Discuss and evaluate, in a paragraph of between 450-500 words, whether any of the different subjective theories to legal interpretation that you studied have should still impact legal interpretation in the South African legal context especially since the start of the democratic era. Motivate your answer throughout.
Legal interpretation in the South African context has been heavily influenced by different subjective theories, such as intentionalism, textualism, and purposivism. These theories have played a crucial role in guiding judges in their interpretation of legislation and the Constitution. While each theory has its strengths and weaknesses, it is important to consider whether they are still relevant and impactful in the South African legal landscape, particularly in the democratic era post-apartheid.
Intentionalism, which focuses on discerning the subjective intentions of the lawmakers at the time of drafting the legislation, has been criticized for being overly speculative and prone to manipulation. However, intentionalism can still provide valuable insight into the legislative history and context of laws in South Africa, helping judges to understand the purpose and objectives behind the legislation. This is particularly important in a country with a complex legal history like South Africa, where the interpretation of laws can have far-reaching implications on society.
Textualism, on the other hand, emphasizes a strict and literal interpretation of the text of the law, ignoring extrinsic factors such as legislative history and purpose. While textualism can help maintain legal certainty and predictability, it may not always be adequate in capturing the broader social and constitutional values that underpin the law in a post-apartheid South Africa. The Constitution, for example, embodies transformative and progressive principles that may not always be evident from a strict textual interpretation.
Purposivism, which seeks to give effect to the underlying purpose or spirit of the law, strikes a balance between intentionalism and textualism by allowing judges to consider both the text and context of legislation. Purposivism has been particularly influential in the South African legal context, where the Constitution is seen as a living document that must be applied in a manner consistent with its transformative objectives. Judges in South Africa have used purposivism to interpret and develop the law in line with constitutional values such as equality, human dignity, and social justice.
In conclusion, while all three subjective theories have their merits, purposivism appears to be the most suitable approach to legal interpretation in the South African context, especially since the start of the democratic era. Purposivism allows for a flexible and context-sensitive interpretation of the law that is attuned to the transformative goals of the Constitution. It enables judges to consider the text, history, and purpose of legislation, while also taking into account the broader constitutional values that shape the legal landscape in post-apartheid South Africa. By embracing purposivism, South African courts can ensure that their decisions are not only legally sound but also responsive to the evolving needs and aspirations of a democratic society.