Ambulatory Legal Interpretation

[65] See J Bell and G Engle, Cross: Statutory Interpretation (1995) 52; Editorial, “How Does the Law Change” (1999) 20 Property Law Bulletin 41; Bennion, Statutory Interpretation: a Code, über n 3, 694. Bennion does not explicitly address this point in the third or fourth edition of his book. However, it seems clear that his insistence that the terms of a law be interpreted in such a way that the original intention of the authors is implemented in a modified context would allow for changes in meaning. An obvious example is his treatment of Williams and Glyn`s Bank v Boland [1980] UKHL 4; [1980] 2 All ER 408, which he describes as an interpretation modified to give effect to the original intentions: Bennion, Statutory Interpretation: a Code, above No. 3, 694-5. In Birmingham City Council v Oakley, the Lords examined whether section 79(1)(a) of the Environmental Protection Act 1990, which empowered local authorities to issue legal nuisance mitigation notices, allowed for an order requiring the removal of toilets so that tenants of an apartment had access to a sink without going through the kitchen. [39] The section allowed an order to be made if the premises were “in a condition prejudicial to health or harmful.” The question was whether the word “state” covered the floor plan of a house, where it created the danger that people would endanger their health, or whether it was limited to the presence of certain things that were inherently unhealthy or harmful. [40] While the word “State” was considered appropriate to cover floor plan issues, the majority took on the narrower meaning. This was the result of the context in which the provision was first enacted: in 1850, it was unlikely that Parliament intended to regulate the provision.

[41] Lord Hoffman acknowledged that modern hygiene standards supported the broader view, but argued that the ambulatory approach did not allow the court “to interpret the language of an old law in such a way that it conceptually means something different from what contemporary evidence shows that Parliament must have the intention.” [42] On the other hand, the minority argued that the law should be interpreted in a modern manner, regardless of its legislative history,[43] and that the original objectives of the law extended to the regulation of presentation, although the broad scope of such regulation was recognized only in light of modern developments in hygiene standards. [44] Nevertheless, this argument summarizes an important truth: achieving the objectives of a statute may sometimes require changes in its interpretation. The problem is that this premise is applied to an overly broad conception of the legislative objective. The question must be whether the specific objectives of the law require a rule capable of developing overtime. If this is the case, changes in meaning may be justified, but not a dynamic interpretation. Therefore, it seems that a strictly majority view of democracy is incompatible with dynamics. However, an alternative conception of our constitutional structure is often seen as more favourable. Their basis is that the will of the majority is not the only fundamental value in our community. On the contrary, fundamental human rights and other values may have the same or greater importance in a democracy. [131] Indeed, such terms are implicitly linked to the ideas of freedom and equality that motivate democracy itself.

As Lord Cooke said, “certain rights are inherent and fundamental to a democratic and civilised society”. [132] An ideal legislator would always respect these rights,[133] but The legislator is not ideal. Democratic principles are imperfectly put into practice by fallible human legislators. The role of the courts should therefore not be understood as if Parliament were living up to its normative aspirations. Rather, democracy must be rethought as a “collaborative enterprise” between the courts and parliament. [134] The judiciary must act as the guardian of fundamental values and share with Parliament the responsibility for developing our legal framework in accordance with them. This means that the courts should not be seen as subordinate to a supreme legislature, but as its partner in a joint venture. Therefore, it is argued that this is the best view of democratic politics.[141] Dynamists often invoke similar theories to justify a dynamic interpretation. Eskridge suggests that “a counter-majority legal interpretation may be normatively desirable if it contributes to the overall legitimacy of the political system.” [142] The idea seems to be that legislators and magistrates are responsible for creating the best possible substantive law. [143] This undertaking is hampered by Parliament`s inability to update the legislation, so the courts must intervene by interpreting the laws dynamically. [144] The fundamental democratic norm that laws must reflect the will of today`s citizens[145] and other important values such as equality before the law[146] would otherwise be compromised, undermining the integrity of the legal system itself.

[147] On the other hand, it could be argued that in the absence of clear evidence that variability is intended, the legislation should be interpreted precisely. Two reasons could be given. First, it may be argued that, in the absence of such evidence, the mobility authorisation amounts to a usurpation of the legislative function, since it allows the Court to implement social policies which have not received legislative authorisation. [275] For example, many consider that the fitzpatrick decision to extend rights to same-sex couples rests with Parliament and not with the courts,[276] but it appears to be directly in line with the broader understanding of mobile word technology. However, this view is based on an overly narrow view of the role of the judge. [277] Recognizing a word as a motive does not mean that high-political issues are transferred to the courts.