Theme 5 - How to Interpret Legislation Flashcards
The general principles of hermeneutics.
Discuss the general principle of hermeneutics.
Jurisprudential perspectives on statutory interpretation.
- Defined as the science of understanding/more specifically, as the theory of the interpretation of texts.
- Originates from the late 17th century.
- The understanding and explanation of texts to reveal their inherent meaning.
- The art of understanding the techniques used in interpretation of texts.
The general principle of hermeneutics.
Discuss the context and interpretation.
Jurisprudential perspectives on statutory interpretation.
Picasso painting analogy: painting (text) plus context (background) equals understanding (or at least the beginning of the process of understanding).
The influence of certain modern critical theories.
Discuss the influence of certain modern critical theories.
Jurisprudential perspectives on statutory interpretation.
- Critical legal scholars reject the formalist position that law is rational, objective and neutral, instead they say some law is subjective and ideological, thus the literal v contextual interpretation approaches.
- Post-modernism is a school of thought that rejects preconceived ideas and macro-arguments and categorization; instead that every idea is only as good as the preconceptions and presuppositions that are there.
The influence of certain modern critical theories.
Discuss the Critical Legal Studies movement (CLS).
Jurisprudential perspectives on statutoty interpretation.
- Originated in reaction to the inability of liberalism to solve social problems.
- It does not have an alternative programme, but rather unmask the ills of liberalism.
- It states that in IOS legal theories and legal reasoning are supported by political considerations, and the existing political and social balance of power is consolidated.
The influence of certain modern critical theories.
Discuss deconstruction.
Jurisprudential perspectives on statutory interpretation.
- Deconstruction calls for a person to consider and reconsider, and ultimately to reformulate, dominant theories and opinions about society.
- It states that the meaning of a text is not determined by the author, allowing the reader to interpret in an impartial and unbiased manner.
The influence of certain modern critical theories.
Discuss the linguistic turn.
Jurisprudential perspectives on statutory interpretation.
The linguistic turn in legal interpretation amounts to this: the meaning is not discovered in a text, but is made in dealing with the text.
The orthodox text-based approach.
Discuss the orthodox text-based approach.
South African theories of interpretation.
- The interpreter should concentrate primarily on the literal meaning of the provision.
- It is the primary rule of interpretation that if the meaning of the text is clear (the plain meaning) it should be applied and indeed equated with the legislature’s intention.
The orthodox text-based approach.
What is the golden rule of interpretation?
South African theories of interpretation.
- If the plain meaning of the words is ambiguous, vague/misleading/if a strict literal interpretation would result in absurd results, then the court may deviate from the literal meaning to avoid absurdity.
- Then the court would turn to secondary aids and if that fails then tertiary aids.
The orthodox text-based approach.
On what principles is the essence of textual interpretation based on?
South African theories of interpretation.
- If the meaning of the words is clear, that meaning is deemed to be what the legislature intended.
- The golden rule of textual interpretation.
- The textual approach is derived from legal positivism. Legal positivism argues that all law is derived from the state, the command of the state is the essence of the rules which make up the law.
- The textual approach leaves very little room for judicial law-making, the courts are seen as mere mechanical interpreters of the law.
The orthodox text-based approach.
What is the critcisms of the textual approach?
South African theories of interpretation.
- Presumptions and context is ignored: the central role played by the common law presumptions during the interpretation process is reduced to a mere ‘last resort’, to be applied only if the text is ambiguous.
- The approach is to narrow: the words are regarded as the primary index of the legislature’s intention.
- Very few legislative texts are so clear that only one interpretation is possible: the view that a legislative text can be clear and unambiguous must be questioned. Few texts are so clear that only one interpretation is possible.
The text-in-context approach.
Discuss the text-in-context approach.
South African theories of interpretation.
- The purpose/object of the legislation is the dominant factor in interpretation.
- This approach establishes a balance between the grammatical, literal meaning and the overall contextual meaning as the interpretation of the provision cannot be complete until the purpose and extent of the legislation are also taken into account.
The text-in-context approach.
Discuss the mischief rule.
South African theories of interpretation.
- The so-called mischief rule is the basis of contextual interpretation: the mischief rule stand in contrast to the literal approach and is the basis of a purposive, contextual approach to interpretation.
- It acknowledges the application of external aids such as the common-law prior to enactment of the legislation, the mischief in the law not provided for, the new remedies and the reasons for such remedies to provide the interpreter with the purpose and meaning of the provision.
The text-in-context approach.
Discuss the position in South Africa before 1993.
South African theories of interpretation.
Before the commencement of the 1993 Constitution, statutory interpretation in South Africa was in a gradual state of transition from the rigid literal approach towards a more flexible contextual approach.
The following are guidelines for interpretation of statutes:
- From the outset, the interpreter may take the wider context of provisions into consideration with the legislative text in question.
- Irrespective of how clear/unambiguous the grammatical meaning of the legislative text is, the relevant contextual factors must be taken into account.
- Unlike the textual-literalist approach, there is no primary, secondary/tertiary hierarchical order of importance of aids.
The text-context-approach.
Discuss the inherent law-making discretion of the judiciary.
South African theories of interpretation.
- The contextual interpreters hold the view that the judiciary has inherent law-making discretion during statutory interpretation.
- This discretion is, however, limited (qualified) by the prerequisite that such modification/adaptation of the meaning is only possible when the purpose and extent of the legislation are absolutely clear to support such a modification/adaptation.
The influence of the supreme Constitution.
Discuss constitutional supremacy.
South African theories of interpretation.
- Prior to 1994, they had the textual approach, the debate has become irrelevant, since the new Constitution, which included an express and mandatory interpretation provision.
- Interpretation now has to be founded within the value-laden framework of the Constitution.
- It was transformed by six provisions of the Constitution.
- These 6 provisions are: section 1 (foundational provision) section 2 (supremacy
of the Constitution), section 7 (the obligation clause), section 8 (the application clause),
section 36 (the limitation clause) and section 39 (the interpretation clause).
