In doing so, the Engineers’ Case started the modern foundation for the creation of a true nation, seeing the Constitution as merely a contractual obligation between the States was an outdated belief and there was a new understanding of the meaning of federalism . The High Court also adopted the literalist/legalistic approach through the Engineers’ Case . In creating the Constitution, the government has set out the law through framing the Constitution in words, and the words of the Constitution are binding .
The Court’s duty when there is a binding text is to interpret the meaning of the wordas by giving the literal words legal meanings because they are not at liberty to re-construct a textually binding Act, especially the Constitution . The failing of the literalist/legalist approach is that usually the issue being decided from the text does not usually have a rigid and limited meaning . Originalism The second type of methodology is originalism. The two main originalism theories are original intent and textual originalism.
Original intent is when the interpreter of the Constitution will search for the intention of the framer at the time of the construction of the Constitution using the words as their tool . Finding original intent can be very difficult as shown in the Work Choices Case . The majority of the judges argued that the meaning of the section in the Constitution could not be interpreted based on the intention of the creator because the issue before the court today was not the same as it would’ve been at the time the Constitution was constructed, therefore it is unreasonable to interpret the meaning of the section based on the framer’s intention .
1.1 INTRODUCTION The agitation for a new Constitution in Kenya was informed by various past historical injustices ranging from economic, social, cultural and civil to political matters. At the political level, issues on centralized and ironfisted governance kept popping year in year out. The passage of the Constitution of Kenya, 2010 on 4 August, 2010 and its subsequent promulgation on the 27 ...
Another problem is that the judge’s interpretation might be mistaken as trying to uncover the framer’s intention could be historically impossible . If the intentions of the framer cannot be discovered then it is unwise to use original intent at all as a method . Textual originalism is when the interpreter of the Constitution’s sole attention is on the words of the text and believed that the Constitution has a fixed meaning relevant at any one time . This type originalism was conveyed in Australia by the judgment of O’Connor J in The Drawbacks Case .
He believed to interpret the meaning of the Constitution; the interpreter needs to construe the intention communicated through the statute itself as you would with any other statute . Originalism is still criticised because of the “dead hand” theory . Moderate originalism theorists argue against the above-mentioned theory because they think that there would be no laws and no Constitution if we did not have the hand of the past as it is with past generations that norms, laws and judicial authority are all given to us .
Progressivism The Constitution was framed in the1900; therefore it follows that the framers couldn’t have possibly predicted the technological advancements that we have today . The Constitution is not like any other Statute because it is harder to amend or change and it was framed with the intention that it would be relevant and preserved indefinitely . There have been a few approaches adopted by the High Court to preserve the effectiveness of the Constitution .
The Constitution has been framed broadly and generally to extend its meaning when needed to accommodate technological advances , an example of this and the current standing of the High Court is the Grain Pool Case . In this case the High Court determined five general principals to be applied when a head of legislative power is concerned . These principals have also been used authoritatively in subsequent cases. It is important to extend the power that the Constitution has regarding certain area because of the ontinuous technological advances and as Higgins J affirmed as far back as 1908 in the Union Label Case, this is because the Constitution is not an ordinary Act but it is an Act that will assert what the law will be . In Cole v Whitfield it was recognised that to interpret the Constitution, understanding the context of the 1900 is important and can give us perception and it should be interpreted using contemporary meaning of the language . The issue with progressivism is the legitimacy of the judicial review.
All studies require that a research problem be identified and stated, and must be simple, concise, and in clear terms. Such problem will be the focus of a case study. IDENTIFY THE PROBLEM OF THE STUDY The General and specific objectives of the study must be categorically expressed. Such objectives will be the bases in conducting research activities. State the Objectives of the Study The research ...
The Court should take great care in not having judicial review go above the Constitution itself because the Constitution regulates the use of power in the present and the future . It can be seen in more recent cases in the High Court that they are moving towards progressivisms or revolutionary direction to stay effective and relevant . Other Options Although all these methods have their merits as well as their imperfections , it might be best for the High Court in interpreting the Constitution to encompass all the merits of the three methods into a hybrid option.
By using literalism/legalism the Court will be able to understand and decipher what a text means and using a legal context of traditions and principles will guide the High Court in making their decision . This is also the most commonly used method of interpreting a statute, therefore applicable to the Constitution . Using originalism will give the High Court an understanding about the historical context, which is important in the process of interpretation and could sometimes be valuable in deciding the meaning .
