What is it about?

This paper is aimed at highlighting how common law has evolved over the centuries, namely through the flexibility accorded to judicial precedents, as well as through the evolutionary nature evidenced in the processes and rules applied in statutory interpretation. In addition to illustrating how informational asymmetries can be mitigated through decentralisation, the paper also illustrates how a particular case, Pepper v Hart has revolutionised the scope and permissibility of aids to statutory interpretation. Whilst the decision in the case has been criticised as having facilitated a transfer of powers from the executive and legislature, to the judiciary, it is also evident that any form of aid to statutory interpretation - which would greatly assist judges in arriving at reasonable outcomes - in terms of legitimate expectations and efficient allocation of economic resources, should be permitted in judicial proceedings.

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Why is it important?

Whilst financial markets and changes in the environment impact legislators, and whilst it is widely accepted that legislation constitutes the supreme form of law, the necessity for judges to introduce a certain level of flexibility will also contribute towards ensuring that legitimate expectations of involved parties are achieved - particularly where the construction of the words within a statute gives rise to considerable ambiguity.

Perspectives

An interdisciplinary approach is demonstrated as being more effective in addressing challenges associated with statutory interpretation by judicial authorities. This not only highlights the interlinks and degree of association between legal and economic disciplines but also serves in mitigating gaps previously unaccounted for. Particularly in an age where the digital economy is accounting for a substantially proportion of economic activities. How can regulation be applied to virtual concepts and previously undefined and unaccounted for mediums? Are such provisions addressed in statutes........ ? To what extent can judges apply "outdated" and no longer relevant statutes in such a way that they are relevant to modern technological advances and the business environment? The need to incorporate other aids to statutory interpretation - more aligned and relevant to the demands of an increasingly evolving environment is essential to ensuring that a more UP-TO-DATE and accurate (as well as relevant ) outcome is provided by judges.

Prof Marianne Ojo
Northwestern University

Read the Original

This page is a summary of: Harmonising Hayek and Posner: Revisiting Posner, Hayek & the Economic Analysis of Law, SSRN Electronic Journal, January 2015, Elsevier,
DOI: 10.2139/ssrn.2614027.
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