Drafting and Interpretation of Statutes – Plain Language and Postmodernism

The drafting and interpretation of statutes is important because without them there would be no common understanding of what the rules are. South Africans are proud of having a democratic constitution. It is a legal guideline for right and wrong that we can turn to in times of trouble.  We see it as something that is constant, applying equally to all citizens, high and low. However, the way people interpret a statute (like the constitution) can in some cases differ from the meaning originally intended by the legislature (the creators of statutes). Drafters of statutes need to appreciate this and accept that it is not a bad thing. Whilst this article is about statutes, much of it applies to all legal documents (like contracts).

A statute can be interpreted differently to how the drafter intended

Plain language understandable to the ordinary reader

In addition, citizens have a right to expect that statutes must be drafted in plain language understandable to the ordinary reader. This makes the legislature’s drafting of statutes a highly creative task. And, depending on how the legislature completes that task, the interpretation of statutes that follows can either be an interesting exercise or a tiring and confusing one.

Writing in plain language may seem simple, but simplicity is an art.

Meaning is discovered in dealing with a Text

The legislative branch of government cannot completely control the interpretation of statutes at the time of drafting. As Lourens du Plessis says in his book Re-interpretation of Statutes, meaning is not necessarily discovered in a text, but in dealing with a text.  This postmodern concept, known as “linguistic turn,” is more familiar to people with a background in languages and philosophy, than to people with a background in law. (I’m lucky enough to have degrees in law, language, English and philosophy, the combination of which puts me in a unique position to explore these issues)

Simply put, on the positive side, linguistic turn allows for an open-ended approach that can help keep statutory interpretations in line with constitutional principles.  On the other hand, there is also the risk that Judges and officials may impose their own personal meaning on particular legal provisions when a meaning is not clear.

Statutory interpretations must be in line with constitutional principles

Anticipating a future Interpretation of Statutes

It is therefore important when drafting statutes that the drafters clearly understand reader response theory and postmodern interpretative practices. This will help drafters to anticipate future re-interpretations of the legislature’s intentions and consider the impact of such re-interpretations.

Translating from English to another language can help

Translating the English statute into a second language can also assist with ensuring the language and intentions of the legislature are plain and clear. Think for example of the phrase used for married couples being “in community of property.”  Some languages do not have a phrase for “in community of property.”  They translate it as “what is his is hers, and what is hers is his.”  What could be more plain and clear for any young couple wanting to understand the financial consequences of marriage?