² ‘On the continent …the words of legislation are considered approximate. They do not have to mean what they say, even if what they say in clear. They are mere a starting point for flights by the judges’, Far Bennion Statute Law (3rd edn Longman Harlow 1990) 83 (V-1308 n 46).

³ The meaning of this German term equates approximately to the phrase expression unious est exclusion alterius.

⁴ Fikentscher, WMethoden des Rechts in vergleichender Darstellung, vol 2, Angloamerikanischer Rechtskreis (Mohr Siebeck Tübingen 1975) 117 (V-6 n 27).Google Scholar

⁵ These are: (1) divergent views on what amounts to law account for differences in statutory interpretation (V-11–12, 1308–17); (2) since Britain's accession to the European Communities, English courts have been adopting European methods under the impact of European community law (V-13.14, 1317–25); (3) the traditional English method of literal interpretation is inferior to the more sophisticated European way (V-14–15, V-1325–32).

⁶ H Rackham (tr) Aristotle The Nicomachean Ethics (3rd edn Heinemann London 1962) 315 and 317. Much the same argument was later put forward by other civilian writers like St Thomas Aquinas and Christopher St Germain (V-771).

⁷ Freese, JH (tr) Aristotle The ‘Art’ of Rhetoric (Heinemann London 1959) 145 and 147.Google Scholar

⁸ ibid 147.

⁹ One of the stock examples was a law requiring the return of deposited objects. Contrary to its wording, there was said to be no obligation to return a sword to a madman or a revolutionary.

¹⁰ Ubi lex non distinguit, nec nos distinguere debemus (V-530 n 740, V-527).

¹¹ Verba generalia generaliter sunt intelligenda (V-531 n 745); Bennion treats this maxim, to be found in Coke's Institutes, as part of the common law, though in the limited context of the dele- gation of legislative power—FAR Bennion Statutory Interpretation. A Code (4th edn Butterworths London 2002) 1001 and n 3.

¹² ‘A general statement must be understood in a general sense’ (generale dictum generaliter est intelligendum); ‘A statute speaking in general terms is to be understood in a general sense’ (Lex generaliter loquens, generaliter intelligenda). The sources for these statements are to be found in V-530–1 nn 738–53.

¹³ A Treatise Concerning Statutes, or Acts of Parliament: And the Exposition Thereof (printed for Richard Tonson London 1677) 41–2.

¹⁴ ibid 43.

¹⁵ ibid 66–7.

¹⁶ ‘Grammatical’ is being used here in the sense of ‘literal, irrespective of considerations other than the rules of grammar’—one of the meanings given in the OED.

¹⁷ ‘The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law’, W Blackstone Commentaries of the Laws of England vol 1 (A Facsimile of the First Edition of 1765 University of Chicago Chicago 1979) 59.

¹⁸ The juxtaposition is as follows: (1) the legislative language, in particular its grammatical implications (Vogenauer)—the words (Blackstone); (2) the genesis of the statute (V)—the legis lator's intention at the time when the law was made (B); (3) the context within the particular statute and within the legal system as a whole (V)—the context (B); (4) the purpose of the statute (V)—the spirit and reason of the law (B); (5) any extra-legal values which might have a bearing on it (V)—the effects and consequence (B). The concepts listed under (2), though related, are obviously not identical.

¹⁹ Bennion A Code (n 11) 382–404.

²⁰ Cum in verbis nulla ambiguitas est, non debet admitti voluntatis quaestio. Dig 32, 25, 1 (V- 466 n 279). As Vogenauer says (V-818): ‘According to the literal rule, the grammatical element is bound to take precedence over all other interpretative criteria.’

²¹ German courts have endorsed what they call the ‘Eindeutigkeitsregel’ (single meaning rule). In 1963 the German Constitutional Court stated (V-52): ‘There is scope for interpretation only when there is doubt about the meaning of the words; that is not the case here. Rather, the legislator has made an unambiguous determination by which the Court is bound.’ When a French judge encounters an ‘acte clair’, French jurisprudence commits that judge to apply it without speculating about intention. As Raymond Odent, a former President of the Conseil d'État, has explained (V-249): ‘When a text is clear, ie when its meaning according to all grammatical, semantic and syntactic rules cannot be subject to any doubt …the administrative judge must not surrender to any interpretative fantasies. He strictly applies the words.’

