INTERPRETATION OF STATUTES IN COMMON LAW &

CIVIL LAW

Subject- Interpretation Of Statutes

Mid Semester Assignment

SUBMITTED_TO_

AMITY LAW SCHOOL, MUMBAI

FOR THE PART FULLFILMENT

OF

B.A. LLB._(Hons)

By

Gaurav K Choudhary

Enrolment_No._A70611120025

UNDER_THE_GUIDANCE_

Ravina Parihar Ma’am

AMITY_LAW_SCHOOL

SEMESTER_VII

ACADEMIC_YEAR:_2023-2024[Odd Semester]

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 DECLARATION BY THE STUDENT

I declare that this assignment “INTERPRETATION OF STATUTES IN COMMON LAW

AND CIVIL LAW.” is my own work completed under the supervision of Ravina Parihar
ma’am. This assignment is based on my personal study and/or research and that I have
acknowledged all material and sources used in its preparation, whether they be books, articles,
reports, lecture notes, and any other kind of document, electronic or personal communication.
I also certify that this assignment has not previously been submitted for assessment in any other
unit, except where specific permission has been granted from all unit coordinators involved, or
at any other time in this unit, and that I have not copied in part or whole or otherwise plagiarized
the work of other students and/or persons.

Date: 19th November 2023

Student name: Gaurav K Choudhary

Enrolment No.: A70611120025

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 CONTENTS

DECLARATION BY THE STUDENT ................................................................................. 2

INTRODUCTION ................................................................................................................ 4

WHAT IS COMMON LAW? ............................................................................................... 6

COMMON LAW APPROACH TO INTERPRETATION ..................................................... 6

WHAT IS CIVIL LAW? ....................................................................................................... 8

CIVIL LAW APPROACH TO INTERPRETATION ............................................................ 8

CONCLUSION ..................................................................................................................... 9

REFERENCES ................................................................................................................... 10

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INTRODUCTION

Interpretation of statutes of law which are in force are one of the most substantial and the
principal duty which are vested on the judiciary. The courts have to strictly abide by with the
boundaries framed by the legal frameworks which encompass certain laws, statues, the
constitution when the court deliver justice. The written laws are substantiated by the courts and
justice is administered by the courts through the pronouncement of verdict over the legal
dispute. For the purpose of interpreting statutes and to prevent any wrongful interpretation of
the laws, the court should follow certain laws to shape these laws. So, one of the most basic
rules of interpretation is the Literal rule of Interpretation of statutes where the court interprets
the wordings of the law as it is. However, there may be certain loopholes which may be found
in the law due to which it is not interpret a straight-forward understanding of the language of
the statutes. It may lead to ambiguity and absurdity if the courts interpret the natural meaning
of the language used in the statute.

The word Interpretation is the ascertainment of the words formally used in statutes and other
written documents where more than one meaning is possible. According to Salmond, is the
process by which the Courts seek to ascertain the meaning of the legislature thought the
medium of authoritative forms in which it is expressed.

Common law is generally uncodified. This means that there is no comprehensive compilation
of legal rules and statutes. While common law does rely on some scattered statutes, which are
legislative decisions, it is largely based on precedent, meaning the judicial decisions that have
already been made in similar cases. These precedents are maintained over time through the
records of the courts as well as historically documented in collections of case law known as
year-books and reports. The precedents to be applied in the decision of each new case are
determined by the pre-siding judge.

The purpose of the interpretation of the statute is to unlock the locks put by the Legislature.
For such unlocking, keys are to be found out. These keys may be termed as aids for
interpretation and principles of interpretation. The aids for interpretation may be divided into
two categories, namely, Internal and External.

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The Internal Aids are those which are found within the statute. They may be as follows:-

1.Long title of the statute.

2.Preamble of the statute.

3.Chapter Headings of the statute.

4.Marginal Notes to every section of statute.

5.Punctuations.

6.Illustrations given below the sections.

7.Definitions.

8.Provisos.

9.Explanation.

10.Saving Clauses and non-obstante Clauses.

External Aid for interpretation is those which are not contained in the statute but are found
elsewhere. They may be as follows:-

1.Historical background.

2.Statement of objects and reasons.

3.The original Bill as drafted and introduced.

4.Debates in the Legislature.

5.State of things at the time a particular legislation was enacted.

6.Judicial construction.

7.Legal dictionaries.

8.Commonsense.

As stated above, the Superior Courts have formulated certain principles of interpretation to find
out the real intent of.

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WHAT IS COMMON LAW?

Common law briefly is based on two institutions; Parliament as an elected power that adopts,
replaces, or repeal laws, and courts that implement and interpret the enacted laws and makes
laws where a relevant law or precedent is absent to solve a problem in a specific case. However,
when it comes to the making of law the supremacy of Parliament is undeniable and foreclosed
from discussion since the power of Parliament is to clarify or modify or replace common law
precedent and jurisprudence. The judges’ main task is to interpret the statutes utilizing the rules
of interpretation.

Unlike the civil law system, in common law system precedents outnumber statutes in many
aspects. Codifications are enacted where common law precedents need to be replaced. Once
there was not a parliament in the legal system to make statutes or law, except rules declared by
the monarch. Therefore, even if Parliament is the primary source of law, the practice does not
tell us that in many cases.

One of the two major legal systems of the modern Western world (the other is civil law), it
originated in the UK and is now followed in most English-speaking countries. Initially,
common law was founded on common sense as reflected in the social customs. Over the
centuries, it was supplanted by statute law (rules enacted by a legislative body such as a
Parliament) and clarified by the judgments of the higher courts (that set a precedent for all
courts to follow in similar cases).

