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Interpreting Law and its pitfalls
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Posted on Wed, Jun 6, 2012 at 08:02 IST (last updated: Wed, Jun 6, 2012 @ 08:08 IST)
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Among the three traditional "professions", medicine, engineering and law, law appears to be the easiest and most approachable subject for a layman. As a matter of fact, a superficial understanding is quite easy simple. However, reading law, interpreting law and then applying law to facts is something that lawyers specialize in for a reason. Lay people think they understand law. But the reality is that they don't. Even if they did understand, it is not at all easy to figure out the history and application of a particular piece of legislation or legal principle. A lot of fundamental legal principles have a rich historical background - they've been debated, interpreted, figured out, argued for and against, and have been adopted as correct by the highest courts and the eminent jurists. It's important for any lawyer to know these fundamentals, because they are sometimes vital in interpreting a particular piece of legislation or rule. Sometimes, a rule or legislated Act will appear to be completely contrary to some fundamental principles of law on plain reading. Yet for interpretation, there are certain rules of thumb of legal interpretation that may be necessary to figure out what a particular piece of legislation actually means and what the lawmakers intended to achieve with the legislation. Without the knowledge of rules of interpretation like the Golden rule, Context rule and Mischief rule some legal provisions might appear to be completely meaningless.
The reason I state the above is that I have noticed a tendency for non-lawyers to take any law at face value and completely accept its validity just because it has been enacted by Parliament. A rule or provision of an enacted law might appear to be completely contrary to the principles of natural justice and even common sense, but lay people simply tend to accept it as "it's the law, you cannot do anything about it." Even in the face of several historical judgements that establish a different view on an issue, an enacted law simply becomes the law. But of course, when it is interpreted, that is where the whole problem arises, because lay people do not know or understand either the historical background of the legislation or the principle of law it violates. To many people, it just is law. I think even many lawyers make this mistake because their fundamentals are poor. In my view, this is what separates the really good lawyers from average ones. Understanding the principle and historical context.
While I can understand lay people not bothered about legal principles and past judgements and decisions of the superior judiciary, I cannot excuse lawyers who do this. Reading is so important for any lawyer, but equally important is to know why a particular decision might be good in law or bad in law. All court decisions have arisen from concrete reality, not legal theory, so those judgements are quite important from a practical point of view also. History repeats itself. It is the duty of every lawyer engaged in a case to look up past decisions in similar cases and also understand the fundamental principle of law that might be the point of argument. If a particular case violate a particular principle, it is important to know why it violates the principle and whether the judge has found a new angle to an existing principle. If a lawyer doesn't do this in such cases where the point of law arises, he/she hasn't earned their fees. Simple as that.
I believe that understanding law is not just a matter of reading. It is a matter of experience. The easiest way for a fresh law graduate to gain an understanding of law is not just to understand the fundamental principles and theories but also to refer case law and historic judgements, keep updated with recent developments in that area, and soak in the knowledge that has come as a result of past experience.
In this series
- Why Contempt of Court ought not be diluted or removed
- In favour of retaining criminal defamation laws
- Supreme Court upholds freedom of speech
- The slippery slope of "Justice"
- The concept of preliminary objections in Law
- The Art of being in Two Places at once
- Interpreting Law and its pitfalls
- Drafting legal pleadings - an overview
- The art of drafting contracts
- Two methods of learning in the legal profession
- பாரம்பரிய அறிவும், அறிவுசார் சொத்துரிமைச் சட்டமும்
- வீண் பேச்சால் விபரீதம்
- Law and paperwork go together like bread and butter
- ஒரு வழக்கை நடத்துவதற்கு ஏன் வழக்கறிஞர் தேவை?
- The 3 Ds of the legal profession
- Is occasional swift justice a failure of law?
- Contempt of Court - an overview
- Chemical pollution caused by industries: why they invite heavy sanctions
- Business law - the most boring aspect of law
- Legal ethics: how can a lawyer defend the guilty?
- Criminal jurisprudence and the presumption of innocence
- Is tolerance a legal virtue?
- Road accident cases - how to deal with emergencies
- Blogging in anger and its legal implications
- Common wrong assumptions by amateur internet "lawyers"
- On Legal Opinions
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