INTERPRETATION OF LEGISLATION
Approaches of Interpretation:
Scholars suggest that you have at least 3 broad approaches to
interpretation:
1. Pseudo - logical or textbook approach this is where you find various
rules of interpretation - literal rule etc. the rules that are known;
2. Social Policy approach - where consideration is given to social objective
principles what is it that this legislation is about and what are the
social issues, what is it that this legislation is concerned about. Here
you advance the social policy good which was intended to be advanced
by a particular legislation;
3. Free intuition approach a judge or a court should be free to interpret
legislation in such a manner as to advance their own thinking about
the legislation that they are interpreting including the power to alter
the literal meaning. However, this approach is widely criticized.
Whatever approach you are taking you will find that scholars advocate for
differentiation of statutes for purposes of legislation, they are saying that the
approach of interpretation should be different:
1. Constitutional statutes - because constitution is unique and embodies
the social aspiration of people;
2. Social statutes on the matters of health, labor, safety, policy here you
must interpret them in a manner to embody social good that is
advanced by the legislation
3. Specific reform statutes interpret then in a manner as to advance
reform objective that was intended to achieve
4. Act implementing international convention “ to interpret them in such
as a manner as to advance the objective of international convention
that was intended by the international convention.
5. Penal Statutes should be interpreted strictly in favor of the accused
person
6. Taxation statutes in such a way as to achieve a balance between the
revenue objectives of the state and interests of the Taxpayers.
This study source was downloaded by 100000858663287 from CourseHero.com on 01-03-2023 02:55:31 GMT -06:00
https://www.coursehero.com/file/14944431/Statutory-Interpretation/
, 7. Predominantly technical Legislations
There are 2 sources of Help:
I. Statutory Aids:
(What are the available aids to statutory interpretation in various legislative
instruments)-
a. Specific Interpretation Legislation In Kenya it is the General
Interpretation Act Cap 2. The purpose is to define phrases and
words that are commonly found in different pieces of legislation.
The long Title of Cap.2 embodies its purpose. Note: Cap. 2 does
not apply in the interpretation of the Constitution.
b. The Act itself may have provisions that help to interpret it
(whatever Act you are dealing with) for example:
• The long title;
• Short title;
• Some statutes have a Preamble;
• A definition section. Majority of statutes have a definition
section and it is usually section 2 of the Act. It normally
says in this Act the following words will have the following
interpretation.
• Explanation and illustrations, a good example is Cap 21
Civil Procedure Act - say you file your suit where the
Defendant resides etc and they go on giving examples;
• Marginal notes;
• Headings prefix to certain sections and Parts;
• Schedules;
• Punctuations;
• The actual text itself.
This study source was downloaded by 100000858663287 from CourseHero.com on 01-03-2023 02:55:31 GMT -06:00
https://www.coursehero.com/file/14944431/Statutory-Interpretation/
Approaches of Interpretation:
Scholars suggest that you have at least 3 broad approaches to
interpretation:
1. Pseudo - logical or textbook approach this is where you find various
rules of interpretation - literal rule etc. the rules that are known;
2. Social Policy approach - where consideration is given to social objective
principles what is it that this legislation is about and what are the
social issues, what is it that this legislation is concerned about. Here
you advance the social policy good which was intended to be advanced
by a particular legislation;
3. Free intuition approach a judge or a court should be free to interpret
legislation in such a manner as to advance their own thinking about
the legislation that they are interpreting including the power to alter
the literal meaning. However, this approach is widely criticized.
Whatever approach you are taking you will find that scholars advocate for
differentiation of statutes for purposes of legislation, they are saying that the
approach of interpretation should be different:
1. Constitutional statutes - because constitution is unique and embodies
the social aspiration of people;
2. Social statutes on the matters of health, labor, safety, policy here you
must interpret them in a manner to embody social good that is
advanced by the legislation
3. Specific reform statutes interpret then in a manner as to advance
reform objective that was intended to achieve
4. Act implementing international convention “ to interpret them in such
as a manner as to advance the objective of international convention
that was intended by the international convention.
5. Penal Statutes should be interpreted strictly in favor of the accused
person
6. Taxation statutes in such a way as to achieve a balance between the
revenue objectives of the state and interests of the Taxpayers.
This study source was downloaded by 100000858663287 from CourseHero.com on 01-03-2023 02:55:31 GMT -06:00
https://www.coursehero.com/file/14944431/Statutory-Interpretation/
, 7. Predominantly technical Legislations
There are 2 sources of Help:
I. Statutory Aids:
(What are the available aids to statutory interpretation in various legislative
instruments)-
a. Specific Interpretation Legislation In Kenya it is the General
Interpretation Act Cap 2. The purpose is to define phrases and
words that are commonly found in different pieces of legislation.
The long Title of Cap.2 embodies its purpose. Note: Cap. 2 does
not apply in the interpretation of the Constitution.
b. The Act itself may have provisions that help to interpret it
(whatever Act you are dealing with) for example:
• The long title;
• Short title;
• Some statutes have a Preamble;
• A definition section. Majority of statutes have a definition
section and it is usually section 2 of the Act. It normally
says in this Act the following words will have the following
interpretation.
• Explanation and illustrations, a good example is Cap 21
Civil Procedure Act - say you file your suit where the
Defendant resides etc and they go on giving examples;
• Marginal notes;
• Headings prefix to certain sections and Parts;
• Schedules;
• Punctuations;
• The actual text itself.
This study source was downloaded by 100000858663287 from CourseHero.com on 01-03-2023 02:55:31 GMT -06:00
https://www.coursehero.com/file/14944431/Statutory-Interpretation/