These precedents are recognized, affirmed, and enforced by subsequent court decisions, thus
continually expanding the common law. In contrast to civil law (which is based on a rigid code
of rules), common law is based on broad principles. And whereas every defendant who enters
a criminal trial under civil law is presumed guilty until proven innocent, under common law he
or she is presumed innocent until proven guilty.

COMMON LAW APPROACH TO INTERPRETATION

In common law countries the three foundational principles of interpretation, are literal
interpretation, the golden and the mischief rule. The basic task of the Judge is to ascertain the
intention of the legislature. The literal rule of interpretation is that that the intention of the
legislature must be found in the very words and sentences of the statute. The technique followed
in the work of interpretation in all the common law countries is almost the same. Similar
principal procedure and the method in the interpretation and construction of statute.

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In addition to the three major rules associated with statutes with interpretation, there are also a
number of other rules of interpretations to help the Judges in their task of interpretation. One
of the important rules of interpretation is that the words of the statute must be taken in their
context. A word in itself has no absolute meaning; its meaning must be ascertained by reading
the statute as a whole. The meaning of the word is relative to the context. Every section should
be interpreted in the light of other sections particularly of its interpretation clause, if so given
in the Act.

Further there are certain presumptions to assist the Judges in their task of interpretation. Such
presumptions are as follow:

1. All the statutes enacted by legislature are presumed to be valid. However, in

Bangladesh, India and U.S.A by virtue of their written constitutions the court can
declare a statute of its portion ultra virus or invalid;

2. The statutes are always territorial in operation, unless otherwise so expressed;

3. The statutes are presumed to be in conformity with international law;

4. The legislature is an idea person and as such it is presumed that it does not commit a
mistake;

5. No change in the exiting law is presumed beyond that expressly stated in the
legislation;

6. Legislation is not intended to apply retrospectively unless this expressly stated

therein;

7. The crown is not bound unless the Act specifically makes it to do so;
8. There is a presumption against the imposition of liability without fault in criminal
cases. Thus, any liability for a criminal offence must be on the basis of fault, unless
the words of a statute intend otherwise.
9. Unless otherwise so provided, there is a presumption that the statute deprives a person
of a right vested in him before the commencement of the statute.

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WHAT IS CIVIL LAW?

The term Civil Law refers to a legal family that organically emerged from the
European Continent, starting during the Roman Empire. It was not until the 19 th Century,
however, that this body of law was assembled, organized, and distributed across the
continent. France and Germany are considered to be prime examples of this codification
effort. In the 20th century a number of elaborations were made to these laws, producing the
Civil Law most know today. This term for a particular legal family is not to be confused
with the use of the term “civil law” to describe the laws and procedures governing a case in
controversy between private litigants.

CIVIL LAW APPROACH TO INTERPRETATION

The characteristic features of civil law system reflect a distinct technique and method of
interpretation as compared with common law system. In civil law countries because of
the supremacy of code and other statutory law, the courts are more concerned with the
analysis of textual formulation and elaboration of the rules rather than to construe them
in literal sense. The method of interpretation has geographical variations too and differs
from one branch of law to another and from one country to another. The civil law
approach towards the interpretation is based on logical reasoning given in various
theories and schools recommended in their countries by various writers and jurists.
(a) Free lays Theory:
The exponent of this theory was Ehrlich, who advocated the use of free hand by the
Judges in the interpretation of law. The Judge should be given power even to change
statute where the results of literal interpretation are absurd and unjust. According to this
theory, “a judge is invested with the widest powers in dealing with the language of the
statute.
(b) Social Purpose Theory:
This theory is based on the proposition that the law written law must be considered a
sociological phenomenon rather than the will of a given legislator. The judge must adopt
that meaning which accords most closely with the social and economic purposes of the
statue.

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 This theory is defective, because it givens wide power to the judge. Under the garb of
social purpose, they would not give such interpretation as required by them. This will
have serious consequence in their work of administration of justice.
(c) Grammatical and Legal Interpretation:

Grammatical Interpretations:

• It is also called “Literal Interpretation”.

• It depends upon the ‘letter’ of enacted law.
• It interprets only the ‘verbal expression of the law’. It does not go beyond the ‘literal
legist’.
• In grammatical interpretation, the words are construed according to the popular or
dictionary meaning of the term. It gives the plain sense.
• Grammatical interpretations are used frequently in courts.
Logical Interpretations:
• It is also called “Functional Interpretation”.
• It depends upon the ‘spirit’ of enacted law.
• It looks beyond upon the ‘literal legist’. It seeks elsewhere for some other and more
satisfactory evidence of the true intention of the legislature.
• Where grammatical interpretation fails, in such cases the ‘sentential legist’ may be
ascertained from other factors.
• Rarely, it is used.

CONCLUSION

The common law and civil law approaches to advocacy and proof will ever fuse into a single
set of procedures for international arbitration. Nor is it desirable that they should. One of the
great strengths of arbitration is its procedural flexibility, which permits the process to be
tailored to the particular needs of each case. What is emerging is rather a consensus as to a
range of procedural options available to the arbitrators and the advocates in each proceeding.
While not every procedure in that range will be accepted in or is suitable for every arbitration,
there is increasingly widespread acceptance of this range as defining a set of procedures that
are unlikely to be challenged as unacceptable or unfair by parties from either side of the
increasingly less divisive common law civil law divide.

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REFERENCES

 Classroom notes
 https://www.lexisnexis.in/blogs/interpretation-of-statutes
 Jefferson B. Fordham and J. Russell Leach, Interpretation of Statutes in Derogation of
the Common Law, 3 Vanderbilt Law Review 438 (1950

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