The object of statutory interpretation is to determine what the words of a statutory provision mean. However, what words mean may in some situations depend on who is reading them. Drucilla Cornell makes the following comment about the nature of meaning: "Meaning is not like a dead object which is present for us to grasp and then apply. Meaning only comes to life within a form of life". [Drucilla Cornell "Institutionalization of Meaning, Recollective Imagination and the Potential for Transformative Legal interpretation" (1988) 136 U Pa L Rev 1135, 1136 – 1138.]
Characteristics such as gender, income level and race may all have an effect on interpretation. Judges tend to be privileged, white males and these characteristics can have an impact on the decisions that they make. As one commentator states: [Kent Greenawalt "Variations on Some Themes of a 'Disporting Gazelle' and His Friend: Statutory Interpretation as Seen by Jerome Frank and Felix Frankfurter" (2000) Colum L Rev 176, 210.]
[N]o one who thinks carefully can doubt that social class, race gender, national origin, sexual preference, and more personal factors affect judicial outlooks...When cases are difficult, when good arguments can be made on both sides, the idea that detachment will somehow get judges to the right result seems naive.
Not only can the process of determining the meaning of words be affected by judicial personality, but so too can the implementation of the purposive approach. It will not always be easy to deduce the purpose from the Act and extrinsic materials. In such cases, an inquiry into purpose may not be an objective task and it is possible that different judges might disagree about the purpose of an Act. Indeed it has been said that "Judges giving weight to purposes may implement their own notions of good policy, while attributing them to the legislature". [ Greenawalt, above, 211–212]
The value-based approach to interpretation discussed in Professor Burrow's paper adds a further degree of subjectivity to the interpretation process. In many instances the relevant fundamental value will be clear as it will be contained in the Bill of Rights Act. However, there are many fundamental values not contained in the Bill of Rights Act. It is arguable that judges' personal ideas of policy might sometimes colour their determination of these fundamental values and the relevance of each value in any given case.
The element of subjectivity in interpretation has always existed. What is relatively new is the increasing recognition of this fact. Traditionally the interpretative process has been regarded as objective and neutral. In recent years, however, this assumption has been questioned. Scholars such as feminists and critical legal theorists have argued that the interpretation process is inevitably subjective and political. [ See Margaret Davies Asking the Law Question (Law Book Company, Sydney, 1994), for a discussion of the nature of objectivity. See also Lucinda Finley "Breaking Women's Silence in Law ... the Dilemma of the Gendered Nature of Legal Reasoning" (1989) 64 Notre Dame L Rev 886; Catherine McKinnon Feminism Unmodified: Discourse on Life and Law (Harvard University Press, Cambridge (Mass), 1987) 55.]
F Conclusion
In the majority of cases, the language in statutes communicates effectively and causes no problems. Professor Burrows makes the important point that it is only the difficult cases that come before the courts and that in many situations, statues are clear and applying them presents no problem. [Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561]In those cases where there is some uncertainty, the most ordinary and natural meaning of the words in context should be of central importance. In addition, the courts consider the purposive approach, the Bill of Rights Act and a value-based approach to guide their interpretation of ambiguous provisions.
It is has been said that approaches to statutory interpretation "jostle with each other, and vary from case to case in their relative importance".[Sir Ian McKay "Interpretation Statutes – A Judges' View" (2000) 9 Otago LR 743, 747.] Indeed, to some extent judges will subconsciously or consciously use the statutory interpretation approach that gets the result they want to achieve. In addition, any general trends may be affected by the extent to which purpose can be determined and the importance of the fundamental value at stake. Overlaying all interpretation is the still generally accepted principle that whatever approach is used, the words should only be given meanings which they are reasonably capable of bearing.
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