ranges from people who are docile, law abiding and just, to those who are
malicious, corrupt, cunning and oppressed; (b) they speak to later generations
and may even survive for centuries; and (c) they communicate without the non
verbal cues, as the psychologists label them, which assist us with our ordinary
communication with our fellow human beings. (iv) According to Richard
Posner, statutes tend to be ambiguous where there is difficulty in having
legislation passed. In jurisdictions where party discipline is not strong, there is
a substantial cost in obtaining a majority of legislators to agree to pass the
statute. One way to reduce the cost is to “agree on less”.
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This is done by
using words that are broad and open, and for this reason are ambiguous.
There are, therefore, reasons why law might be ambiguous, and in some cases
more ambiguous than our intimate communications. It is not surprising then
that the law reports are made up of cases involving disputes over the
interpretation of statutes and the meaning of common law rules.
Organising Framework
Ambiguity actually provides an organising framework for interpretation when a
court properly identifies all of the meanings of the ambiguous provision. First,
the existence of these two or more meanings is the cause of the problem. It
invokes the interpretive function of the court.
Second, the meanings of the provision are the focus for reasons or arguments
addressed to resolve the ambiguity. Stating the obvious, an argument must be
directed
towards
or against a particular meaning. An argument may be
addressed to a meaning indirectly by addressing the effect that a meaning
causes. Or it may be addressed directly to the actual meaning.
Third, the full range of meanings of the ambiguous provision not only
identifies the problem, it furnishes the solution. Because of the
literal rule,
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identifying every possible meaning of the ambiguous provision both identifies
and limits the choices open to a court. A court can choose only one or more
of these meanings as the legally correct meaning of the ambiguous
provision.
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152
Posner (1992) p 542
153
Christopher Enright Legal Reasoning Chapter 25 Analysing Ambiguity
154
Collector of Customs v Agfa-Gearet (1996) 141 ALR 59 at 66
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