Interpretation theories and their relevance to constitutional interpretation

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CHAPTER 4 Consistency as applied to the right to life


Life. This word probably ranks among the shortest words in humankind‘s vocabulary. Yet, nothing can be performed without life, nor can anything be enjoyed without it. In fact, so many rights hinge on it as a pivot. All the rights encapsulated in the Bill of Rights are reduced to no rights at all without life as they cannot be enjoyed without it, and once life ceases, cease all the rights in the Bill of Rights. 258 In the field of human rights litigation ―the value of life‖ has been described as being ―immeasurable for any human being‖ and life itself has been described as something to be protected by the States.259 Viewing the right to life through the prism of the Constitutional Court of South Africa, one finds that it is judged as a right that is given greater protection than the protection extended to it by other jurisdictions.260 For example, article 21 of the Constitution of India261 entrenches the right to life by providing that no person shall be deprived of his life, but attenuates the entrenchment by adding the qualification ―except according to procedure established by law‖. Article 2(2) of the Constitution of Germany262 also protects the right to life and other related rights by providing that ―every person shall have the right to life‖, but attenuates that protection by adding that this right ―may be interfered with only pursuant to law‖. Likewise, article 4(1) of the Constitution of Botswana263 affords protection for the right to life by providing that ―no person shall be deprived of his life intentionally‖, but that protection is weakened by the addition of the qualification ―save in execution of the sentence of a court in respect of an offence under the law in force in Botswana of which he has been convicted‖. By comparison, however, section 11 of the Constitution of South Africa does not have these qualifications in entrenching the right to life. Judged by the protection it enjoys and by the immeasurable value it is said to have, one logically expects that the right to life will be accorded consistent recognition throughout all litigation battles where it features. There is a need to maintain consistency in the construction of constitutional rights, guided by the fundamental principle of judicial precedence.264 The construction of the right to life is no exception to the rule.265 Comparative law may be an invaluable guide and international law an indispensable instrument in arriving at the appropriate interpretation of a constitutional right.266 Comparative law has been defined by Church et al 267 as ―a discipline which involves a scientific legal discourse relating to two or more legal systems at least one of which is one foreign to the comparatist‖. According to the learned authors, where there are gaps, or where there is ambiguity in our law, recourse to other systems in comparative perspective would be wise. Especially would such a step be necessary where concepts in our law have been transplanted from another jurisdiction.268 A fact cited by the authors269 as an example of jurisdictions making use of comparative law is the practice of the European Court of Justice of the European Communities where the judges from the various Member States of the European Union are bound to draw upon their experience as lawyers within those various states. As far as international law is concerned, section 231(4) of the Constitution provides that any international agreement becomes law in South Africa when it is enacted into law by national legislation. Makwanyane 270 the Constitutional Court made it clear that both binding and non-binding international agreements may be used as tools of interpretation. As such, international agreements and customary international law provide a framework within which the Bill of Rights can be understood.271 There is a distinction between binding and non-binding international law. According to Church et al,272 binding law in the context of the pronouncements made by the Constitutional Court in S v Makwanyane 273 would refer to human rights conventions ratified and enacted into law274 by South Africa and such international human rights norms that have assumed the status of customary international law. Non-binding law would include a variety of international instruments such as conventions not ratified by South Africa, declarations, resolutions by the General Assembly and other bodies, decisions and general comments of treaty monitoring bodies. Church et al 275 explain that these sources are tools of interpretation, and as such, they must be considered alongside other tools.


CHAPTER 1 General introduction
1.1 How the need for interpreting arises
1.2 How statutes and the Constitution have been interpreted
1.3 Constitutional rights which have been
interpreted inconsistently
CHAPTER 2 Interpretation theories and their relevance to constitutional interpretation
2.1 Introduction
2.2 The literal or ordinary-meaning approach
2.3 Determining the meaning of the legislature
2.4 The purposive approach
2.5 Contextualism
2.6 The mischief rule
2.7 The generous approach
2.8 The historical approach
2.9 Constitutional interpretation
2.10 Progressive interpretation
2.11 The presumption of constitutionality
2.12 Multilingualism
2.13 When the constitutional text itself is seemingly contradictory
2.14 Neutrality in interpretation
CHAPTER 3 Inadequacy of interpretation theories without consistency
3.1 Introduction
3.2 Lack of consistency
3.3 Influence of personal beliefs on consistency
CHAPTER 4 Consistency as applied to the right to life
4.1 Introduction
4.2 Consistency in interpreting ―life‖ as a right
4.3 ―Life‖ seen through the prism of experts
4.3.1 Consistent legal view of ―life‖ established by precedent
4.4 At common law
4.4.1 In statutes
4.4.2 In the academic sphere
4.5 In the law of the United States of America
4.5.1 In German law
4.5.2 In Ecuador, Philippines, Chile and Ireland
4.5.3 In Canadian law
4.5.4 In Indian law
4.5.5 In South African law
4.5.6 In international instruments
CHAPTER 5 Consistency as applied to capital punishment
5.1 Introduction
5.2 Cruel, inhuman and degrading treatment
5.3 Consistency in interpretation
5.4 In Indian law
5.4.1 In the United States law
5.4.2 In international instruments
5.5 Comparison with various jurisdictions
CHAPTER 6 The right to life of the terminally ill
6.1 The law in the United States of America
6.1.1 In Australian law
6.1.2 In Canadian law
6.1.3 In Indian law
6.2 Inconsistency in South African law
CHAPTER 7 Consistency as applied to the right to privacy
7.1 Background to the right to privacy
7.2 Privacy in Roman and Roman-Dutch law
7.3 Interpretation consistency of the right to privacy
7.4 In questionable conduct
7.5 ―Without harming one another‖
7.6 The position in the United States law
7.6.1 The position in Canadian law
7.6.2 In international law
7.7 In search and seizure
7.8 In the United States law 
7.9 In Canadian law
7.10 Privacy arising from privilege
7.11 The absolute or relative nature of privilege 
7.11.1 In South African law
7.11.2 In Canadian law
7.11.3 In Australian law
7.11.4 In English law
How consistency should affect the right to one‘s culture
8.1 Introduction
8.2 The nature of customary law
8.3 The conflict between the Bill of Rights and customary law
Conclusion and recommendations


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