The constitutional theory which inspires the interpretation of the constitution should. In the us, this canon has grown stronger in recent history. Ubiquitous in that universe is the common law, which, as sir owen dixon observed, supplies principles in aid of the interpretation of the constitution. The following are some of the general principles formulated by sa courts.
However, from this point of view just as legal norms or laws are in this. Although legislature makes the statute, it may be open to interpretation and have ambiguities. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or. Constitutional interpretation, or constitutional construction, is the process by which. Styles of constitutional interpretation and the four main. A supreme constitution must be given a generous and purposive interpretation. The principles for the interpretation of statutes are to be derived from the constitution. According to the scientific legal doctrine principles show a high degree of generality beeing fundamental provisions that are consolidated in the constitution and determine the direction. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation.
Read below and lets explore a better understanding of the constitution. The first continuum covers the breadth of the relationship between principles and the constitution, from the principles explicitly stated in the constitution to freestanding principles drawn by no imaginable arts of construction or interpretation from the constitutional text. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. Two broad constitutional archetypes can be identified. In construing statutes the cardinal rule is to construe its provisions literally and grammatically giving the words their ordinary and natural meaning. The bible interprets itself scripture interprets scripture.
However, these principles may not be appropriate to constitutional interpretation, which by its nature tends to lay down general principles. But to return to the rules of interpretation, arising ex directo from the text of the constitution. These principles are embedded in the scripture itself. Basic principles of statutory interpretation of law. Since constitutional principles are also the source for the rest of constitutional norms they can be interpreted and understood just in the context and in the light of the constitutional main principles. Some judges proclaim that they perform creative functions even in interpretation, however, this may sometimes lead to conclusions which have a strong legislative flavor. Background note on interpretation of constitution through. Inherent executive power a source i the legislative powers 1 article i, sec. The golden rule of interpretation can be said as the modification of the grammatical rule of interpretation. For example the first amendment to the constitution, which is freedom of speech, forbids the government from controlling what people say or write. This higher law is usually referred to as a constitution. Constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking.
Principles of constitutional interpretation of list prepared. She works primarily in the areas of elections, ethics, and constitutional issues as part of the state and local government division of lscs research staff. The main aim of the rule is to determine the mischief and defect that the statute in question has set out to remedy, and what ruling would suppress the mischief, and advance the remedy. The interpretation of fundamental human rights and freedoms is an important aspect of constitutional law. These rules tell us what legal materials to read and how to read them.
He has been practicing advocate and a past president of aiftp. Separation of powers superstrong rule against congressional interference with presidents authority over foreign affairs and national security. Acropdf a quality pdf writer and pdf converter to create pdf. Strausst the constitution of the united states is a document drafted in 1787, together with the amendments that have been adopted from time to time since then. Statutory and constitutional interpretation is about construing exacted lawtexts with reference to and.
The interpretation of the constitution is provided for under art. General principles and recent trends congressional research service summary the exercise of the judicial power of the united states often requires that courts construe statutes to apply them in particular cases and controversies. Principles of constitutional interpretation people attempt to interpret the principles of the constitution constitutional interpretation and get it wrong because of faulty technique or trying to bend it to their own agenda. The constitution is a legal document that is sui generis unique and must be construed as a special document. A coherence issue will arise in such a system wherever two rules in it conflict. Styles of constitutional interpretation and the four main approaches to consitutional interpretation in american legal history r.
Constitutional framework and principles for interpretation part a hailbronnerthym ability, necessity or proportionality sensu stricto of the measure in question, 93 in. This article examines precautionary strategies of constitutional design and interpretation. Principles of interpretation as recognized generally by biblical scholars, treated as a science, derived inductively from an exegesis of many passages of scripture. Download interpretation of statutes and principles of legislation book pdf for 2nd year students. The differences between these two types of constitutions relate to the nature and purposes of the document itself. The constitutional principle of separation of powers refers to the division of powers within the government. But the field lacks system or structure there is no general understanding of what constraints a theory of legal interpretation must meet or what it must. Constitutional courts, constitutional interpretation, and. The letters of the constitution are fairly static and not very easy to change but the laws enacted by the legislature reflect the current state of people and are very dynamic. Constitutional analysis of the interpretation clause of the. Ranka, has authored articles on rules of interpretation of tax statutes in the bombay chartered accountants society journal bcaj. The guides to legislative intention, otherwise known as interpretative criteria, are. Like other parts of the law, what we call the law of interpretation has a claim to guide the actions of judges, officials. Styles of constitutional interpretation and the four.
