Theme 4:
The orthodox text-based approach and
the Text-in-context approach
,Index:
1. Index 2
2. Orthodox Text-based Approach 3
3. Text-in-context Approach 4
4. Question on approaches 5 – 10
5. Theme 5: The five interrelated dimensions of interpretation 11 – 13
6. Language Dimension 14 – 36
7. Context and Structure Approach 37 – 55
8. Value-Laden Dimension 55 - 69
9. Historical Dimension 70 - 92
10. Comparative Dimension 93 - 100
,Orthodox Text-based Approach
Orthodox text-based approach
The primary rule of the orthodox (literal) text based approach is that
if the plain or ordinary meaning of words in the legal text is unambiguous, then this clear
meaning is the intention.
An ordinary citizen may rely on the everyday meaning of legislation; therefor the courts may not
proceed beyond the plain meaning of the text.
A dictionary must firstly be used to settle interpretive questions.
The ‘golden rule’ of interpretation is that if the ‘plain meaning’ of words are ambiguous (there
exists more than one meaning of the word, in question, in the dictionary), vague or misleading or
if the strict literal interpretation would result in absurdity (Venter v R), then the court may deviate
to avoid such absurdity.
The court will then turn to ‘secondary aids’ to interpret the intention of the legislator. ‘Secondary
aids’ are the long title of the statute, headings of chapters and sections, and the text in the other
official language etc. If the ‘secondary aids’ also do not lead to a satisfactory result, then the
court may refer to tertiary aids to interpretation. These tertiary aids are common law
presumptions that may be used. In these cases, the court will concedes that it cannot determine
what is intended by the legislature and that it will its own assumption about what the legislature
has intended.
, The purposive (text-in-context) approach
Even before 1994, the purposive approach was applied by the courts from time to time.
This approach dates back to 16th century English law and has resulted in a number of important minority
judgments. The purpose of the legislation is the most important factor in terms of the text-in-context app
The law-text in context of surrounding circumstances, as well as social and political considerations, is take
account.
The most important rule of the contextual approach is the so-called mischief rule.
In Construction of Statutes, Elmer Driedger defines the mischief rule as follows: “A statute is to be so cons
as to suppress the mischief and advance the remedy, thus giving the courts considerable latitude in achiev
the objective of the legislature despite any inadequacy in the language employed by it.”
The context can be researched by considering the legal position before the legislation, the legal problem t
existed, the new solutions brought about by the statute and the reasons for the new legislation. The
contextual approach differs from the literal approach in the following respects:
The wider context may be considered form the start.
It does not matter of how unambiguous or ambiguous the grammatical meaning of the text is, the surrou
background must be considered to determine the context.
The orthodox text-based approach and
the Text-in-context approach
,Index:
1. Index 2
2. Orthodox Text-based Approach 3
3. Text-in-context Approach 4
4. Question on approaches 5 – 10
5. Theme 5: The five interrelated dimensions of interpretation 11 – 13
6. Language Dimension 14 – 36
7. Context and Structure Approach 37 – 55
8. Value-Laden Dimension 55 - 69
9. Historical Dimension 70 - 92
10. Comparative Dimension 93 - 100
,Orthodox Text-based Approach
Orthodox text-based approach
The primary rule of the orthodox (literal) text based approach is that
if the plain or ordinary meaning of words in the legal text is unambiguous, then this clear
meaning is the intention.
An ordinary citizen may rely on the everyday meaning of legislation; therefor the courts may not
proceed beyond the plain meaning of the text.
A dictionary must firstly be used to settle interpretive questions.
The ‘golden rule’ of interpretation is that if the ‘plain meaning’ of words are ambiguous (there
exists more than one meaning of the word, in question, in the dictionary), vague or misleading or
if the strict literal interpretation would result in absurdity (Venter v R), then the court may deviate
to avoid such absurdity.
The court will then turn to ‘secondary aids’ to interpret the intention of the legislator. ‘Secondary
aids’ are the long title of the statute, headings of chapters and sections, and the text in the other
official language etc. If the ‘secondary aids’ also do not lead to a satisfactory result, then the
court may refer to tertiary aids to interpretation. These tertiary aids are common law
presumptions that may be used. In these cases, the court will concedes that it cannot determine
what is intended by the legislature and that it will its own assumption about what the legislature
has intended.
, The purposive (text-in-context) approach
Even before 1994, the purposive approach was applied by the courts from time to time.
This approach dates back to 16th century English law and has resulted in a number of important minority
judgments. The purpose of the legislation is the most important factor in terms of the text-in-context app
The law-text in context of surrounding circumstances, as well as social and political considerations, is take
account.
The most important rule of the contextual approach is the so-called mischief rule.
In Construction of Statutes, Elmer Driedger defines the mischief rule as follows: “A statute is to be so cons
as to suppress the mischief and advance the remedy, thus giving the courts considerable latitude in achiev
the objective of the legislature despite any inadequacy in the language employed by it.”
The context can be researched by considering the legal position before the legislation, the legal problem t
existed, the new solutions brought about by the statute and the reasons for the new legislation. The
contextual approach differs from the literal approach in the following respects:
The wider context may be considered form the start.
It does not matter of how unambiguous or ambiguous the grammatical meaning of the text is, the surrou
background must be considered to determine the context.
