

The doctrine of paramount authority contrasts with other jurisdictions, notably the United States and Australia, where it is presumed that if legislation is not enacted pursuant to a specific provision of the federal constitution, the states will have authority over the relevant matter in their respective jurisdictions.

Internal and external consistency

It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The sui generis rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. For example, in Criminal Law, a statute might require a mens rea element of "unlawfully and maliciously". Whereas the word "maliciously" is well-understood, the word "unlawfully" in this context is less clear. Hence, it must be given a meaning of the "same kind" as the word of established meaning. This is particularly the case when the two or more words are conjoined, i.e. linked by the word "and", as opposed to placed in a disjunctive relationship, i.e. linked by the word "or", where the interpretation of the two or more words might be different depending on the circumstances (sometimes courts have to attribute a conjunctive intention to the legislature even though the list is disjunctive because, otherwise, no sensible overall interpretation can be ascribed).

A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation.

Expressio unius est exclusio alterius

The latin phrase expressio unius est exclusio alterius means that when given a list of things, it is intentionally to the exclusion of others.

For example, in Tempet v. Kilner 1846, it was presumed that "‘goods, wares and merchandise’" excludes "stocks and shares".

The maxim expressio unius est exclusio alterius, is, at the outset, an established source of international law as having been accepted by civilized nations. The maxim has been followed in the interpretation of treaties by international tribunals in a number of cases. The meaning of the maxim is that "express mention of one thing implies the exclusion of another". It is synonymous to the maxim expressum facit cessare tacitum, which means "expression precludes implication".

Generalia specialibus non derogant

The latin phrase generalia specialibus non derogant means that general law shall not derogate from specific law. For example, a statute on environmental law shall be given less deference than a more recent water protection act, on matters of water protection.

Illustrative versus exhaustive lists

Legislators typically indicate whether or not lists are meant to be comprehensive, or merely illustrate principles. For example, law that precedes a list with an illustrative indicator, such as the word "includes", means that the list is merely indicative of valid application. Similarly, the use of an exhaustive indicator, such as the phrase "is one of", before a list indicates that it would be inappropriate to read new elements into the list.

Presumption of primary competence

There is a presumption that primary legislation supersedes delegated legislation. The reasoning behind this is that elected representatives are conferring into law the will of the people through democratic representation.

Presumption of competence

The legislature is presumed to be competent. An interpretation that conflicts with this will be unlikely to be upheld.

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