L du Plessis1 1 Introductory observations



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Theoretical (dis-) position and strategic Leitmotivs IN CONSTITUTIONAL INTERPRETATION IN SOUTH AFRICA

L Du Plessis1

1 Introductory observations

The constitutional makeover of a dilapidated South African state called for inimitable political prudence and integrity, and for courageous, ethical statesmanship rising above chancy brinkmanship. This essay zooms in on aspects of the historic restoration that bequeathed this country and its people a prototypical, justiciable Constitution. It is trite that a Constitution stands for the advancement of "the good" and the suppression of "evil". This clichéd truism bears regular reiteration as a reality check, to remind us of how easily benevolent governance can lose its footing on the slippery slopes of thuggish misgovernance and maladministration.

The commitment to substantial constitutionalism saw South Africa efflorescing as a champion for constitutional democracy. The Jacob Zuma regime has, however, in the meantime generously and audaciously contributed to blemishing South Africa's favourable but still vulnerable reputation. Setbacks notwithstanding, the authority of the Constitution and the integrity of constitutionalism have survived so far, while the incursive endeavours of legislatures and the executive more often than not miscarried, owing to bold judicial intercession (when appropriate) and a vigilant civil society.

The advent of constitutional democracy in South Africa has brought about a revolution in the field of the interpretation of enacted law, that is, law made by demonstrable, constitutionally authorised legislatures whose distinctive province is (or at least significantly includes) lawmaking.2 "Enacted law" consists of the supreme Constitution3 and all original (or primary) and delegated (or secondary) legislation in all spheres of government. The consequences of the interpretive revolution have been vast and very visible. Statutory interpretation in South Africa had been deficient long before the advent of constitutional democracy, but the challenge of construing a supreme Constitution, an enacted law-text beyond compare in so many respects, brought matters to a head and set off what is also referred to as a linguistic, interpretive or hermeneutical turn.

Hitherto mostly unnamed or unlabelled (but not entirely alien) interpretive strategies pursued and developed by users of the Constitution are up for discussion in the present article, with mainly the Constitutional Court under the loupe. Judges are eminent, authoritative and decidedly visible readers and expositors of the Constitution, but are not its only officially authorised exegetists. However, in the absence of a jurisprudence of interpretation attributable to judicial effort and leadership the interpretive turn would have been destined to come to naught and constitutional democracy to go awry.

The traditional, common-law theories of statutory interpretation – also manifested in and as canons of construction – emanated from and thrived on certain dominant beliefs about the interpretation of law in general and enacted law in particular. These beliefs have been challenged by judges who acknowledged more and more that anyone's interpretation of the law, including their own, draws on a pre-understanding (Vorverständnis) teeming with inarticulate premises. Presuppositions and prejudices are mental agents embedded in this Vorverständnis, engendered by, among other things, someone's life and worldview, which in its turn co-constitutes the human being in a world of cognition and experience which (s)he calls "reality". Negotiating reality compels choice, and choosing prompts positioning in and vis-à-vis reality. In scholarship and in learned professions significantly dependent on theoretical knowledge, the consolidated outcome of crucial choices instantiates someone's theoretical position or his/her philosophy.

Interpretive leitmotivs bear witness to the presence - the effectual being there - of a theoretical position. Leitmotivs recur as keynote or defining ideas, motifs or topoi lending direction to specific instances of construing law. Four leitmotivs, each pertinent to a certain constellation of events in constitutional interpretation, are discussed and their applicability and utility assessed, drawing on examples from constitutional case-law. The leitmotivs are: (i) transitional constitutionalism; (ii) transformative constitutionalism; (iii) monumental constitutionalism, and (iv) memorial constitutionalism. (i) and (ii) belong together as (A) programmatic leitmotivs and (iii) and (iv) as (B) commemorative leitmotivs. (A) is the pervasive reminder that the achievement of a negotiated transition embodied in a constitutional accord depends decisively on both well thought out strategic moves and due process, with (i) also functioning as a constitutionalism of justification. (A) furthermore measures the impact or "degree" of transition in a society on a socio-political and constitutional Richter Scale, and warns of either complacent in- or hectic over-action when reaping the benefits of constitutional democracy. (B) endeavours to make sense of the present in relation to the past, and vice versa, taking the pulse of hope for the future. It is, in other words, the leitmotiv of (the Constitution as) memory and promise.

Note below the schematic rendition of what is discussed in the text. The sequence in which arguments unfold in the discourse below is essentially but not entirely the same as in the scheme.



