[32]Second. Most statutory provisions create norms that guide state officials and others who exercise power. When their interpretation is at issue, the question is how broadly or narrowly they apply. Section 30(1) does not create a norm for the application of state power. It describes an action. It prescribes a verbal formula that must be uttered if the legal consequences of lawful marriage are to follow. What it requires is action that must be performed if the parties' personal status is to be changed in relation to each other and the world. The action consists in the utterance of specified words. But it is action no less. The statutory formula in other words encodes a ‘performative utterance’[1] which the statute requires as a precondition to the happening of the marriage and its legal consequences.
[33]In my view where the legislature prescribes a formula of this kind its words can not be substituted by ‘updating’ interpretation. If the Court, and not the legislature, is to make a
- ↑ John L Austin, How to Do Things with Words, ed. J. O. Urmson and Marina Sbisá (Harvard University Press, 1962) pages 5–5, accessed at http://www.stanford.edu/class/ihum54/Austin_on_speech_acts.htm: ‘Utterances can be found… such that: A. They do not ‘describe’ or ‘report’ or constate anything at all, are not ‘true or false,’ and B. The uttering of the sentence is, or is a part of, the doing of an action, which again would not normally be described as, or as ‘just,’ saying something.’ Austin’s classic example is the marriage formula. He also instances ‘I hereby name this ship …’ and ‘I give you sixpence’. ‘In these examples it seems clear that to utter the sentence (in, of course, the appropriate circumstances) is not to describe my doing of what I should be said in so uttering to be doing or to state that I am doing it: it is to do it.’
