The agenda for legislative-text interpretation and the epoch of constitutionalism in South Africa
This article deals with the new demands that the advent of an era (or epoch) of constitutionalism places on the agenda o f statutory and constitutional interpretation(i.e. legislative or enacted law-text interpretation) in South Africa. Three central motifs guide the discussion:
• A self-dependent legislative text with an inherent, fixed meaning does not exist. • The characteristic operational intent of the text genre limits the multifarious possible meanings of an enacted law-text. This confronts its interpreter with an inescapable responsibility to choose a particular meaning.
• The epoch of constitutionalism inevitably places a transformational subversion of certainties regarding statutory interpretation on the agenda of innovative legislative-text interpretation.
The jurisprudential applicability of mainly three interpretative narratives is considered, namely reflective rhetoric, deconstruction and philosophical hermeneutics. First, the necessity for a new terminology is considered. Legislative-text interpretation is advanced as the appropriate term designating statutory as well as constitutional interpretation. Despite their dissimilarities, statutory texts and the constitutional text have enough in common to be grouped together as "legislative texts ”, a sub-genre of law-texts in general. Second, some of the crucial assumptions of the common-law (literalist-cumintentionalist) approach to statutory interpretation are subjected to critical scrutiny. The concept "intention of the legislature” is looked at in both an optimally positive and an optimally negative way. Third, the significance for legislative-text interpretation o f insights gleaned from contemporary philosophies o f interpretation, is considered These insights are the following:
Insight 1: A standard interpretation of law texts that assumes that they are independent bearers of authority and that they derive from accepted meanings of legal concepts masks the perpetuated hegemony of dominant classes/groups/ categories in society, with an unfounded appeal to an illusory neutrality and impartiality o f the law.
Insight 2: Language, as a complex system, is the source and guide of and operational space for all meaning.
Insight 3: Meaning can only be meaning-in-context.
Insight 4: Our pre-understanding not only shepherds our understanding but makes it possible. The deeper an assumption is hidden, the more intense and far-reaching is its effect on our understanding.
Insight 5: The (possible) applications of a provision of a legislative text, always pilot its interpretation. Such provision can never be understood in isolation from, or irrespective of its possible applications.
The article concludes by taking stock of the unfounded certainties about statutory interpretation it has sought to undermine and suggests the exploration of an approach to law-text interpretation that honours both the concerns of present-day philosophies o f understanding and jurists’ responsibility to opt for text-meanings that will optimise justice.
- Ownership of copyright in terms of the Work remains with the authors.
- The authors retain the non-exclusive right to do anything they wish with the Work, provided attribution is given to the place and detail of original publication, as set out in the official citation of the Work published in the journal. The retained right specifically includes the right to post the Work on the authors’ or their institutions’ websites or institutional repository.
Publication and user license
- The authors grant the title owner and the publisher an irrevocable license and first right and perpetual subsequent right to (a) publish, reproduce, distribute, display and store the Work in any form/medium, (b) to translate the Work into other languages, create adaptations, summaries or extracts of the Work or other derivative works based on the Work and exercise all of the rights set forth in (a) above in such translations, adaptations, summaries, extracts and derivative works, (c) to license others to do any or all of the above, and (d) to register the Digital Object Identifier (DOI) for the Definitive Work.
- The authors acknowledge and accept the user licence under which the Work will be published as set out in https://creativecommons.org/licenses/by/4.0/ (Creative Commons Attribution License South Africa)
- The undersigned warrant that they have the authority to license these publication rights and that no portion of the copyright to the Work has been assigned or licensed previously to any other party.
Disclaimer: The publisher, editors and title owner accept no responsibility for any statement made or opinion expressed by any other person in this Work. Consequently, they will not be liable for any loss or damage sustained by any reader as a result of his or her action upon any statement or opinion in this Work.
In cases where a manuscript is NOT accepted for publication by the editorial board, the portions of this agreement regarding the publishing licensing shall be null and void and the authors will be free to submit this manuscript to any other publication for first publication.
Our copyright policies are author-friendly and protect the rights of our authors and publishing partners.