Interpretation Of Statutory Rules As Application: A Legal Hermeneutics

Abstract

The thesis critically examines the judicial interpretation of statutory rules, now the source of most of our law. Courts in adopting a traditional two-step approach denoted as prospective interpretation (first ‘understand’ the meaning and then apply that meaning) have promulgated conditions that effectively rewrite statutory rules and limit their accessibility, so presenting a challenge to the separation of powers and to rule of law values. My research critically examines the tenability, completeness and utility of prospective interpretation, in particular by analysis of the work of Neil MacCormick. An alternative approach, denoted as concurrent interpretation: judicial interpretation by correspondence of the words of the rule with the facts of the particular case, is explored. The conceptual legitimacy of, and methods for, concurrent interpretation are found in philosophical hermeneutics and its account of language. The perceived problem that philosophical hermeneutics has nothing to say about method is confronted. By drawing on the work of Arthur Kaufmann, Paul Ricoeur and Jarkko Tontti in particular I introduce a legal hermeneutics as a practice of legal argument in the context of the judicial interpretation of statutory rules.