IOS2601 | Semester 01 | Assignment 01
QUESTION 1
1.1 LIST the main grounds (at least five) on which the textualist approach to
interpretation may be criticized. (5)
In the first instance, the normative role of the common-law presumptions during the
interpretation process is reduced to a mere ‘last resort’, to be applied only if the
legislative text is ambiguous. Another point of criticism of this narrow approach is that
words (their literal meaning) are regarded as the primary index to legislative meaning.
According to the court in R v Hildick-Smith there is only one kind of interpretation with
one definite object, and that is to ascertain the true intention of the legislature as
expressed in the Act.
Other important internal and external aids to interpretation, which could be applied to
establish the meaning of text-in-context, are ignored. The context of the legislation is
only used if the text is not clear. Unless the textual meaning is ambiguous or unclear,
the interpreter will not have recourse to the wide range of aids to interpretation at his
disposal. As a result, the ‘intention of the legislature’ is ultimately dependent on how
clear the language used in the legislation may be to the particular court.
Very few texts are so clear that only one final interpretation is possible. The mere fact
that a discipline such as interpretation of statutes exists would, by implication, suggest
that legislation is seldom clear and unambiguous.
The text-based approach leaves very little room for judicial law-making, and the courts
are seen as mere mechanical interpreters of the law. This view creates the impression
that once the legislature has spoken, the courts cease to have any lawmaking function.
1.2 DEFINE what interpretation by implication means and then LIST the five (5)
main grounds of extension by implication. (7)
, Interpretation by implication involves extending the textual meaning on the ground of
a reasonable and essential implication, which is evident from the legislation. There are
various grounds on which the provisions of the legislation may be extended by
implication:
• Ex contrariis: Here the implications arise from opposites. If the legislation
provides for a particular circumstance, by implication it provides the contrary
provision for the opposite circumstance.
• Ex consequentibus: If legislation demands or allows a certain result or
consequence, everything which is reasonably necessary to bring about that
result or consequence may be implied.
• Ex accessorio eius de quo verba loquuntur: If a principal thing is forbidden or
permitted, the accessory thing is also forbidden or permitted.
• Anatura ipsius rei: This refers to implied inherent relationships—for example,
the power to issue a regulation implies the power to withdraw it.
• Ex correlativis: This arises from mutual or reciprocal relationships (eg
prohibiting the purchase of certain things includes the prohibition of the sale of
such goods).
1.3 NAME five (5) generally accepted methods of constitutional interpretation.
(5)
1. Grammatical interpretation (Important role of language), which focuses on linguistic
and grammatical meaning of words, phrases and sentences.
2. Systematic/contextual interpretation which concentrates on the meaning of a
specific provision in the context of the whole text (an holistic approach). Intra and extra
textual aids are often used.
3. Teleological interpretation (Fundamental constitutional values, value orientated
interpretation). The aim and purpose of the provision must be ascertained against
fundamental rights and the constitutional values must be taken into consideration.
4. Historical interpretation refers to the historical context of the legislation, the mischief
rule, the history of the legislation but it cannot be a decisive factor when determining
the final meaning of the text.
QUESTION 1
1.1 LIST the main grounds (at least five) on which the textualist approach to
interpretation may be criticized. (5)
In the first instance, the normative role of the common-law presumptions during the
interpretation process is reduced to a mere ‘last resort’, to be applied only if the
legislative text is ambiguous. Another point of criticism of this narrow approach is that
words (their literal meaning) are regarded as the primary index to legislative meaning.
According to the court in R v Hildick-Smith there is only one kind of interpretation with
one definite object, and that is to ascertain the true intention of the legislature as
expressed in the Act.
Other important internal and external aids to interpretation, which could be applied to
establish the meaning of text-in-context, are ignored. The context of the legislation is
only used if the text is not clear. Unless the textual meaning is ambiguous or unclear,
the interpreter will not have recourse to the wide range of aids to interpretation at his
disposal. As a result, the ‘intention of the legislature’ is ultimately dependent on how
clear the language used in the legislation may be to the particular court.
Very few texts are so clear that only one final interpretation is possible. The mere fact
that a discipline such as interpretation of statutes exists would, by implication, suggest
that legislation is seldom clear and unambiguous.
The text-based approach leaves very little room for judicial law-making, and the courts
are seen as mere mechanical interpreters of the law. This view creates the impression
that once the legislature has spoken, the courts cease to have any lawmaking function.
1.2 DEFINE what interpretation by implication means and then LIST the five (5)
main grounds of extension by implication. (7)
, Interpretation by implication involves extending the textual meaning on the ground of
a reasonable and essential implication, which is evident from the legislation. There are
various grounds on which the provisions of the legislation may be extended by
implication:
• Ex contrariis: Here the implications arise from opposites. If the legislation
provides for a particular circumstance, by implication it provides the contrary
provision for the opposite circumstance.
• Ex consequentibus: If legislation demands or allows a certain result or
consequence, everything which is reasonably necessary to bring about that
result or consequence may be implied.
• Ex accessorio eius de quo verba loquuntur: If a principal thing is forbidden or
permitted, the accessory thing is also forbidden or permitted.
• Anatura ipsius rei: This refers to implied inherent relationships—for example,
the power to issue a regulation implies the power to withdraw it.
• Ex correlativis: This arises from mutual or reciprocal relationships (eg
prohibiting the purchase of certain things includes the prohibition of the sale of
such goods).
1.3 NAME five (5) generally accepted methods of constitutional interpretation.
(5)
1. Grammatical interpretation (Important role of language), which focuses on linguistic
and grammatical meaning of words, phrases and sentences.
2. Systematic/contextual interpretation which concentrates on the meaning of a
specific provision in the context of the whole text (an holistic approach). Intra and extra
textual aids are often used.
3. Teleological interpretation (Fundamental constitutional values, value orientated
interpretation). The aim and purpose of the provision must be ascertained against
fundamental rights and the constitutional values must be taken into consideration.
4. Historical interpretation refers to the historical context of the legislation, the mischief
rule, the history of the legislation but it cannot be a decisive factor when determining
the final meaning of the text.