²² ‘When interpreting a declaration of intention, one must ascertain the true will rather than cling to the literal meaning of the terms’ (BGB § 133); see also Code Civil Art 1156.

²³ Hornsey Local Board v Monarch Investment Building Society (1889) 24 QBD 1, 5 (V-875 n 632).

²⁴ To similar effect is the following 1958 statement by the German Federal Social Welfare Court (V-152): ‘The fewer the doubts which arise on a literal reading of the wording of a provision, the more weighty must be the reasons which result from other relevant considerations, if they are to justify an interpretation which runs counter to usual linguistic usage.’

²⁵ Chorlton v Lings (1868) LR 4 CP 374, 387.

²⁶ ‘Statutory Interpretation: Identifying the Linguistic Register’: (1999) 4 Newcastle L Rev 1; see also Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSW LRep 548, 577–8 (Spigelman CJ).

²⁷ [1920] 1 KB 773 (V-812).

²⁸ One example is Viscountess Rhondda's Claim [1922] 2 AC 33, a decision of the Committee for Privileges of the House of Lords.

²⁹ Jones v DPP [1962] AC 635, 662 (V-1004 n 308). Vogenauer mentions the very similar observation by G Hufeland, a civil lawyer, who stated in 1815 that interpretation can ‘never go beyond the possible meaning of the legislative words; otherwise it can no longer be called interpretation’ (V-502 n 543).

³⁰ ‘The legitimate questions for a judge in his role as interpreter of the enacted law are: ‘How has Parliament by the words it has used in the statute to express its intentions, defined the cate- gory of acts that [are meant to be within the scope of the statute]?’ ‘Do the acts done in this particular case fall within that description?’—Duport Steels Ltd v Sirs [1980] 1 WLR 142, 158 (Lord Diplock). Lord Scarman suggested that the courts' duty to obey the words of a statute possesses constitutional status—ibid 168 (V-1144).

³¹ Vogenauer refers to passages in the Corpus Juris which made the analogical application of imperial legislation obligatory (V-491 n 452).

³² V-501–2.

³³ Troper, M, Grzegorczyk, C, and Gardies, JL ‘Statutory Interpretation in France’ in DN, MacCormick and RS, Summers (eds) Interpreting Statutes. A Comparative Study (Dartmouth Aldershot Hants 1991) 171Google ScholarAlexy, R and Dreier, R ‘Statutory Interpretation in the Federal Republic of Germany’, ibid 73.Google Scholar

³⁴ According to Vogenauer, the first German scholar to have drawn a sharp distinction between extensive interpretation and analogical application was Friedrich Carl von Savigny (V-501–2).

³⁵ As Lord Wensleydale said in Grey v Pearson (1857) 6 HLC 61, 106: ‘the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some …repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that …inconsistency, but no farther.’

³⁶ This could not have been endorsed more effectively than by May LJ's dictum: ‘on modern principles of construction it is clearly legitimate to adopt a purposive approach and to hold that a statutory provision does apply to a given situation when it was clearly intended to do so, even though it may not so apply on its strict literal interpretation …’, R v Broadcasting Complaints Commission, ex parte Owen [1985] QB 1153, 1174 (V-59).

³⁷ [1964] 2 QB 7.

³⁸ Pearce, DC and Geddes, RSStatutory Interpretation in Australia (5th ednButterworths Chatswood NSW 2001) [2.4].Google Scholar

³⁹ Bennion A Code (n 11) 3–4.

⁴⁰ V-1047 nn 539 and 540.

