Faculty of Law, University of Oslo, Oslo, Norway
The Plain Fact Approach to Legal Interpretation
The increased authority of the legislator under authoritarian conditions has been studied in depth by David Dyzenhaus in his study of the South African Appellate Division under apartheid. Dyzenhaus rejects positivism as an explanation for judicial acquiescence of oppressive measures by the rulers in power. Instead, he accredits it to what he calls the “plain fact approach”. In the plain fact approach, law is applied as it exists and not according to what morality requires. The judge “looks to a pattern that exists as a matter of historical fact in the legal acts and decisions of the past, mainly those of the legislator”.1 The pattern to be applied is the result of an intentional design by the actual authors of the acts, the holders of power over legislation.
The plain fact approach to statutory interpretation has similarities to what continental lawyers call the subjective approach or the subjective theory of interpretation, that is, that the judge is bound by, and should strive to establish, the meaning held by the legislator when enacting the statute. Because of this approach, South African judges felt compelled to give decisive significance to the racist ideology of the legislator and to interpret its statutes so as to give this best possible effect as can be seen in the extreme when applied so that “the greater the expressed restrictions (on personal liberty), the greater the implied restrictions”.2 In light of this, principles embedded in common law, such as equality and rule of law, had to yield to the clear discriminatory intent of the apartheid legislator.
Part of the plain fact approach is the reading of the statutes as pointers to this pattern. These pointers are taken as counterpointers to what would otherwise follow from general principles of law.3 A good example of such a reading of the law is the Roussow v. Sachs case, where a person interned under the 90-day rule was denied access to reading matter and writing material during the duration of his detention because this would make the detention less effective and thus defeat the purpose of the legislator. By this reading, a statute that authorises the administration to make controversial decisions implies departures from due process since due process would make the decision-making “barely manageable”,4 a statute that authorises separation of people on the grounds of colour and race implies powers to make separations that are unreasonable since this is “inevitable”,5 and a statute that authorises great restrictions to imply even greater restrictions shows a parliamentary intent for the restrictions to be effective.6
In Dyzenhaus’ view, the plain fact approach is an attitude of the judge that he brings with him when he comes to the statutory interpretation and serves as the interpretative context.7 Obstacles encountered by materials or arguments are seen in light of this context. In light of this, principles embedded in common law such as equality and rule of law had to yield to the clear discriminatory intent of the apartheid legislator.
In the South African context, the judges were dealing with the relationship between apartheid legislation and rule of law principles based on common law. The legislation interpreted by the judges was, for the most, legislation passed by a legislator infused by the apartheid ideology. In Nazi Germany, this was different as the vast body of legislation predated the Nazi rule and was clearly passed with a legislative intent more favourable to individual rights and the rule of law than the Nazi rulers. The judges therefore had to depart from a subjective approach to statutory interpretation and interpret the statutes so as to give them an “objective” meaning in light of the present circumstances. German judges consequently employed the objective approach to interpretation of statutes.8 In the objective approach, the distinction between the statute and the legislator is crucial. The statute is interpreted “objectively”, that is, independently of the subjective intentions of the legislator. As a method of statutory interpretation, this has parallels to what Dyzenhaus labels the “common law approach” where the interpretative context and not the intent of the historical content is the “master over legal meaning”.9
The prime elements of the interpretation of the Nazis were the wording of the statute, its aims, and their realisation in the current setting, where the ideology of the Nazi Party formed the interpretative context. The new ideology was not constructed as in opposition to the existing law but as part of its subject matter.10 In this way, the Nazi lawyers could untie the bonds between legislation inherited from the old regime and its rule of law values and apply them in light of the ideology and requirements of the new times without departing openly from their inbred loyalty to the law. Although this approach was of most importance when applying legislation that predated the Nazi takeover, the approach also ensured that the regime was not limited even by its own legislation. Adherence to the statute in its originally intended meaning or to the strict interpretation of its wording was scorned by the Nazis as “normativism”.
