Unravelling complexities of legal interpretation (2)

Legal practice is to a large extent ethically ambivalent.

Our oath is to fearlessly defend our clients. But there is a strong caveat - lawyers are at the same time officers of the court and, by extension, officers of the state.

So they have a duty to seek to preserve the original intention of any law whilst acting honestly at all times.

The incidence of interpretation is inevitable in any legal scenario because ultimately, laws are fundamentally a collection of written and unwritten rules.

All laws, constitutions, contracts, Acts of Parliament, byelaws, etc. are, by definition and nature, inevitably incomplete.

This is because they are primarily executed to govern future behaviour. They cannot foresee or anticipate every future eventuality.

Courts and other adjudicatory bodies are, therefore, needed to interpret or explain the already codified texts of the documents (constitution, contract, Act of Parliament); i.e. explain the meaning or context in the original document. Herein lies the origin of legal interpretation.

As alluded to in last week’s article, there is no ONE universally accepted way of legal interpretation.

Should that have been the case, there would never be room for different arguments to a set of any given facts.

As there are various theories which have emerged in legal interpretation, especially constitutional interpretation, the final decision invariably would be skewed towards the interpretational school the adjudicators adopt.

Frequently deployed

The frequently deployed constitutional interpretation theories are: originalism, textualism, pragmatism, historical context, tradition, judicial precedent, etc.

The originalists believe that the Constitution must be interpreted with reference to what was understood to be the meaning at the time of its adoption.

According to this theory of interpretation, lawyers are bound by the meaning of the words on the adoption of the Constitution.

So things like background events, public debates and relevant texts prevailing at the time of adoption are some of the cannon fodder for the Constitution’s interpretation.

There is also the constitutional theory known as textualism - a theory of constitutional interpretation which focuses on the plain meaning of the text ie the meanings attached to the text at the time of adoption.

Constitutional interpretation

Other jurists subscribe to the constitutional interpretation of pragmatism, i.e. the balancing of the various interpretative meanings available and choosing the interpretation which best suits the society concerned.

Another school of constitutional interpretation is the moralists. 

These scholars, many of enthusiasts, posit that certainmoral concepts underpin certain constitutional terms, eg. ‘equal protection’ or ‘non-discrimination’.

These, according to them, are sacrosanct and should inform any interpretation problem that will arise.

Evolutionists

There are also evolutionists who, by and large, insist that the Constitution is a living document and as such should be interpreted according to contemporary meanings.

To them, the original meaning or practice at the time of adoption should be modified to reflect current views.

For example, evolutionists will argue that equal protection and non-discriminatory clauses should be construed to benefit LGBTQ+ people, as the logical meaning could only be that all persons are equal, irrespective of sexual, racial, or ethnic background.

There are other theories, including judicial precedent – courts following previous decisions – which cannot be exhausted here, given the constraints of space. But the point being made is that there is no one right way of constitutional interpretation.

If you are confused thus far, do not despair, as you are not alone. That is the reality and all one can do is to push and strive for the view one subscribes to, for that view to be the prevalent one.

No wonder that Dick the Butcher in Shakespeare’s “Henry VI” said, “Well, the first thing we do is, let’s kill all the lawyers.” This quote has long been used to disparage lawyers.

Applying

Applying all the foregoing to why different judges can come to different interpretations as a result of whichever theory of interpretation they subscribe to, it can be seen why there's been such a brouhaha as to what the interpretation should be in the recent Supreme Court case.

The textualists might seek to interpret the meaning of “shall vacate the seat” in a literal way. Some, as the Supreme Court held, might interpret it to mean “shall vacate the seat... in a future parliament”.

Also, some would insist that context matters while others would have preferred that precedence is adhered to. All of which will lead to different interpretations of the same words “....shall vacate”. With this, I leave you to your own interpretation. Adieu

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com