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ISBN: 9780199247776

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Understanding Common Law Legislation Drafting and Interpretation

Drafting and Interpretation

F.A.R. Bennion


There are many countries that use and apply the common law, which collectively may be called the common law world. A feature of this world is that nowadays it largely operates through statutes enacted by a country's democratic legislature, and that these mainly fall to be construed according to a uniform system of rules, presumptions, principles and canons evolved over centuries by common law judges. The statutes subject to this interpretative regime may be called common law statutes. They are the main subject of this book, along with the said uniform system. The book distills and updates within a brief compass the author's published writings on statute law and statutory interpretation which span a period of nearly forty years, being contained in half a dozen books and many more articles. The chief books are Statute Law (Longman, third edition 1990), Halsbury's Laws of England, Title Statutes (Butterworths, 4th edition reissue 1995), and Bennion on Statutory Interpretation (LexisNexis Butterworths, fifth edition 2008). Since its first publication in 1984, the last named work has also been updated each year in the All England Law Reports Annual Review (Butterworths).

Written by the leading authority on statutory interpretation - his text of that name is the practitioner bible

Explains the system of interpretation common to British, Commonwealth, and United States legislation under the common law

Shows how the traditional method of statutory interpretation interlocks with the new system under the Human Rights Act (1998)

Describes for students and legal practitioners the way to interpret British, Commonwealth, and United States legislation

1: Basic concepts I: common law statutes; the enactment; legal meaning; factual outline and legal thrust; implied ancillary rules
2: Basic concepts II: opposing constructions; literal, purposive and developmental interpretations
3: Grammatical and strained meanings
4: Consequential and rectifying constructions
5: Contradictory enactments and updating construction
6: Drafting techniques and the Interpretation Act
7: Transitional provisions and the Cohen question
8: Words in pairs
9: Rules of interpretation
10: Legal policy
11: Interpretative presumptions
12: Linguistic canons and interpretative technique
13: The nature of judgment
14: The nature of discretion
15: The European Union and the HRA
16: The jurisprudential basis of the common law method
17: The common law system in America
18: Techniques of law management

F.A.R. Bennion , Member of the Oxford University Law Faculty

F.A.R. Bennion was formerly one of the Parliamentary Counsel, responsible for drafting British legislation. His drafting work includes, among much constitutional and other legislation, the Consumer Credit Act 1974 and the Sex Discrimination Act 1975. As a constitutional lawyer, he has also advised at various times the governments of Pakistan, Ghana, Jamaica, and Gibraltar. He drafted constitutions for Pakistan (1956) and Ghana (1959-1961) on those countries attaining the status of independent republics. He was also formerly law tutor at St Edmund Hall in the University of Oxford, and is still a member of the University's law faculty.

`Francis Bennion brings with him years of experience in legislative drafting ... The treatment is uniformly illuminating, and the style is homely.' The Commonwealth Lawyer

`Readers who have come to expect a degree of iconoclasm from Francis Bennion will not be disappointed. he includes the occasional throwaway line which reverberates. All this serves only to increase the pleasure of reading the book: it never affects the careful objectivity which Bennion brings to bear on his subject.' Law Quarterly Review Vol. 118, July 2002

`... fascinating and entertaining ... The text is clear and accessible, enlivened by examples and enhanced by chapter summaries.' New Law Journal, 8 Feb 2002

`For Bennion: "Legislation is what the legislator says it is. The meaning of legislation is what the court says it is"...A major difference in craft, which Bennion highlights, lies in the drafting style of legislation in the common law...the issues of differences in drafting may be less of a problem in relation to legal interpretation and be more of a matter concerning what Bennion helpfully describes as "law management"-the techniques of dealing with statutory materials. In terms of "learning the craft of law", techniques of law management may be more significant than techniques of legal interpretation. Bennion's work is at its clearest in describing the procedures to be followed for processing an enactment...As he suggests, the process of understanding and compiling a statute depends on understanding how it was drafted in the first place...' Professor John Bell, Legal Studies, Vol. 22 No. 3, September 2002

`This book lays down most lucidly the fundamentals of common law legislation, the drafting techniques and the interpretation principles. In his voluminous treatise on Interpretation, Bennion has seminally carved out new spheres of interpretative jurisprudence and this book could be said to be a prologue to the main treatise. It proved very useful in the course on Interpretation as not many books give the jurisprudential foundations of interpretation principles which it does.' Rishabh Sancheti, National Law University, India, September 2006

`[This book] not only makes a good reading on understanding common law legislation but also delves into 'global techniques' of interpretation of statutes. It also offers a blue print of law curriculum on interpretation of statutes.' K. I. Vibhute, Scholastcus, January 2004

`Bennion is one of Great Britain's leading scholars in the area of statutory construction. This is one of the best books on statutory construction that I have read.' Gary O'Connor, Statutory Construction Zone

`The book is based on writings which span nearly four decades. It covers not only issues relating to the enactment of common law statutes and the various rules governing their interpretation, but also legal policy, the nature of discretionary powers, the jurisprudential basis of the common law method, and techniques of law management. The treatment is uniformly illuminating and the style is homely. The author's philosophy is best summed up in his observation that, "Up and down the land, statutes are not some out of the way dusty nuisance. They are part of everyday life, and we had better understand them if we can."' Dr Venkat Iyer, The Commonwealth Lawyer vol.11 no.2, August 2002

`Bennion is outstanding in conceptualising statutory interpretation.' Jeffrey Barnes, Law Trobe University, Australia, 2001