Constitutional interpretation, or constitutional construction, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. At the outset, it must be clarified that, it is only when the intention of the legislature as expressed in the statute is not clear, that the court in interpreting it will have any need for the rules of interpretation of statutes. And first the rules to be drawn from the nature of the instrument. The normal way of interpreting or construing a statute is to seek the intention of legislature. Supreme courts policy of deciding constitutional questions only when necessary, and of avoiding a constitutional question if the case can be decided on the basis of another issue. Principles of interpretation of statutes 205 process of ascertaining the meaning at an act of parliament or of a provision of an act. Principles of harmonious construction must be applied. Constitutional principles and coherence in statutory. There has been a noticeable shift in the expression of law from court judgments to expositions in legislation. Methods of constitutional interpretation oxbridge notes. Constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. General rules of interpretation of the constitution.
Courts are often alive to its peculiar nature and have over the years developed principles followed in interpretation of the constitution. Constitutional interpretation university of michigan law school. People attempt to interpret the principles of the constitution constitutional interpretation and get it wrong because of faulty technique or trying to bend it to their own agenda. A constitution as a legal, social and political document. Commons, rule of law commons, and the supreme court of the united states. An interpretation that relies on an implication which is formed on a vague, individual conception of the spirit of the compact can only lead to divergences and inconsistencies because it is rebuttable by an intention of exclusion equally not referrable to any language of the instrument or acknowledged common law constitutional principle, but. Another mode of constitutional interpretation draws inferences from the design of the constitution. Introduction constitution is the supreme and fundamental law of our country. The 10 principles of biblical interpretation there are certain principles that will help us to accurately handle the word of truth. The other two are the plain meaning rule also known as the literal rule and the golden rule. It is to be construed, as a frame, or fundamental law of government, established by the people of the united states, according to their own free pleasure and.
Legislation is drawn up with these principles in mind. Introduction in the large literature on legal interpretation, we find intelligent argument and sophisticated theoretical resources. But in many cases, there is some ambiguity or vagueness in. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. Constitutional government encyclopedia of life support. The constitution must be interpreted in a broad and literal sense. Courts of law are enjoined to gather the meaning of the constitution from the language used and although one should interpret the words of the constitution on the same principles of interpretation as one applies to an. Away from institutionalism and toward individualism 100. Mar 31, 2017 principles of constitutional interpretation introduction. Fn52 rules against congressional invasion of the presidents core executive powers. Methods of constitutional interpretation outlines and revision materials. Federal rules of statutory interpretation by nicholas quinn. Statutory interpretation deals with the body of rules and principles used to construct and justify the meaning of legislative provisions to be applied in practical situations.
Jun 23, 2005 the constitutional question turns out to be as important as the answer, because it adds a vital and neglected dimension to the debate about statutory interpretation. This is because most areas of law are made up of rules calling for obedience by the subject or application by the judges. One of the three basic rules of interpretation, construction is golden rule. Statutory interpretation refers to the process by which a court looks at a statute and determines what it means. Ashwander rules law and legal definition uslegal, inc. An indepth discussion of all the rules and principles of constitutional interpretation is a subject on its own. Perhaps, in other words, constitutional interpretation is best thought of as an activity that one can do well or poorly, rather than as an application of some explicit general theory. Rather, it is deeply shaped by preexisting legal rules. Principles of statutory interpretation emily wendel legislative service commission emily wendel has served as an attorney with the legislative service commission since 2011. The mischief rule is one of three rules of statutory interpretation traditionally applied by english courts. The following is a more accessble plain text extract of the pdf sample above. Apr 18, 2018 the principles of constitutional interpretation rajashree j jawale assistant proffesor ismailsahebmulla law college satara 2. Primary rules of interpretation are discussed hereunder. The difference between constitutional and ordinaryinterpretation was explained by froneman in matiso.
