Judicial approaches to meaning in the interpretation of statutes

266 Pages·2012·11.03 MB·English

by  A. A. Farrar

JUDICIAL APPROACHES TO HEANING
IN THE INTERPRETATION OF STATUTES
A thesis submitted in fulfilment
of the requirements for the Degree
of
Master of Laws
in the
University of Canterbury
by
A. A. Farrar
~
University of Canterbury
1982
i
I~ 3
II. 10
1" Introduction 10
2" Vords As Symbols 11
3 ~ Referential Theories of l"leaning 15
h. Ideational Theories of ]vIe 17
5. Contextual Theories of £I1e 20
6. Is Reconciliation Possible? 29
"
III. 31
1. Introduction • .")1
2. Words As Units of Me • 32
3Q 'Clear' Meaning and Context .. 36
IV.
1. Introduction .. 43
"
2. Ambiguity 45
(1) Lexical Ambi ty 46
(a) Polysemy .. 1l-6
(b). Homonymy lj·8
(2) Syntactic Ambiguity 50
(3) Contextual Ambiguity .. .. 53
3. Vagueness .. 57
(1) Description and Illustration of
Vagueness' .. 57
(2) Distinction Between Vagueness and
Other Forms of Linguistic Uncertainty 60
(3 ) Vagueness As A Desirable Feature
of Legal Language .. 61
(4) Is Absolute Precision Possible:
Definition and the Possibility of
Vagueness 64
4. Generality 69
V. }fea1"l;;tng aJ}d Clas s ifica tion 71
1. Introduction: Classification and the
Concept of 'Class' 71
2. Types of Classif"ication c 7h
(1) Lo cal Classification 74
(2) Analogical Classification c 75
3. Definition • 76
(1) General Theory 76
(2) Definition Sections Q 82
Page
(\ ~,./ ) n.-,..~).~ ctJj. ong,-,-rVJ Definitions
4. Classification and Statutes
VI. 95
VII.
VIII.
108
1. The Literal Hule 108
2. The Golden Ru.le 111
3" The Mischief' Rule 1 1lJ·
IX. The C~nons ~ De,j;ailed Cri tiqu~ 117
1. The Literal Rule
" 117
2. The Golden Rule 137
3. The fHschief Rule 1 L~ 7
"
The Canons: Hodern Ac"!.demic Reforrr~ula tioY1 155
XI. The P:r;-esumptions 160
XII •. Section 5 Ln and Its Relationship with
the Canons •
XIII. Internal and External Context and the
Extrinsic Evidence Exclusi(;ll Hule 171
- - ..
1. Introduction " 171
2. The Present Position 171
(1) Internal Context 171
"
(2) External Context • 175
(a) General Baclcground 176
"
(b) Legal Background • 179
(c) The Legislative History 183
(i) Pre-Parliame~tary Materials 183
(ii) Parliamentar-;: Haterials • 186
(iii) The Extent To 1Vhich Inter-
national ements May Be
Considered in the Interpret-
ation of Domestic Acts 188
3. Policy O'" 190
( 1) Conformi tyto tI:: e t Ordinary Neaning I
of Language 191
(2) Derogation From the Court's Powers 192
(3) Derogation From the Sovereign
1
1 9L~
A-v"ailabili
1
Reliabili 199
1'ime al'lcl 201
Greater 201
4. Some Proposed JJ..efo~rm s ;~02
(1) Internal Context 2()2
( :~:..\..) .~.l.:.y:.t~ +V'a-'..~L.l_..L~c:!1...! - Cc\-.l,.~ .~ ,e . yi_._- ._ 203
5. Crit and Conclusions • 207
XIV. 213
Introduction 225
---------
XV. .. .. 226
1 .. Purpose of' Survey .. 226
"
2. IVlethod .. 226
"
3 .. Problems ., .. 229
4. Analysis ..
" • 230
Q..~lusions .. .. 237
"
postscrip! .. • .. 252
Bibliogr~J?l:!x .. • .. 253
i
Statutes are a written communication between
Parliament and the Ie slative ciud ence.
ation is the process W}l slative audience
seeks to understand and there govern its actions
dictates of Parliam~nt. Judicial interpretation occurs
only when there has been some breakdown in this process -
either Parliament failed to express its 'ideas clearly
or those ideas are inc Ie of precise expression. A
broad aim of thi~ thesis is to examine the functioning of
language and the communication process llith a view to
understanding more -clearly the nature of meaning and its
ascert"ainment~ An analysis will be made of those features
of language giving rise to uncertainty and so to the
problem case of interpretationo An analysis will also be
made of the nature of linguistic certainty; it is hoped
that a better understanding of the edients of success-
ful communication "dll eventual lead to the reduction of
statutory doubt. Next the theory of judicial interpretation
will be considered and its correspondence to accepted
linguistic theory assessed e ParticUlar emphasis ,.;ill be
placed on a discussion of the adequacy of the tra&tional
canons. Finally judicial practice will be considered by
means of a survey conducted from two years of the New
Zealand Law Reports. The results from this survey will
then be compa:red with earlier findings from the thesis~
Conclusions of a general nature will be drawn; in particular
it ~ill be submitted that a shift in the dominant
igm icable to the construction of statutes is
presently under way in New Zealand. The traditional
canons are being replaced by a more unified and consistent
igm whose features include liberalisation 0 the
literal rule to encompass consideration of context,
the statutory purpose~ and e icit sion
for assessment of consequences. igrn is
more a d aqua +v- e tl: lan t,'n e t- rad ::L '1',.',1'0'n'a.'L canons an.r1l S,- er--~f: .'..;. o~n- S( <iJ )'
both as a source of reasons for me and re21sons for
decision"
1
PART A: UNDERSTANDING MEANING
INTRODUCTION
A distinction is ~requently made between two stages
