Interpreting the rules

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[Certain material is drawn from current legal practice and jurisprudence in the UK, as summarised in Butterworth (2001), Law Cards for Students.]

Ordinarily, a sailing rule (RRS, ERS, or class) is read and understood as it is written.  Ordinarily, a rule is given its normal meaning.  It is only under unusual circumstances that the meaning of a rule is ambiguous, difficult to establish, problematic, or contested between some interested parties.  In such circumstances, the rule needs an official or formal interpretation.

Before beginning, it may be worth summarising some conclusions from the Web page on the nature of rules.

  • It is logically impossible for a set of rules to be 100% complete, consistent, and correct.

  • There is always the unexpected and unanticipated which occur after the rules have been drafted.  These events can never be fully covered by the rules.

  • Rules are socially constructed.  That is, their meaning is given within and by a social context.  Rules have no meaning in themselves, outside the social context in which they are created, used, interpreted, amended, and deleted.  And within their social context, their creation and use is by fallible humans with certain, possible differing, points of view.

These factors lead to the certainty that any set of rules is inevitably imperfect, and a fortiori, their application is inevitably imperfect.

The need for interpretation is not to be taken as any reflection upon the competence of the rule-maker, but simply as a reflection upon the inevitable imperfection of any body of rules.

The following ideas present three areas where we can find help in interpreting rules.  One area involves explicit guidelines on making an interpretation;  another comprises some specific aids to interpretation;  and the final area is where past cases and precedent can give guidance.

 

1 Guidelines for interpretive practice

By way of assistance, there are three major guidelines for interpretive practice drawn from legal practice: the "literal", "golden", and "mischief" guidelines.

1.1 "Literal" guideline

According to this guideline, the intention of the rule-maker is said to be found in the ordinary and natural meaning of the words used.  The advantages of this guideline are that it:

  • prevents usurping the function of the rule-maker

  • encourages precise drafting

  • promotes certainty, and

  • helps prevent unnecessary protests and requests for interpretation.

The disadvantages of this guideline are that:

  • placing emphasis on the precise meaning of words can defeat the rule-maker's intention, and

  • it fails to recognise the inevitable imperfection of draftsmanship.

1.2 "Golden" guideline

According to this guideline, words are given their ordinary meaning, as in the "literal" guideline, unless this produces a result which is manifestly absurd.  The disadvantages of this guideline are that:

  • what is manifestly absurd is left as a subjective view, and

  • the interpreter's view of the manifest absurdity of the rule in question may not reflect the views of others.

1.3 "Mischief" guideline

Given that a rule-maker invariably makes rules to achieve some purpose, this guideline says that any interpretation should have the effect of promoting the purpose in question.  The word "mischief" is a legal term, and here refers to any interpretation which seeks to knowingly defeat the rule-maker's intention or purpose.  That is, it is mischievous to interpret a rule contrary to its intended purpose. The disadvantages of this guideline are that:

  • the purpose or intention of the rule-maker may not be known, may be difficult to determine, or may itself require interpretation, and

  • the interpreter's view of the purpose or intention of the rule in question may not coincide with the views of others.

 

2 Aids, canons, presumptions

There are aids to interpretation which may be used, canons which may be adopted, and presumptions which may be made.

2.1 Aids

Internal aids to the interpretation of a rule include

  • the punctuation

  • title

  • headings, and

  • notes within the rules.

External aids to interpretation include

  • the history of the rule

  • other rules

  • reports of relevant official committees and bodies

  • international conventions, and

  • official documents.

Using external materials to assist in finding the intention of the rule-maker is a common European practice that is slowly gaining ground in the UK.

2.2 Canons

  • If general words follow specific words, the meaning of the general words is restricted to objects or persons of the type indicated by the specific words.

  • The specific expression of one thing implies the exclusion of another.

  • The meaning of a rule can be gathered from the context in which it is found.

2.3 Presumptions

It may be presumed that the rule in question does not (unless there is an explicit statement otherwise) seek to

  • interfere with the legitimate interests of authorised bodies or officials

  • remove the jurisdiction of the rule-maker

  • operate retrospectively

  • change the law of the land, or

  • deprive liberty or human rights.

The last two presumptions have limited applicability to sailing rules and requests for interpretation.

 

3 Cases and precedents

Case law, previous interpretations, and precedent require the application of the findings and principles contained within previous decisions.  This gives consistency and certainty.  Interestingly, the application of previous cases and precedent can also give flexibility. Flexibility arises when these previous cases, previous interpretations, and precedent come under detailed and thorough periodic review, allowing them to be either incorporated in the current rules, explicitly over-ruled and deleted, or "distinguished". "Distinguished" is a legal term which applies when a precedent is determined to be different and not applicable to the present case for one or other good reason, thus allowing the present case to set its own distinguishing precedent.

But past cases and precedents can

  • lead to rigidity

  • limit interpretive discretion and therefore introduce hardship, and

  • an excessive bulk of past material can lead to possible confusion and time-consuming processing.

 

4 Conclusions

A set of rules is inevitably imperfect. There are imperfections if only because the rule-makers do not utilise the services of legal or legislative experts in the drafting of its rules, and because imperfections also arise from simple matters such as typographic and editorial errors.  We also know that it is logically impossible for a set of rules to be 100% complete and consistent, that there is always the unexpected that any set of rules must fail to anticipate, and that rules only acquire meaning within a social context.

The above discussion shows, in various ways, that interpreting a rule involves identifying and then giving effect to the intention of the rule-maker, or (what is the same thing) identifying and then giving effect to the purpose of the rule.  The over-riding principle is that any interpretation must give effect to the will of the rule-maker.

This is quite contrary to what most people think.  It is usually held that the "real" meaning of a rule can be found by considering the rule on its own, and by giving the words of the rule their ordinary meaning.  As the Web page on the nature of rules also shows, both of these notions have serious difficulties.

Accordingly, rule-makers are encouraged to provide notes or commentary on the intention and purpose of the rules they promulgate, and to similarly provide notes or commentary on the intention and purpose of the interpretations they provide.

2005-12-18


2011 Lester Gilbert