Abstract

The dissenting judgment in the case of Daikin v CSARS disrupted the new orthodoxy of a purposive approach to the interpretation of legal texts. While the judges’ criticism of the purposive theory in its current form is valid, their proposal that the old literalistcum- intentionalist approach to statutory interpretation should be revived is potentially damaging to the project of building post-apartheid jurisprudence. Rather than reviving an outdated and theoretically unsound theory of interpretation, a better approach would be to strengthen the theoretical foundations of the purposive approach. This article attempts to contribute to this task by giving an overview of hermeneutic theory as realized in Johan van der Walt’s model of law as sacrifice, read through a Habermasian lens. I argue that this approach is more radical in orientation, better suited to the later post-apartheid context, and more appropriate to the Anthropocene era. The rationale for the contra fiscum principle could be reformulated in terms of constitutional norms, and the rule could be incorporated into a more resilient purposive theory.