Abstract
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.
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