Meaning of Ambiguity
Ambiguity makes interpretation necessary.
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However, somewhat ironically,
the word “ambiguity” is itself ambiguous (or at least has been rendered so by
lawyers) by having both a wide and a narrow meaning. On the wide view,
ambiguity is anything that invokes the need for interpretation, while the narrow
view or views exclude some forms of ambiguity. This book takes the wide
view, that there is ambiguity when “the intention of the legislature is for
whatever reason doubtful”.
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There is some uncertainty about its meaning,
leading to uncertainty as to whether or not the provision applies to the facts of
a case.
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On one view of the law the provision
applies, on another view it
does not.
Causes of Ambiguity
There is a fundamental cause of ambiguity. So vast is the universe that no
language can describe unequivocally the complex array of things, events, and
concepts, and the many combinations of these, which can and do occur.
Consequently, language is not a precise instrument of expression so some
ambiguity is inevitable. Words are constantly guilty of “disorderly conduct”.
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Each word or phrase, and each sequence of words, is potentially ambiguous.
However, some words and sequences are more ambiguous than others, and
some contexts reveal the ambiguity of words and phrases more than others.
While the root cause of ambiguity lies in the nature of language, there are other
contributing causes. (i) The policy behind a rule or statute may not be clear,
comprehensive, co-ordinated or consistent. (ii) Poor expression in a case or
statute may cause unnecessary ambiguity.
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One aspect of this has been a
tradition of free expression in drafting statutes. Statutes, according to judicial
authority,
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“need not be drafted using any particular form of words”.
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In
consequence a drafter can express a provision in any manner that they choose.
Sometimes, therefore, the chosen means will cause unnecessary ambiguity. (iii)
Cases and statutes are a special form of written language for three reasons –
(a) they are impersonal and they purport to bind everyone, and “everyone”
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R v L (1994) 122 ALR 464, 468
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Repatriation Commission v Vietnam Veteran’s Association
(2000) 171 ALR 523,
550 per Spigelman CJ. This question is
discussed in Christopher Enright Legal
Reasoning Chapter 25 Analysing Ambiguity.
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This is fully explained and illustrated in Chapter 4 Forming Law.
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This is part of the title to an article -
Zechariah Chafee “The Disorderly
Conduct of Words” (1941) 41 Columbia Law Review 381.
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Eagleson (1988)
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Lord Pitsligo’s Case (1750) Fost 79 at 83, Longmead’s Case (1795) 2 Leach 694 at
696
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Jamieson (1980-81)
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