Schematic renditioN – INTERPRETIVE LEITMOTIVS

(A) PROGRAMMATIC LEITMOTIVS (B) COMMEMORATIVE LEITMOTIVS

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(i) Transitional Constitutionalism (iii) Monumental Constitutionalism

(ii) Transformative Constitutionalism (iv) Memorial Constitutionalism

2 Common-law theories of interpretation

Juristic use of the term "theory" is notoriously loose. Sometimes it is a synonym for "rule" or "precept", for example, the "expedition theory" in the law of contract.4 A theory is, in part, "explanatory".5 The consensus theory in the law of contract, for instance, explains that a contract stems from a concursus animorum of the parties involved.6 A theory, as an idea accounting for a situation or substantiating a course of action, is justificatory as well, advancing the principles on which the practice of an activity is based.7 The consensus theory in the law of contract, for instance, justifies a finding that in the absence of a concursus animorum, a contract has not been concluded. The conventional theories of statutory interpretation, sometimes also referred to as "interpretative approaches", are both explanatory and justificatory in this way.8 The most prominent, traditional common-law theories of statutory interpretation are:



  1. Literalism: maintaining that the meaning of an enacted provision can and must be deduced primarily from the language in which it is couched,9 thereby placing clear language on the same footing as plain or ordinary language;10 in other words, language as a native speaker would use and understand it;11

  2. Intentionalism: claiming that to discern and give effect to the intention of the legislature is the paramount rule of statutory interpretation;12

  3. Literalism-cum-intentionalism: traditionally the dominant theory of statutory interpretation in South Africa,13 premised on a combination of literalist and intentionalist assumptions;

  4. Contextualism: asserting that meaning is vitally dependent on context: only by reading an enacted provision and its words and language in context can its meaning(s) be determined;14

  5. Purposivism: looking at a particular legislative provision as part of a more encompassing instrument, and contending that meaning is to be attributed to such a provision in the light of the purpose(s) or object(s) it has been designed to achieve;15 and

  6. Objectivism: which is meant as an antidote to the subjectivism of intentionalism; it maintains that once a law has been enacted the legislature has had its say and the text assumes an existence of its own16 and must then be concretised and brought to completion, in an actual situation, by a court acting as the legislature's delegate.

None of these theories by itself can, however, adequately explain what interpretation – let alone constitutionally induced shifts in modes of and approaches to interpretation – really entails.

3 Theoretical multi-functionality

Frank Michelman17 identifies literalism, intentionalism, purposivism instrumentalism and moralism as theories of constitutional interpretation in the USA context. These theories derive from approaches to interpretation akin to our own common-law theories of statutory interpretation. Michelman says of these theories that they constitute a "kind of standard list of interpretative approaches or methods available to constitution adjudicators – from which, it's sometimes imagined, a judge chooses one (or perhaps just falls into one)".18 He is adamant that the items on the said list

... cannot be alternatives among which a judge chooses; they are multiple poles in a complex field of forces, among which judges navigate and negotiate. I don't believe that any responsible constitutional adjudicator will end up, over any interesting run of cases ignoring any of the factors: perceived verbal significations, perceived concrete intentions, perceived general purposes, perceived and evaluated social consequences, perceived and intuited normative theories or unifying visions.19

German constitutional interpretation affords a special place to five theories of fundamental rights (Grundrechtstheorien),20 namely the classical liberal theory, the institutional theory, the value theory, the democratic-functional theory and the welfare-state theory. Here too none of the theories enjoys pre-eminence in the jurisprudence of the Federal Constitutional Court, and in the circumstances of particular cases the court chooses freely which theory to rely on. Theoretical multi-functionality (Multifunktionalität), as Michael Sachs21 calls this free choosing, is in other words also a feature of German constitutional interpretation.



4 Exit literalism and intentionalism, enter constitutionalism

Constitutional supremacy as both "a constitutional fact"22 and a value23 has dealt the dominance of the literalist-cum-intentionalist theory of interpretation – in the areas of statutory and constitutional interpretation at least – a decided blow. Nowadays a statutory provision is first and most importantly to be understood not as the legislature supposedly intended it, but in conformity with the Constitution. The possible meaning of a statutory provision most compatible with the Constitution is, in other words, to be preferred:

The interpretative notion of ascertaining "the intention of the Legislature" does not apply in a system of judicial review based on the supremacy of the Constitution, for the simple reason that the Constitution is sovereign and not the Legislature.24

"All statutes must be interpreted through the prism of the Bill of Rights",25 which means that section 39(2) of the Constitution actually establishes a new canon of statutory interpretation, namely that legislation must be construed to promote the spirit, purport and objects of the Bill of Rights. This canon cannot be overridden by "legislative intent" couched in (allegedly) "clear and unambiguous language". The "intention of the legislature", in all its possible significations, will always be subject (and second) to the Constitution, and not only when a statute is (allegedly) inconsistent with a provision or provisions of the Constitution.26 The interpretive strategy helping to give specific effect to this (new) canon of statutory interpretation in section 39(2) is known as reading in conformity with the Constitution (Verfassungskonforme Auslegung).



