evaluation of the purposive approach

• what are the main advantages of the purposive approach?

  Avoids the injustice of the literal approach

  Avoids absurdity

  It allows the law to be developed over time to take into account the changing environment and new technology

  Givesjudges discretion in their decisions
• what are the main disadvantages of the purposive approach?

  Judges can make the law, which is not their job

  Judicial law making is undemocratic

  Can be retrospective, which is unfair to the defendant

  Referring to hansard doesnt necessarily represent the intention of parliament

  It is timely and costly to research extrinsic
• Why is the fact that the purposive approach avoids the injustice of the literal rule an advantage?

  The purposive approach allows judges to interpret statutes in a way that aligns with the intended purpose behind the law, preventing potential injustices that could arise from a strict literal interpretation. This approach ensures that the law is applied in a fair and reasonable manner, considering the broader context and objectives of the legislation.
• why is the fact that the purposive approach avoids absurdity an advantage?

  The purposive approach helps to avoid absurd outcomes that might result from a literal interpretation of the law. In Whitley v Chappell (1868), the court avoided an absurd result by interpreting the statute in a manner that aligned with its intended purpose, thereby ensuring that the law was applied sensibly.
• Why is the fact that the purposive approach allows the law to develep an advantage?

  The purposive approach allows the law to evolve with society, taking into account new developments and technologies. This adaptability ensures that the legal system remains relevant and effective in addressing contemporary issues, as seen in cases where courts have had to interpret laws in the context of modern advancements.
• Why is the fact that the purposive approach gives judges discretion in their decisions an advantage?

  The purposive approach grants judges the discretion to interpret statutes in a way that aligns with the underlying purpose of the law, allowing them to consider the broader implications and societal context. This flexibility helps ensure that the law is applied in a manner that achieves its intended objectives.
• why is judicial law making a disadvantage of the purposive approach?

  The purposive approach can lead to judicial law-making, where judges effectively create new legal principles rather than merely interpreting existing laws. This can be seen in Donoghue v Stevenson (1932), where the court's decision established a new principle of negligence, arguably stepping beyond the traditional role of judicial interpretation.
• why is the fact that the purposive approach can be retrospective a disadvantage of the purposive approach?

  The purposive approach can result in retrospective application of the law, where individuals are judged based on interpretations that were not clear at the time of their actions. In R v R (1991), the court's decision to recognize marital rape retrospectively applied a new understanding of the law, which could be seen as unfair to the defendant.
• why is the fact that referring to hansard not necessarily representing the views of parliament a disadvantage of the purposive approach?

  Using extrinsic aids like Hansard (the official report of parliamentary debates) can be problematic, as it may reflect the views of individual parliamentarians rather than the collective intention of Parliament. This can lead to subjective interpretations that may not accurately represent the legislative intent.
• Why is the fact that it is timely and costly to research extrinsic aids a disadvantage for the purposive approach?

  The purposive approach often requires extensive research into extrinsic materials to understand the purpose behind a statute. This can be time-consuming and costly, adding to the complexity and duration of legal proceedings.
• why is the fact that judicial law making is undemocratic a disadvantage of the purposive approach?

  The purposive approach grants significant interpretive power to unelected judges, which can be seen as undemocratic. This centralizes decision-making authority in the judiciary, potentially undermining the democratic principle that laws should be made by elected representatives.
• Why is the fact that parliamentry interpretation is difficult to define a disadvantage of the purposive approach?

  Determining the true intention of Parliament can be challenging and may lead to subjective interpretations. Judges might have different views on what the legislative intent was, leading to inconsistency and unpredictability in legal rulings.