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.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uj/uj:3183 |
| Date | 27 August 2012 |
| Creators | Boshoff, Anél |
| Source Sets | South African National ETD Portal |
| Detected Language | English |
| Type | Thesis |
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