⁴¹ Enneccerus, L and Nipperdey, HCAllgemeiner Teil des Bürgerlichen Rechts (15th ednMohr Siebeck Tübingen 1959) 340 distinguish between two kinds of analogy: Gesetzesanalogie (the analogous application of individual statutory provisions beyond the text) and Rechtsanalogie (the discovery of principles which, though not made explicit in a statute, nevertheless underlie some of its provisions). In the absence of corresponding English terms, one may be forgiven for using these German terms in an English text. The useful and indeed necessary distinction between anal- ogy and extension is implicit in WMC Gummow Change and Continuity. Statute, Equity and Federalism (OUP Oxford 1999) 11–22.Google Scholar

⁴² Acts Interpretation Act 1901 (C'th) 15AA and 15AB and similar provisions in state legislation—for detail, see Pearce, and Geddes, Statutory Interpretation in Australia (5th ednButterworths Chatswood NSW 2001) [2.7]–[2.9].Google Scholar

⁴³ ibid.

⁴⁴ This second requirement is most clearly satisfied when legislation is applied to a situation which the legislator could not have anticipated; for a useful example, see Chappell and Co Ltd v Associated Radio Co of Australia Ltd [1925] Victorian L Rep 350.

⁴⁵ ‘Methodological theory defines analogy as a process of transferring a statutory provision.…applicable to one set of facts to another set of facts which is [unambiguously] not covered by the provision, but is legally similar’, V-58.

⁴⁶ R v Newcastle-upon-Tyne Justices, ex parte Skinner [1987] 1 WLR 312 (V-1018– 21). A further example might be the decision of the House of Lords in the Royal College of Nursing Case [1981] AC 800.

⁴⁷ To similar effect is the following observation: ‘French judges tend to disguise the filling of gaps as interpretation’, Troper, Grzegorczyk and Gardies (n 33) 177.

⁴⁸ Bennion, A Code (n 11) 810, 819–22.Google Scholar

⁴⁹ Fitzpatrick v Sterling Housing Association [2001] 1 AC 27.

⁵⁰ Kevin, Re (2001) Family L Rep 158.

⁵¹ W Sax Das strafrechtliche ‘Analogieverbot’. Eine methodologische Untersuchung über die Grenzen der Auslegung im geltenden deutschen Strafrecht (Göttingen Vendenhoeck & Ruprecht Göttingen 1953).

⁵² German law may already have reached this point (V-59 n 287 and literature there listed).

⁵³ ‘it would be … helpful … if judges frankly acknowledged their debt to their own social values, and the way in which these have in fact moulded or influenced their judgments rather than the application of strict legal principle’, Cattanach v Melchior (2003) 215 CLR 1, 104 [291] (Callinan J); K Mason Constancy and Change. Moral and Religious Values in the Australian Legal System (1990) 3.

⁵⁴ Lord Devlin has stated: ‘Judges … have a responsibility for the common law, but in my opinion they have none for statute law; their duty is simply to apply it and not to obstruct’, ‘Judges and Lawmakers’ (1976) 39 MLR 1, 13.

⁵⁵ Pound, R ‘Common Law and Legislation’ (1908) 21 Harvard L Rev 383.CrossRefGoogle Scholar

⁵⁶ Other writers to have discussed the problem in this form are Cross, R and Harris, JWPrecedent in English Law (4th ednOUP Oxford 1991) 173–5;Google ScholarAtiyah, P ‘Common Law and Statute Law’ (1985)48 MLR 1;CrossRefGoogle ScholarKelly, DStL ‘The Osmond Case: Common Law and Statute Law’ (1986) 60 Australian LJ 513; Gummow (n 41) 11–18;Google ScholarBrand, VM ‘Common Law Expansion of Statutes’ (thesis 1987, on file at the University of Adelaide Law School).Google ScholarCalabresi, GA Common Law for the Age of Statutes (Harvard University Press Cambridge Mass 1982) has put forward a more radical suggestion.Google Scholar

⁵⁷ Gummow (n 41) 11–12.

⁵⁸ Lamb v Cotogno (1987) 164 Commonwealth L Rep 1, 10–12.

⁵⁹ Gummow (n 41) 16–20.

⁶⁰ Cross and Harris (n 56) 173–5.

⁶¹ V-1139–47.

⁶² Bennion (n 11) 762 distinguishes ‘fixed-time Acts’ (intended to have an unchanging mean- ing and effect) from ‘ongoing Acts’ (‘always speaking’, ie intended to develop in meaning and effect with developing circumstances). For examples of the latter, see Chappell (n 44), Fitzpatrick, (n 49) and Kevin (n 50).