THEORETICAL FOUNDATIONS ARE A PARTICULAR FIELD OF STUDY OR PRACTICE, THEY CAN BE USED TO EXPLAIN AN OBSERVED PHENOMENA, TO GENERATE HYPOTHESIS AND TO GUIDE RESEARCH
{Note: The summary herein is based on Unit 5 of the Module Guide (Chapter 5 of the
textbook). These notes are designed to assist students in making sense of the content
of the Unit as well with the important concepts and cases. This summary is not a
complete set of notes and students must supplement this summary with their own
reading from the textbook, case law and the recommended reading list.
Recommended & Further Reading: Patterson, D (2010) A Companion to Philosophy
of Law and Legal Theory Blackwell Publishing & Wacks, R (2006) Philosophy of Law:
A Very Short Introduction Oxford University Press}
Introduction
In this Unit, we will have a look at the theoretical foundations that underpin the
jurisprudence of interpretation. In other words, we will consider the different ways in
which legislation (or law more generally) can be read, understood and analysed. In
essence we are “thinking about how to think” about legislation (or legal concepts).
There are three main overarching theories that we will focus on: hermeneutics, modern
critical theories and South African theories which encompasses traditional and
constitutional approaches to interpretation. It is however important to note that an in
depth discussion on legal theory/jurisprudence cannot be comprehensively covered in
this module. It would be more appropriate to have this discussion in a jurisprudence
module. The discussions presented in these notes are brief and precursory. Detailed
discussions can be found in the sources listed above.
A Note on Legal Theory
A basic understanding of theory is essential to understanding its place in law, its nature
and how it influences interpretation. The phrase ‘legal theory’ (sometimes also referred
to as ‘jurisprudence’ or ‘legal philosophy’) is often used to denote theoretical enquiries
about law ‘as such’ that extend beyond the boundaries of law as understood by
professional lawyers. Legal theory seeks to assist us in defining what law is, determine
its nature and articulate what role it plays in society. In other words, it forms the basis
of our understanding of the social, moral and cultural foundations of a society that we
then express in the ‘black letter’ law.
,To illustrate the above, let us think of South Africa’s apartheid past. The belief that
underlined apartheid was white supremacy and the belief in a divine right of Europeans
to rule over colonies. In the area of Property Law, these beliefs were express through
the enactment of laws that sought to shape and regulate property relations in the
country. One of the first and furthest reaching legislative measures used to control
African property rights was the 1913 Land Act.
In terms of the Land Act, the pattern of land ownership and holding was organised
along racial lines. New sharecropping tenancies were made illegal. This meant that
any transactions related to land between ‘natives’ and other persons (i.e. Europeans)
was frozen and any agreements contrary to the law resulted could be rendered void.
Any attempts to purchase, sell or lease property was criminally punishable by a fine
or imprisonment. This Act laid the foundation for many other pieces of legislation that
sought to achieve the governments political objective of organising society along racial
lines.
What we can observe from the example above is that the moral and political beliefs of
the colonisers (i.e. their theory of law) found expression in the legislation that they
enacted (i.e. the black letter law). This is one of the reasons why it is important to
appreciate the importance of legal theory in our studies despite it not always being
made obvious or pointed out to us. We may choose to deliberately ignore it, however,
it continues to exist and influence our (legal) decision making.
Hermeneutics
Authors have defined hermeneutics in different ways to illustrate that hermeneutics is
the art of understanding the techniques, methods or approaches used to interpret
texts. In basic terms, hermeneutics is an effort to understand written text and
establishing the rules for interpretation.
Historically, hermeneutics has been a useful tool in Christian theology and legal
theory. In Christian theology, the message of the scriptures has to be constantly
reinterpreted to adapt to changing circumstances and to retain its relevance for the
modern believer. In law, it is relevant for interpretation. Because of the legislature’s
inability to provide for each and every possible scenario when it writes the law, the
, courts have to interpret the text of the legislation in a case to give effect to the
legislation (i.e. apply the law to the facts of that particular case).
The key difference between the application of hermeneutics in theology and law can
be summarised as follows:
- Legislation is a distinct style, with its own rules, which is aimed at the legal
regulation of society.
- The biblical text is closed (i.e. the text is complete). Legislation, on the other
hand, is characterised by continuous development and change.
The practical relevance of hermeneutics in juridical interpretation is that the contextual
approach to interpretation is rooted in hermeneutics (the so-called ‘hermeneutical
circle). Every whole is understood in terms of its parts and every part is understood in
terms of the whole. In essence, this means that the interpreter must take into account
not only the language used in the text but also the historical and social context in which
they find themselves. This seeks to move interpretation from a mere mechanical
exercise to one where that involves value judgements.
Explainer Box: Understanding Hermeneutics in Legal Interpretation
Returning to our discussion on the various ways in which section 11 of the Constitution
has been interpreted (see Unit 1), we now turn to understanding how hermeneutics
assists us in understanding why, under the same right, a different outcome is possible
when interpreting this section. For our present purposes, we will refer to only 2 cases:
S v Makwanyane 1995 (3) SA 391 (CC) and Soobramoney v Minister of Health, KZN
1998 (1) SA 765 (CC).
When the drafters of the Constitution wrote section 11 of the Constitution they could
not have been able to foresee every possible circumstance where the right would have
been relevant. As interpreters of the Constitution and the law in general, the courts are
tasked with providing substance as to the meaning of the right. Although both Mr
Soobramoney and Mr Makwanyane asserted their right to life in seeking relief from the
court, the court’s interpretation was different in both cases. This is because,
hermeneutically speaking, the court had to have regard to the circumstances outside
of the text of section 11.
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