On the face of it, this seems to be an approach that differed from the one taken by the courts in South Africa for the respect of legislative authority. The South Africans stuck firmly to the authority of the legislator, whereas the German judges seemed to undermine it. If we go deeper, we see, however, that there are similarities. The Nazi judges showed great adherence to their current legislator and authority in power. By the means of traditional legal techniques, such as the construction of new legal concepts and ideas, the use of basic principles, restrictive interpretation, contextual interpretations, and analogies, they sought to construct a coherent and applicable normative body of principles from the programme and ideology of the Nazi Party.11 In most cases, departures from the previous legislation and from the rule of law were substantiated not through open evaluations of conflicting values but through arguments based on positive legal sources and through traditional legal techniques such as extensive or restrictive interpretation, analogies, or systemic arguments to fill gaps in the law.12
The main task facing the German judiciary was different from the South African context as the whole existing body of law had to be reinterpreted to be applied as a tool for National Socialism. The basic element of how the judge approached statutes and the other legal material of relevance seemed nevertheless to be the same: the basic ideological pattern of the ruling party is taken as the interpretative context and most authoritative source of law. The South African judges who extended apartheid took their interpretative pattern from the apartheid legislation and the ideology pursued by the legislator. Since the basic law that had to be reformed by this legislation was the unwritten law of the common law, this entailed taking a subjective approach to statutory interpretation. The ideological pattern was constructed both from positive law in the form of legislation and from non-positive law in the form of the ideology of the National Party and the white ideology of the differences of races and the perceived need to protect the white Christian civilisation of the South African community. The German judges also took their interpretative pattern from the ideology pursued by the legislator. But since the law that had to be reformed in their case mainly consisted of statutory law in the civil law tradition, this entailed taking an objective approach to statutory interpretation. Also, their ideological pattern was constructed both from positive and non-positive sources.
Taking this into account, Dyzenhaus’ plain fact approach seems to fit the approach of the Nazi judges quite well if we shift their emphasis from the pattern intended by the legislator of the past to the pattern intended by the rulers of the present. The German judges looked to the ideology of the Nazis as an interpretative context to be applied both to the legislation of the old regime and to the legislation of the Nazi regime. Only Nazi legislation was taken as pointers to the intent of the legislator, however, and these pointers were used as counterpointers to consequences to be drawn or inferred from the older legislation, as well as new legislation.
The result of the two approaches was the same: to achieve a realisation of the positive morality of the rulers in power. We see the same results when we compare Germany and South Africa as we see when we compare Nazi Germany and Vichy France. Also here, we see that German and French lawyers came to similar results regarding the reinterpretation of the law to accommodate the racial category of Jewishness, despite divergent and even contradictory interpretative methods. The problem then is not related to this or that legal approach or method but to the relationship between the judiciary and the governing standards of evaluation held by those in power. Judges adapted their method of interpretation to fit the rulers and the ideology of the day. The steady compass that is used for navigation is not a method of interpretation but a loyalty to the society they are serving as an important branch of the ordering state. As maintained by Rüthers, legal methodology is intended not as an instrument against the societal sense of justice but as a method for its realisation.13 The argument was made in more general terms by Hannah Arendt, who pinpoints it nicely:
The total moral collapse of respectable society during the Hitler regime may teach us that under such circumstances those who cherish values and hold fast to moral norms and standards are not reliable: we know now that moral norms and standards can be changed overnight, and that all that then will be left is the mere habit of holding fast to something.14
Why is it that the authority of the legislator is even more persuasive to the courts when the legislator is oppressive and challenges the values of the rule of law? One answer to this could be that under such conditions, the legislator asserts his authority more forcibly than under more normal conditions. We have seen that the ideological and political pressure exerted on the judges after the Nazi takeover was severe. This was not only a negative pressure but also a positive one in the sense that the Nazis promised the return of the old order, the respect for authority, and the resurrection of the position of judges as important members of society.15 Also, many judges supported the ideology of the Nazi regime, particularly the racial and nationalist parts of it.