law authorises a transaction it may be invoked by anyone who seeks what the
transaction provides such as forming a corporation or making a valid will.
Making Common Law
Sometimes in a case a court is asked to make a new common law rule and
sometimes they accede to the request. However, the nature of common law is
such that the new rule is usually an outgrowth from an existing rule or set of
rules, rather than a new planting. Consequently the line between making a
common law rule and extending or interpreting a common law rule is often not
easy to draw in practice.
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Interpreting Statute Law
The law of statutory interpretation has become the most important single
aspect of legal practice. Significant areas of the law are determined entirely
by statute. No area of the law has escaped statutory modification.
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Introduction
There are two basic matters to explain about interpreting law. One consists of
ambiguity which creates the need for interpretation, while the other consists of
resolving ambiguity by interpretation.
Ambiguity
A law – a rule in statute law or common law - is ambiguous when some word
or phrase in it has more than one meaning. In consequence, when that part of
the law is applied to facts sometimes the legal consequences of those facts are
not clear –
according to one meaning of the ambiguous provision the law
applies, according to at least one other meaning it does not apply.
Consequently,
a user of the law such as a citizen, lawyer or government
official,
will be in doubt about what a rule means, and thus about whether or
how the rule applies to a particular set of facts. This means in turn that there is
doubt about a person’s legal position - for example, in a litigious matter it may
not be clear whether the person is liable or not liable to be sued by another.
To explain ambiguity and how and why it is resolved by interpretation, take a
cause of action with Elements 1-n where there is ambiguity within one element,
Element 2. Assume that in this case the plaintiff can establish each element of
the cause of action except for Element 2 where there is uncertainty. This
uncertainty arises because Element 2 has two possible meanings, designated
Element 2 Meaning 1 and Element 2 Meaning 2. Conveniently these can be
compressed into the form Element 2M1 and Element 2M2. Element 2M1 is
satisfied by Fact 2M1 which is provable by Evidence 2M1. In a similar way,
Element 2M2 is satisfied by Fact 2M2 which is provable by Evidence 2M2.
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There is discussion of making common law in Chapter 2 Law.
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Spigelman (2001) p 224
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