LEGAL INTERPRETATION

UNIT 5

UNIT 5 OUTCOMES

1. Discuss the general principles of hermeneutics.

2. Analyse the influence of certain modern critical theories:

(a) The Critical Legal Studies Movement (CLS).

(b) Deconstruction.

(c) The linguistic turn.

3. Discuss the South African theories of interpretation:

a) The orthodox text-based approach.

b) The text-in-context approach.

c) The influence of the Supreme Constitution.

4. Analyse the practical, inclusive method of interpretation.

1. Discuss the general principles of hermeneutics.

Hermeneutics is the science and art of interpreting texts, deriving from the
Greek word hermeneuein, meaning "to interpret." It applies to various forms of
communication, such as written and spoken texts, and even non-verbal cues like
facial expressions and traffic signs. Historically, hermeneutics was central to
both Christian theology and legal interpretation, where it served to apply
established texts to contemporary issues. For example, biblical hermeneutics
interprets scripture to remain relevant in modern times, while legal
hermeneutics interprets statutes to resolve legal cases.

The distinction between exegesis (the original meaning of the author) and
hermeneutics (how the text applies today) is key. The work of philosophers like
Gadamer, Ricoeur, and Schleiermacher emphasized the importance of context in
interpreting texts. They argued that meaning is derived not from words alone,
but from the overall structure and context of language.

For legislation, hermeneutics is crucial in understanding how specific parts of a

law relate to the whole, a process known as the "hermeneutical circle."
Interpretation involves more than mechanical rules; it requires judgment and
understanding the broader context of a law’s application. Thus, judicial
discretion is essential when interpreting legislation.

2. Analyse the influence of certain modern critical theories:

(a) The Critical Legal Studies Movement (CLS).

The Critical Legal Studies (CLS) movement emerged as a response to the

inability of liberalism to address issues like poverty, racism, and social
inequality. CLS challenges the idea that law is objective and neutral, arguing
instead that the legal system serves to reinforce social and economic power
structures. According to CLS, the law disguises its political role and maintains
the status quo through mechanical interpretations that support existing power
relations.

CLS critiques the liberal legal tradition for relying on hidden political
ideologies and emphasizing individual rights over community involvement,
thereby perpetuating inequality. It also argues that legal reasoning and statutory
interpretation are influenced by political considerations, which ultimately
sustain the current social and political order.

(b) Deconstruction.

Deconstruction challenges the structuralist view that meaning can be fixed

through grammatical structure, such as in legal positivism. It argues that
meaning is fluid, never fixed, and constantly deferred as symbols (words)
depend on their differences and relationships with other symbols. Meaning is
influenced by the reader's social, cultural, and political context, making the
interpretation of texts, including legal texts, subjective and open to continuous
re-interpretation.

In legal interpretation, deconstruction stresses that statutes interact with other

legal texts and external factors, and that the interpretation process is not neutral.
The interpreter, influenced by personal, cultural, and ideological values, must
take responsibility for the choices made during interpretation. Deconstruction
thus challenges traditional methods like literal interpretation and emphasizes
that the meaning of a text is always disputable, evolving, and dependent on the
context and the interpreter's perspective.
(c) The linguistic turn.

The "linguistic turn" in legal interpretation emphasizes that meaning is not

inherent in a text but is created through interaction with it. It challenges the idea
that meaning can be fixed or stable at any point in time. Instead, meaning is
fluid and open to countless interpretations, influenced by the complexities of
language. This perspective encourages critical thinking about how language
shapes legal understanding and interpretation, highlighting that the potential for
meaning is limitless.

3. Discuss the South African theories of interpretation:

a) The orthodox text-based approach.

The orthodox text-based approach to statutory interpretation focuses on the

literal meaning of the text. If the wording is clear, it is considered equivalent to
the legislature’s intention. If the literal meaning is ambiguous or leads to absurd
outcomes, the court may depart from it, using secondary aids like the statute’s
title or language. Courts only refer to tertiary aids (e.g., common-law
presumptions) when these other methods fail.

This approach, rooted in English law, was adopted in South Africa due to British
influence. It emphasizes legal positivism, the separation of powers, and
parliamentary sovereignty, limiting the court's role to interpreting, not making,
law. Critics argue that this method overlooks context and the broader legal
framework, leading to a mechanical and rigid interpretation. Despite this, it
remains prevalent in South African law, although post-1994, there has been a
shift towards more flexible and contextual interpretations.
b) The text-in-context approach.

The text-in-context approach to statutory interpretation emphasizes the purpose

or legislative scheme behind the law, rather than solely focusing on the literal
text. It considers both the social and political context of the legislation,
acknowledging external aids such as common law and the defects the legislation
aims to address. The purpose of the law guides the interpretation process from
the outset, not just when a literal interpretation fails.

This approach gained prominence in South Africa, starting with the mischief
rule, and became more widespread in the 1970s. It allows for a more flexible
judicial role, where courts may adapt the meaning of the text to align with the
law’s purpose, as long as the scope of the legislation supports such
modification. Courts use a variety of interpretive aids, including common-law
presumptions, to ensure the legislation’s purpose is properly understood and
applied. This approach reflects a more dynamic, law-making function for the
judiciary in statutory interpretation.

c) The influence of the Supreme Constitution.

Since the adoption of South Africa’s 1996 Constitution, statutory interpretation

must be conducted within its framework, making prior debates over text-based
versus context-based interpretation less relevant. The Constitution is the
supreme law, and its values—such as human dignity, equality, and freedom—
must guide all legal interpretation. Key provisions of the Constitution, such as
Section 39(2), require courts to interpret statutes in a way that promotes the
spirit and objectives of the Bill of Rights.

The Constitution's supremacy (Section 2) means that all law, including statutes,
must align with constitutional values. Courts must consider the broader
constitutional context, including human rights protections, when interpreting
laws, moving beyond a mechanical, literal approach. While some courts have
clung to traditional methods, the prevailing approach is that all legislation must
be interpreted with a focus on advancing democratic values and human rights,
reflecting the transformative goals of the post-apartheid Constitution.

4. Analyse the practical, inclusive method of interpretation

The practical, inclusive method of interpretation offers a holistic approach to

statutory interpretation, addressing both textual and contextual elements. It
rejects a rigid, step-by-step, mechanical process and instead emphasizes a
comprehensive, interrelated methodology.

Key components include:

1. Language and Syntax: Recognizing the importance of grammatical

structure and linguistic meaning in the text, without reverting to
literalism.

2. Structure and Context: Viewing a provision in relation to the entire

legislative text and considering the social and political context in which it
operates, ensuring a holistic understanding.

3. Teleological Interpretation: Evaluating the purpose of the legislation

against constitutional values, aligning with Section 39(2) of the
Constitution, which stresses human rights and democratic values.

4. Historical Context: Incorporating the legislative history and motivations

behind the law, including the mischief rule and prior legislative
frameworks.

5. Comparative Aspect: Considering how foreign courts and international

law have interpreted similar laws, providing broader perspectives.
This method integrates all these factors to guide interpretation, emphasizing
flexibility, balance, and an awareness of both the form and substance of the law.
It aligns with constitutional values and provides a comprehensive framework for
dealing with the complexities of statutory interpretation.