Analysing ambiguity in this way shows that ambiguity can create uncertainty
about whether a law applies to a set of facts, but does not do so in every case.
As illustrated by Cases 1 and 2, ambiguity matters only where on one meaning
of the provision it applies to the facts while on another meaning it does not
apply. Alternatively, as illustrated by Cases 3 and 4, despite the ambiguity, in
some cases it does not matter which meaning is used and applied to the facts
because the result would not be any different.
To give an example, take self defence as a defence to murder. If Jane kills
Mary because she has found Mary burgling her house, some question of self
defence can arise, so that any ambiguity in the law of self defence might come
into play. If, on the other hand, Jane kills Mary while she is playing tennis by
shooting her from behind with a telescopic rifle from a distance of 100 metres,
and the killing is a professional “hit,” there is scarcely any possibility that Jane
can raise self defence. In this case then, no matter how ambiguous the law on
self defence may be, the ambiguity
is not relevant because self defence just
does not arise.
Interpretation
Judges who arm themselves with dictionaries and expect to find a single,
unproblematic interpretation of a statute expect too much of language – and
too little of themselves.
92
When a law is ambiguous, initially users of the law must decide questions of
law for themselves.
93
Hence, the best that they can do is to make a reasoned
guess as to the correct legal meaning. However, if the matter comes to court, it
becomes necessary for the court to resolve this uncertainty by some official
interpretation of the ambiguous provision.
94
Logically, one might think, legislatures should interpret statute law since
interpretation is a legislative process, even if on a reduced scale, but
conventionally in common law jurisdictions courts interpret both common law
and statute law.
95
Thus, in this area of legislative activity courts wield the
power,
96
and more so because of the phenomenal growth of statute law in the
regulatory state.
97
92
Carter and Burke (2007) p 69
93
Re O’Reilly; Ex parte Bayford Wholesale (1983) 181 CLR 557 per Dawson J.
94
United States of America v William C Scrimgeour 636 F.2d 1019 (5th Cir. 1981)
discusses many aspects of statutory construction.
95
Bauman (1989)
96
Easterbrook (1984)
97
Sunstein (1989)
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