© F A R BennionWebsite:

Doc. No. 2005.005STATUTORY INTERPRETATION SUPPLEMENT 2005

Any footnotes are shown at the bottom of each page

For full version of abbreviations click ‘Abbreviations’ on FB’s website.

Appendix H

Responses to Code s 288 (updating construction)

I

Updating and Dynamic Construction compared

In a 1999 article (‘A Unified Theory of Statutory Interpretation’ by R.N. Graham, Assistant Professor, Faculty of Law, University of New Brunswick, drawn from ‘A Unitarian Theory of Statutory Interpretation’, R.N. Graham, 1999, YorkUniversity), it is suggested that updating construction as described in Code s 288 is akin to Eskridge’s dynamic construction. The following brief extracts from the article show Professor Graham’s argument.

‘I will begin by examining the strengths, weaknesses and interaction of two fundamental yet mutually contradictory theories of statutory construction, namely: (1) Originalism, which addresses interpretative problems by reference to the views and expectations of legislative drafters, and (2) “Dynamic” or “Progressive” interpretation, which dismisses the views of legislative drafters and resolves interpretative problems by reference to current values.

[P 3]

‘Unlike Coté’s archaeologists, the “dynamo” refuses to see a statute’s meaning as an artifact to be discovered through the use of historical evidence. Instead, the dynamo sees the statute’s text as clay that can be shaped in ways that were not necessarily intended by the statute’s drafters. Where the requirements of logic, justice or political correctness suggest that an enactment should be interpreted in a way that differs from the drafters’ understanding of the language, dynamic interpretation permits the interpreter to select a construction that fits with current needs and departs from historical expectations.

‘According to Coté, dynamic interpretation permits an enactment to be moulded in response to “needs which are identified at the time the rule is being applied, either with reference to the current rather than the historic will of the legislature, or with respect to what the interpreter considers is dictated under the circumstances”. Footnote 51: Pierre André Coté, The Interpretation of Legislation in Canada, 2d ed. (Cowansville, Quebec: Les Editions Yvon Blais, Inc., 1992), 10.

‘Dynamism’s view of the statute as an organic, “evolutive” document is elegantly described through Francis Bennion’s nautical analogy:

“. . . the ongoing Act resembles a vessel launched on some one-way voyage from the old world to the new. The vessel is not going to return; nor are its passengers. Having only what they set out with, they cope as best they can. On arrival in the present, they deploy their native endowments under conditions originally unguessed at.” Footnote 52:Francis Bennion, Statute Law (London, England: Oyez Publishing Limited, 1980), 356.

‘According to this view of legislation, statutory language must grow and adapt in response to changing social conditions. Unlike the originalist, who sees the intention of the drafter as the ultimate goal of interpretation, the dynamic interpreter views the author’s intent as merely one (marginally relevant) element of construction. The drafter’s understanding of the statute does not represent an objective ‘true meaning’ of the legislative language, but merely one potential construction of the statute.

‘According to Valéry: “One cannot insist enough: there is no true meaning of a text. No authority of the author. No matter what he wanted to say, he has written what he has written. Once published, the text is like a tool machine that each may use as he wishes according to his means: it is not clear that the author’s choice will be better than someone else’s”. Footnote 53: Paul Valéry, Variété III, trans. Pierre Carignan, 41st ed. (Paris, France: Gallimard, 1936), 68.

‘In Dynamic Statutory Interpretation,William Eskridge gives several examples of the manner in which dynamic interpretation can cause a statute to grow in ways that conflict with the drafters’ expectations.’Footnote 54: William Eskridge, Dynamic Statutory Interpretation (Cambridge, Massachusetts: Harvard University Press, 1994).

[Pp 26-27]

‘Like William Eskridge, Coté contends that dynamic interpretation does a better job than originalism in ‘dealing with the dynamic relationship between drafter and interpreter. Footnote 71: Coté, 20.

‘According to Coté, the drafters of statutory language do not establish the legislation’s meaning, as meaning “is born of interpretation”.Footnote 72: Coté, 20.