in the interpretative process, interpretation and
application. 'Interpretation' is concerned principally
with the ascertainmento~ statutory meaning; 'application'
with the relationship o~ that meaning to the ~acts o~ a .
case. I~ one can accept such a distinction, this thesis
can be described as having as its primary concern an
analysis o~ the~ormer •. Its broad aim is to clari~y and
analyse judicial approaches to the ascertainment o~
statutory meaning.
Broadly speaking, statutes are a ~orm o~ communic-
ation between Parliament and the legislative audience.
In their modern day ~orm they operate through the medium
o~ written language and are subject to the normal
functioning. o~ the English language. In Part A, there-
~ore, we shall attempt to understand something o~ the
semantic and philosophical nature o~ meaning. Because
all success~ul communication is dependent upon an element
of linguistic certainty, we will look at what makes
meaning 'clear'. And because interpretation always arises
in the context o~ some dispute arising ~rom the break-
down o~ the statutory communication, we , .. ill look at
linguistic uncertainty and its potential ~or giving rise
to the problem case. Finally, we will look at
classi~ication and its relationship to meaning. In
2
theory 'classification' can relate either to the definition
of statutory terms or to the application of that defintion
to the facts of a case. But as in the latter sense
classification in fact provides a more precise definition
of statutory terms, the distinction is by no means clear-
cut. Indeed, the same can be said of the interpretation/
application distinction- itself. On closer examination
the distinction largely appears to be an artificial one
devised for ease of analysis by legal commentators.
Judicial practice does not reflect any such clear.
distinction. 'Meaning' is an ambiguous term which relates
to 'scope' as well as to 'sense'. Before going on to a
consideration of judicial approaches to meaning, we must
attempt to understand something more about meaning itself.
3
CHAPTER I
THE MEANINGS OF MEANING
The word 'meaning' is perhaps one of the most
ambiguous words in the English language. It is used in
a wide range of contexts in several different senses.
C.K. Ogden and I.A. Richards in their book 'The Meaning
of Meaning' list as many as twenty-two definitions of
1
the word. Among them they include:
an intrinsic property
the other words annexed to a word in the dictionary
the connotations of a word
that to which the user of a symbol actually refers
that to which the user of a symbol ought to be
referring
that to which the user of a symbol believes
himself to be referring
that to which the interpreter of a symbol
(a) refers
(b) believes himself to be referring
(c) believes the user to be referring
Much of the conflict between these definitions
is explicable by reference to the ~urpose for which
they are formulated. Spe?ialists in different fields
feel the need to tailor the study of meaning to the
2
requirements of their own discipline. This will be
1. C.K. Ogden and I.A. Richards, 'The f..1eaning of }'fearting'
(1923) pp. 186-7.
2. G. L.eec11.,.' Semantic s " p. 4. "So, a philospher may
define meaning for his purposes in terms of truth
and falsehood; a behaviourist psychologist in terms
of stimulus and response; a literary critic in terms
of the reader's response; and so on. ."
4
illustrated more clearly in the following chapter in
which we look at some of the many different theories as
I
to what meaning actually is. '1hatever the reasons for
the multiplicity of definitions, there~can be no doubt
about the problems they cause. Confusion or misunderstand-
ing often arises in discussions concerning meaning as a
consequence of fundamental disagreement about the term
itself. The situation is probably made worse by problems
of demarcation. The several meanings are often inter-
connected, and shade into one another in various ways.3
It would be foolish to commence a discussion of
judicial approaches to meaning with any false idea that
the 'meaning' referred to is a simple and easily definable
concept. Likewise, it would be a mistake to attempt any
precise definition of 'meaning' before discussion of
4
the subject begins. The formulation of such a definition
could well be an impossible task; it is extremely unlikely
that all judicial statements concerning 'meaning' use
the term in precisely the same way. We must be content
with letting the meaning of 'meaning' as used by the
judiciary emerge from the study itself. However, {t is
~ossiblet indeed desirable, to consider in advance the
varieties of meaning with most rel'evance to the lawyer.
One relevant categorisation is the distinction between
5
intended, comprehended and ordinary meaning.
Broadly speaking, communication consists of the
3. J. Lyons, 'Language, Meaning and Context', p. 15.
4. Compare the approach of G. Leech op. cit. p.4.
5. See G. 'iilliams 'LanguFige and the Law' 61 L.Q.R. 71
at 390.