5 The notion of a "theoretical position" in law

A theory is explanatory and justificatory at the same time. A legal interpreter's theory of interpretation causes him or her to relate, intentionally or intuitively, issues of interpretation to broader questions regarding, amongst others, the role and function of language in law and the possibility of justice through the reading and realisation of written law. It also situates interpretive endeavours in a legal and constitutional tradition within prevailing understandings of matters of interpretive consequence, such as the nature and the division of power (reflected in, for example, trias politica) and the role appropriate to authorised (judicial and other) interpreters of the law in the system. An approach to interpretation is premised on and shaped by theoretical assumptions about the crucial matters just mentioned and by numerous other matters too. In constitutional interpretation these matters may, for instance, manifest in what Michelman calls "an emergent national sense of justice to which ... interpretations ... recursively" contribute.27

When the notion "theory of constitutional interpretation" is thought of as a position based on assumptions about the crucial matters mentioned above, it becomes clear why one-word depictions and one-sentence definitions – all parading as "theories" of or "approaches" to constitutional interpretation – are by themselves inadequate explanations of and justifications for "constitutional interpretation" in its complexity. Literalism, intentionalism and contextualism, for instance, cannot be theories of constitutional (or statutory) interpretation, but are at most elements of theoretical positions.

A theoretical position, pertinent to constitutional interpretation, is determined by the assumptions referred to above and it is a constitutional interpreter's theoretical position, rather than any specific conventional approach to (or common-law theory of) interpretation on which (s)he may rely that co-determines interpretive outcome.28 To make an assumption involves making a choice. Theoretical positions on constitutional interpretation coming from choices thus made therefore order and rank (or hierarchize) interpretive preferences.29

A theoretical position, which is a theoretical disposition at the same time, is not in its entirety rationally or even consciously decided on. "Jurists in practice" (including judicial officers), especially, do not habitually devote time to reflect specifically on (and explain or justify) their theoretical positions, which mostly become discernible in the arguments they rely on to justify specific interpretive outcomes.30 A theoretical position may nonetheless be reflected on, contested, defended, explained and (also consciously) changed. It may also be shared with others although, due to the uniqueness of each individual, no two theoretical positions can probably be identical in every detail. A theoretical position is constituted by multifarious interacting factors and forces, some of which result from conscious, reasoned choice, while others derive from intuitive perception. Covert and subconsciously held (theoretical) assumptions, precisely because of an interpreter's uncritical unawareness of them, often have a more decisive impact on interpretive outcome than overt and consciously reasoned assumptions.31

A nation's judiciary cannot assume a theoretical position en bloc on issues of constitutional (or statutory) interpretation. The theoretical position of an individual judge may, as a matter of fact, vary from case to case depending on the measure of latitude that the law and the canons of construction allow for deciding the specific issues in a case.32 However, it is possible that, within a given jurisdiction or tradition, a theoretical position of a certain kind may dominate how interpreters of a constitution (and of statutes and other law too), especially the judges and legal practitioners, approach their task. An overriding theoretical position may in time even become a template for additional (or auxiliary) positions on and approaches to interpretation.33 Literalism-cum-intentionalism has long held a dominant position in statutory interpretation in South Africa,34 with contextualism and purposivism mostly in auxiliary or secondary roles. The belief, growing in popularity, that since the advent of constitutional democracy in South Africa purposivism has been replacing literalism-cum-intentionalism as the template approach – definitely in constitutional interpretation, but increasingly so in statutory interpretation too – is not unproblematic.35 It is a misapprehension that reliance on a single preferred approach to (constitutional or statutory) interpretation can eventually "make all the difference". Since 1994 it has mainly been "an emergent [new] national sense of justice" (à la Michelman)36 – and not any particular interpretive approach – that has navigated constitutional and statutory interpretation in South Africa along previously unexplored pathways.




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