Clearly, this syllogism depends on the content of Rule X. If Rule X provides
one, and only one, identifiable correct answer to the question of interpretation,
the process is syllogistic. There are in fact four possibilities for Rule X:
(1)
Rule X is an objective rule of interpretation.
(2)
Rule X is a word having a fixed literal meaning.
(3)
Rule X is a rule that requires a court to interpret law by reference to
policy that has already been formed (referred to here as preformed policy).
(4)
Rule X is a rule that requires a court to interpret law by reference to a
precedent which has already interpreted the law.
As discussion will now show, the first two possibilities for Rule X –
as an
objective rule of interpretation or as a fixed literal meaning of a provision –
cannot be sustained as the basis for interpretation as a syllogism. Nor can the
third and fourth possibilities, even though on the surface the reasoning in this
instance appears syllogistic.
Objective Rules of Interpretation
One view says that the task of interpretation is a purely “legal analysis”
101
based on rules of
statutory construction that can be mechanically applied.
102
As Sir Garfield Barwick explained the position, there are “quite distinct and
understandable rules by which courts interpret statutory provisions”.
103
This assertion would be true if the rules of statutory interpretation were
capable always of giving a specific and uncontentious answer to any
ambiguity. This, however is not the case because the rules of statutory
interpretation are for the most part guidelines to help interpretation
persuasively, not rigid laws to determine it conclusively. There may, of course,
be occasions where they are an apt fit, but as Lord Steyn has neatly put it,
“interpretation does not generally depend on application of rules”.
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Literal Meanings
Courts sometimes refer to
the literal rule of interpretation. As conventionally
understood, this rule is based on the assumption that
words have one
single
meaning which can be objectively found.
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In consequence, a statute has “to
___________________
101
Brownlee v The Queen (2001) 180 ALR 301, 327 per Kirby J
102
Brownlee v The Queen (2001) 180 ALR 301, 333 per Kirby J
103
Retirement of Sir Garfield Barwick as Chief Justice (1981) 148 CLR v, ix.
These rules are also called maxims or canons. Their operation is analysed in
Chapter 24 Rules.
104
Steyn (2002) p 2
105
Kirby (2003) in Sheard (2003) p 45
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