the law vs the intention of the law

Discussion in 'CycleChat Cafe' started by Firm Button, 10 Aug 2018.

  1. Firm Button

    Firm Button Senior Member

    Location:
    Uttoxeter/Charente
    Curious as to legal minds and lay persons views on this. What should (and what will) take precedence in the courts of our land? And do any particular courts weigh more on one side or the other?
    Cheer
    Steve
     
  2. SpokeyDokey

    SpokeyDokey 61: old body, head still feels the same. Moderator

    Laws are always open to interpretation, more so regarding complex ones, so I'd go with original intent as my 'what should' answer. I don't think that laws are 100% one size fits all.
     
    Inertia likes this.
  3. Salty seadog

    Salty seadog Space Cadet...(3rd Class...)

    classic33 likes this.
  4. meta lon

    meta lon Guru

    Location:
    pboro
    Don't get caught is the only rule that counts:okay:
     
    dave r and Reiver like this.
  5. Or maybe GDPR?
     
  6. Interesting use of the term British in the headline when it does not apply in Scotland which has RIPSA, the S standing (curiously enough) for Scotland
     
  7. Fnaar

    Fnaar Smutmaster General

    Location:
    Thumberland
  8. Salty seadog

    Salty seadog Space Cadet...(3rd Class...)

    Well councils from all quarters were at it but having both acronyms in would make for a clunky title I suppose.
     
  9. Is this really a question in UK law? It's very important in the US, because they have a written constitution so it's important. They have to apply principles laid down hundreds of years ago to concepts that didn't exist like genetic engineering, or online privacy. The split between just reading the words and deciding how the "framers" would have felt about it (which is odd, because several of them kept slaves) is fundamental to interpreting it.

    Our laws are mostly made in parliament, and when it's challenged in court, the framers are mostly still with us, and often still in Government. I believe the courts follow what is written, rather than what was intended. If they turn out to not be the same thing, the "framers" can amend the legislation to reflect what they meant.
     
  10. Reiver

    Reiver Legendary Member

    did you mean 'Farmers' ? it would explain a lot
     
  11. It's the word used by SCOTUS to describe the people who framed to constitution. I've used it to describe out parliament because I am pretty convinced the question arises from there.
     
  12. How would that work? You can get arrest for breaking the "intention" of the law, even though you obeyed it as written to the letter? And MPs appearing in court saying what they meant?

    Actually, that doesn't even work. The people who drafted the law in committee may have meant one thing, but the MPs and Lords who voted for it were voting for what was written, not what was in the hearts of the people on the committee. UK laws must be taken as written.
     
  13. SpokeyDokey

    SpokeyDokey 61: old body, head still feels the same. Moderator

    The OP was regarding what takes (or should take) precedence in our Court system. The law or the spirit of the law. My simple understanding (I'm no expert) is that our laws evolve through the process of Precedent whereby Judges interpret law in a specific manner during case trials that may well set the interpretation for future similar cases. Whilst this may keep laws (or their interpretation of) up to date, it fuels the debate as to who makes our laws; the Judiciary or Parliament.

    A quick Google gives this essay (there's lots of similar results) which indicates the methods Judges use to interpret law in the practical application thereof:

    https://www.lawteacher.net/free-law...n-of-legislation-constitutional-law-essay.php

    My view is that some laws, due to their age, may be out of date when applying them in the modern world and that the Judiciary may need to modify them to get a fair and reasonable result before Parliament has the time, or inclination, to change them.

    Just thinking off the top of my head tbh and maybe a Legal Eagle will come along and explain how it all works to our benefit.
     
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  14. OP
    OP
    Firm Button

    Firm Button Senior Member

    Location:
    Uttoxeter/Charente
    Yes, I refer to what takes place/should take precedence in our courts in the Uk. But do certain courts take a slightly different stance? Ie do lower courts rely on case law and the letter of the law and higher courts taking the intention of the legislation into account.. maybe for times when the law was poorly written and loopholes found with init which resulted in unintended consequences which need to be clarified. I suspect that a simple view would be taken in lower courts, but when courts are disagreeing with each other and the case goes up to the high/appeal/supreme courts, the intention of the law (designed to correct the mischief ) must be taken into account and even given a substantial weight?

    Steve
     
    SpokeyDokey likes this.
  15. Bonefish Blues

    Bonefish Blues Banging donk

    Location:
    52 Festive Road
    Pepper v Hart (Wikipedia is your friend) is a good primer on the case which established the principle that in limited circumstances a higher court could reach back into the parliamentary debate to discern what was the original intent of the legislature.
     
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