‘Over time, as the law is applied to more and more unforeseen situations, the statute’s meaning evolves into something beyond that which was envisioned by its drafters. Francis Bennion describes the forces behind this evolutionary process as follows:

“Each generation lives under the law it inherits. Constant formal updating is not practicable, so an Act takes on a life of its own. What the original framers intended sinks gradually into history. While their language may endure as law, its current subjects are likely to find that law more and more ill-fitting”.Footnote 73:Francis Bennion, Statutory Interpretation, 2nd ed. (London: Butterworths, 1992), 618.

‘The dynamic interpreter of language, unlike the originalist, plays an active role in the development of meaning.’

[P 36.]

Comment on the above The above extracts from Professor Graham’s article align the present author’s theory of updating construction with Professor Eskridge’s theory of dynamic construction. This would be satisfactory in that one does not need any more theories of this kind than is necessary. However note needs to be taken of the caution set out in the opening paragraph of the comment to Code s 288, which shows that updating construction does not go nearly as far in departing from the original intention of the legislator as does dynamic construction. The danger of the latter is that it leaves too much to the initiative or imagination of the interpreter, and is thus undemocratic.

The above apophthegm of Paul Valéry has a grain of truth in relation to legislation in that the relevant meaning of an enactment is the legal meaning, which may vary with time (see Code ss 2, 3). Otherwise the comment is untrue and unacceptable for democratic laws.

II

Updating Construction and Common Law

The 1999 Clarendon Law Lectures by Justice W M C Gummow of the High Court of Australia are published as Change and Continuity – Statute, Equity, and Federalism (Oxford University Press, 1999). In Lecture One – The Common Law and Statute he says-

‘The statement by Francis Bennion that a statute “takes on a life of its own” and “resembles a vessel launched on some one-way voyage from the old world to the new” Footnote 31 Bennion, Statutory Interpretation, 3rd edn (1997) at 687.

has its admirers both in the United KingdomFootnote 32 Beatson, ‘Has the Common Law a Future?’ (1997) 56 Cambridge Law Journal 291 at 303.

and theUnited States. Footnote 33 Eskridge, Dynamic Statutory Interpretation (1994) at 49.

‘The relevant passage deserves repetition in full:

“Each generation lives under the law it inherits. Constant formal updating Is not practicable so an Act takes on a life of its own. What the original framers intended sinks gradually into history. While their language may endure as law. its current subjects are likely to find that law more and more ill-fitting. The intention of the originators, collected from an Act’s legislative history, necessarily becomes less relevant as time rolls by. Yet their words remain law. Viewed like this, the ongoing Act resembles a vessel launched on some one-way voyage from the old world to the new. The vessel is not going to return; nor are its passengers. Having only what they set out with, they cope as best they can. On arrival in the present they deploy their native endowments under conditions originally unguessed at.”

‘This description is particularly apt to illustrate the situation wherestatute takes a particular common law doctrine as a criterionfor its operation. The scope andpurpose of the statute will expand, contract and diversify to follow the shifts in the common law. In this way. the common law gives to the statute a dynamic operation which if differently expressed, the statute might not have had . . The prospect of which Bennion spoke is made more immediate in cases where the substratum or necessary assumptions upon which a particular common law doctrine has rested are removed by statute. Once “[t]he whole reason and justification” Footnote 44Edwards v Porter [1925] AC 1 at 10.

for the common law doctrine or requirement has gone, the latter goes with it. There are difficulties in ascertaining whether rules of thecommon law disappear where, by reason of legislation, their reason no longer holds, and in the operation of the maxim cessante ratione legis, cessat lex ipsa expressing that notion.’

[Pp 6-10]

Comment on the above For the effects of legislation on common law rules see Code s 32 and Index entries under Common law. For the maxim cessante ratione legis cessat ipsa lex see Code pp 761-762.

For a case where the Supreme Court of Appeal of South Africa cited extensive material from Code s 288 in applying an updating construction to legislation relating to the common law of marriage see Marié Adriaana Fourie and Cecelia Johanna Bonthuys v Minister Of Home Affairs and Director-General Of Home Affairs, Lesbian And Gay Equality Project as Amicus Curiae (Case no:232/203 2004, [136]-[138]