As today’s world is filled with new technology and advancements, there has to be some progressivism when interpreting the Constitution to enable it to last indefinitely . In using progressivism, the Court needs to be mindful not to divert excessively from the essence of the Constitution. This hybrid option could be the method that will give the High Court more cohesion and consistency by having pre-set laws or rules that can be applied to multiple types of cases because they would be relevant.
It may appear that using three methods may introduce may introduce conflicting opinions and inconsistency. On the contrary this may be overcome by the High Court using all three approaches in every case to make an appropriate determination. For instance, the Court should examine the literal and legal meaning of the word, apply its original context to have a greater understanding and use progressivism to make it relevant for today. Determining an outcome based on all of three approaches may provide the optimal and most consistent outcome.
Originally, common law was customary law, folk law, based on precedent. There was of course statutory law — the king’s law — but common law guided how it was enforced and administered. No real common law exists today, having been entirely codified as statutory law throughout the English-speaking world. There remains, however, what are sometimes termed common law rights. Now and ...
Conclusion In conclusion, it is obvious from the discussion in this that each approach has its own merits. It has been proposed in this paper that a hybrid of the methodologies merits may be the ideal method. The High Court as well as the High Court judges have not committed to one method because by itself, each method is incomplete. The Court may determine cases more consistently if it adopts the hybrid method. This will eliminate the fact that each case is determined differently. Refrences:
Tony Blackshield and George Williams, Australian Constitutional Law and Theory – Commentary and Materials, (The Federation Press, 5thed, 2010) 317-318. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd(1920).
Geraldine Chin, ‘Technological Change and the Australian Constitution’  25 Melbourne University Law Review, section 3 . Jeffrey Goldsworthy, ‘Justice Windeyer on the Engineers’ Case’  13 Monash University Law Research Series 1, . Sir Anthony Mason, ‘Constitutional Interpretation: Some Thoughts’ (1998) Adelaide Law Review 20, 50.
Tony Blackshield and George Williams, above n 1, 271. Ibid. Sir Anthony Mason, above n 5, 50. Tony Blackshield and George Williams, above n 1, 292. Leslie Zines, ‘High Court and the Constitution in 2006’ (2007) 30 (1) University of New South Wales Law Journal, 13. New South Wales v Commonwealth(2006).
Tony Blackshield and George Williams, above n 1, 293. Randy E. Barnett, ‘Scalia’s Infidelity: A Critique of the “Faint-Hearted” Originalism’ (Working Paper No 06-01, Working Paper Series, Public Law & Legal Theory, Boston University, January 2006) 2 .
Leslie Zines, above n 10,13. Randy E. Barnett, above n 13, 3-5. Tasmania v Commonwealth and Victoria (Drawbacks Case) (1904) Greene, Jamal, ‘On the Origins of Originalism’ (Working Paper 09163, Columbia Public Law & Legal Theory Working Papers, September 2009) 51 . Randy E. Barnett, above n 13, 3. Tony Blackshield and George Williams, above n 1, 315. Geraldine Chin, above n 3, Section 1. Niloufer Selvadurai, Brent Salter and Peter Gillies, ‘Challenges for the interpretation in Light of Evolving Technologies’ (2008) 15 James Cook University Law Review 201.
Communication Law and Ethics Essay Law Question: Week 4: Who can be sued in a defamation case? Outline possible defences, citing case studies. The penguin Modern English dictionary defines defamation as a false report made maliciously to injure. Other definitions of defamation include slander and calumny. The basic idea of defamation is simple. It is an attempt to balance the private right to ...
Ibid, 202. Geraldine Chin, above n 3, Section 3. Grain Pool of Western Australia v Commonwealth (2000).
Tony Blackshield and George Williams, above n 1, 763. Tony Blackshield and George Williams, above n 1, 764. Tony Blackshield and George Williams, above n 1, 964. Tony Blackshield and George Williams, above n 1, 962. Sir Anthony Mason, above n 5, 50. Sir Anthony Mason, above n 5, 49. Tony Blackshield and George Williams, above n 1, 270. Geraldine Chin, above n 3, section 3. Tony Blackshield and George Williams, above n 1, 964. Niloufer Selvadurai, above n 21, 201.