Abstract
LL.D.
My dissertation expounds the difficulty of interpreting fundamental claims - as
found in a justiciable constitution - in circumstances of social diversity. The basic
premise is that successful interpretation depends on the open acknowledgement
of the fact of diversity (and its accompanying problems) and a willingness to
critically re-evaluate traditional definitions and existing theories of interpretation.
In the Introduction I argue that the established conception of social/cultural
identity as being stable and isolated, should be replaced by the idea that identity
is overlapping, shifting and internally negotiated. Such a conception would create
the forum for constitutional . dialogue leading to a temporal and conditional
agreement about meaning. I also argue for a more inclusive understanding of the
term "interpretation" - analogous to the much broader act of "translating". In chapter two I contend that so-called "monism" - the viewpoint that there is a
single correct answer to every problem of interpretation - is an impossible and
harmful ideal, undermining the contextuality of interpretation in a diverse society.
I discuss the two theories traditionally used by South African courts to ensure
"objective/correct" interpretation - literalism and subjectivism - to illustrate the --
unfeasibility of monism. Hart's analytical jurisprudence, in spite of its acceptance
of the linguistic contextuality of the law, still postulates so-called "easy cases"
where legal meaning can be found instead of negotiated. Finally, I argue that
Dworkin's expansive theory of legal constructivism - construing an allperspicacious
judge finding the "one correct answer" in the "seamless web of the
law" - is both morally unacceptable and practically impossible in a diverse society
such as ours.
Chapter three explores the hermeneutic dialogue - as expounded by Gadamer -
as a more realistic way of perceiving constitutional interpretation in a diverse
society. The different social and historical contexts (or "horizons") of the participants - and of the text they interpret- are seen as inescapable and indeed
necessary for understanding. Each participant must, however, be prepared to
reconsider his/her own pre-conceptions in the light of alternative points of view. I
illustrate Gadamer's dilemma of avoiding both extreme context-bound
subjectivism and extreme context-free objectivism by discussing two of his critics:
Habermas and his theory of "critical hermeneutics" and the ethnocentrism of
Rorty. I argue that, in spite of severe problems - specifically the danger of
participants destroying the process by way of male fide inputs and of the
domination of the dialogue (and of the forum) by established groups - the
hermeneutic dialogue remains the only possible way of accommodating diversity
in the process of constitutional interpretation. In chapter four I examine three sceptical theories in order to mitigate the
(unwarranted?) optimism required by philosophical hermeneutics. Both legal
realism and the CLS movement made a valuable contribution to maintain a
vigilant and critical attitude towards the reality of the judicial process and to
expose the undermining influences of existing social structures and
institutionalised practises on this process. Deconstruction, on the other hand,
points to the possibility of broadening the interpretive forum by including hitherto
non-privileged points of view.
I conclude with Caputo's plea for facing the difficult - but not impossible - task of
acknowledging diversity within the broad "interpretive community" while
maintaining a critical or reflexive attitude towards the process, the other(s) and
oneself.