When a court sets aside a statute as unconstitutional, it in essence deems the statute invalid in the name of the constitution. The principle of limited government is seen throughout the constitution. The principles of constitutional interpretation rajashree j jawale assistant proffesor ismailsahebmulla law college satara 2. It was originated in england in 1854 and was coined by c. This article examines whether there are any limitations on constitutional amendment powers that are external to the constitutional system and above itsupraconstitutional limits. There is no particular skill involved in locating coherence issues in general legal discourse. Randall kelso, styles of constitutional interpretation and the four main approaches to. Constitution and constitutional interpretation is inseparable from norms and principles. Some amount of interpretation is often necessary when a case involves a statute. In second order are classified the ordinary legal principles.
The ordinary rules of statutory interpretation must give way to this more. Ashwander rules are a set of principles put forward by justice brandeiss concurring opinion in ashwander v. Principles of legal interpretation mark greenberg, ucla 1. In a constitutional democracy such as south africa, or the united kingdom, which is bennions terrain, noone. Two constitutional archetypes constitutions balance and reconcile these legal, political and social functions in different ways. Apr 01, 2017 there are certain general principles of interpretation which have been applied by courts from time to time. Xv explicit rules on constitutional interpretation are helpful to identify the constitutional lawmakers intention of how the constitution should be interpreted and thus form part of the constitutional design. The principles of constitutional interpretation the. Statutory interpretation is the process by which courts interpret and apply legislation. Apart from the constitutional values, the interpretation of statutes was transformed by six provisions of the constitution, in particular.
But in practice the constitution of the united states is much more than that, and often much different from that. Interpretation of statutes and principles of legislation. All legislative powers herein granted shall be vested in the congress of the united states vesting clause a most important power herein granted power to pass laws i framers intent. It is important to note that the constitution itself endorses the general principles of interpretation through article 3671, which states that unless the context otherwise requires, the general clauses act, 1897 shall apply for the interpretation of this constitution as it applies to the interpretation of an act of the legislature. The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used. Pdf the divergence of constitutional and statutory interpretation. The necessity of the study of hermeneutics follows from several considerations.
In american law, the principle constitutes a fundamental aspect of the rule of law, 8 for it requires courts to decide cases on the basis of public and predictable. If the words are clear and unambiguous, they must be given the full effect. In many contexts, constitutional actors and theorists justify rules of constitutional law as. A constitution is a set of fundamental legalpolitical rules that. The literal interpretation principle we take the bible at. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision. Since it is written in the form of a statute, the general principles of statutory interpretation are applicable to interpretation of the constitution as well. Pdf constitutional framework and principles for interpretation. The 1996 constitution those principles of the interim constitution which transformed statutory interpretation were retained in the constitution of 1996. Principles of constitutional interpretation constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. Some scholars distinguish between interpretation assigning meanings based on the meanings in other usages. Constitutional law, interpretation, principles of interpretation.
It is said that it seems wrong to parcel the constitution as if it were a finance act. Principles of constitutional interpretation of list. For cogent analyses of theories of constitutional interpretation potentially applicable in the context of the ic, see generally lourens m. Cc has worked out seven specific principles for interpretation of a basic. Discuss the rules of statutary interpretation with the. Interpretation of statutes and principles of legislation book pdf. The principles of constitutional interpretation explain,in the interpretation of constitution, the judicial approach should be dynamic than static, pragmatic than pedantic, and elastic than rigid. The vast majority of contemporary constitutions describe the basic principles of the state, the structures and processes of government and the fundamental rights of citizens in a higher law that cannot be unilaterally changed by an ordinary legislative act. Chapter 11 the rule of law, legality and the supremacy of. As stated by salmond, by interpretation or construction is meant, the process by which the courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which.
Rules of statutory construction are those laid down at common law and those laid down by statute. Methods of interpreting the constitution juridica international. It considers the theory and practice of the relationship between natural law, international law or other supranational law, and domestic constitutional law in. A statute, which is a bill or law passed by the legislature, imposes obligations and rules on the people. There is a tremendous output of federal, state and territory legislation. General principles and recent trends congressional research service 1 introduction article i, section 1 of the constitution vests all federal legislative power in congress, while. Principles and concepts the constitution at the intersection of legal, social and political life as legal, political and social documents, constitutions are at the intersection of the legal system, the political system and society see figure 2. If rights are wrongly or narrowly interpreted, citizens will not adequately enjoy what is constitutionally due to them. To ask whether congress may codify a particular interpretive method is precisely to ask whether the constitution requires the method that is to be displaced.
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