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Purposive Interpretation in Law

Purposive Interpretation in Law

Aharon Barak
Translated from the Hebrew by Sari Bashi
Copyright Date: 2005
Pages: 448
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  • Book Info
    Purposive Interpretation in Law
    Book Description:

    This book presents a comprehensive theory of legal interpretation, by a leading judge and legal theorist. Currently, legal philosophers and jurists apply different theories of interpretation to constitutions, statutes, rules, wills, and contracts. Aharon Barak argues that an alternative approach--purposive interpretation--allows jurists and scholars to approach all legal texts in a similar manner while remaining sensitive to the important differences. Moreover, regardless of whether purposive interpretation amounts to a unifying theory, it would still be superior to other methods of interpretation in tackling each kind of text separately.

    Barak explains purposive interpretation as follows: All legal interpretation must start by establishing a range of semantic meanings for a given text, from which the legal meaning is then drawn. In purposive interpretation, the text's "purpose" is the criterion for establishing which of the semantic meanings yields the legal meaning. Establishing the ultimate purpose--and thus the legal meaning--depends on the relationship between the subjective and objective purposes; that is, between the original intent of the text's author and the intent of a reasonable author and of the legal system at the time of interpretation. This is easy to establish when the subjective and objective purposes coincide. But when they don't, the relative weight given to each purpose depends on the nature of the text. For example, subjective purpose is given substantial weight in interpreting a will; objective purpose, in interpreting a constitution.

    Barak develops this theory with masterful scholarship and close attention to its practical application. Throughout, he contrasts his approach with that of textualists and neotextualists such as Antonin Scalia, pragmatists such as Richard Posner, and legal philosophers such as Ronald Dworkin. This book represents a profoundly important contribution to legal scholarship and a major alternative to interpretive approaches advanced by other leading figures in the judicial world.

    eISBN: 978-1-4008-4126-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Introduction
    (pp. xi-xx)

    It is the well-known saying of one judge that books on spirituality and books on legal interpretation are two kinds of books he does not read.¹ That view is unfortunate. In recent years, legal scholars have written numerous books and hundreds of articles on legal interpretation, many of them valuable and worth reading. Indeed, the question is not whether books on interpretation in law should be read, but rather whether there is room for another book on the topic. How does this book differ from its predecessors? What makes it worth reading?

    The question is apt, and I hope my...


    • CHAPTER ONE What Is Legal Interpretation?
      (pp. 3-60)

      “Interpretation” in law has different meanings.¹ Indeed, the word “interpretation” itself must be interpreted.² I define legal interpretation as follows: Legal interpretation is a rational activity that gives meaning to a legal text.³ The requirement of rationality is key—a coin toss is not interpretive activity. Interpretation is an intellectual activity,⁴ concerned with determining the normative message that arises from the text.⁵ What the text is and whether it is valid are questions related to interpretation, but they are distinct from it. I assume the existence of a valid legal text. The question is what meaning to attach to that...

    • CHAPTER TWO Non-Interpretive Doctrines
      (pp. 61-82)

      Interpretation operates within the limits of language. It imparts to the text a meaning that its (public or private) language can bear. Non-interpretive doctrines operate beyond the language of the text. They impart a right according to the text, even though that right is not grounded in the language of the text. Consider a will naming Richard and Linda as the heirs, where Richard and Linda are the testator’s son and daughter. After the making of the will, but before the death of the testator, a third child, Luke, is born. The facts show that the testator wanted Luke to...


    • CHAPTER THREE The Essence of Purposive Interpretation
      (pp. 85-96)

      The word “purpose” in the interpretation of legal texts is not new to common law tradition.¹ It often appears alongside or instead of the word “intent.” In contrast, the phrase “purposive interpretation” (or “purposive construction”) is relatively new, apparently surfacing in common law traditions at the end of the 1960s and beginning of the 1970s. It appeared simultaneously in American,² English,³ Canadian,⁴ Australian,⁵ and New Zealand⁶ common law. “Purposive interpretation” cropped up in Israeli law during this period, too.⁷ The new phrase, developed primarily in the context of statutory interpretation, but it was also used in the interpretation of other...

    • CHAPTER FOUR The Semantic Component of Purposive Interpretation
      (pp. 97-109)

      Every theory of interpretation is based on semantic theory.¹ The object of legal interpretation is a text, whether enacted into law or not, that is expressed through the medium of language. The text is communicative; it is designed to establish a legal norm to which people will conform their behavior. The goal of interpretation is to understand the language of the text. Because the limits of language set the limits of interpretation, we must understand the essence of language and the problems it raises. The difficulty is that there is no one theory for understanding language; each theory evaluates language...

    • CHAPTER FIVE The Purposive Component of Purposive Interpretation
      (pp. 110-119)

      According to purposive interpretation, the purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text. The author of the text created the text. The purpose of the text is not part of the text itself. The judge formulates the purpose based on information about the intention of the text’s author (subjective purpose) and the “intention” of the legal system (objective purpose).

      According to purposive interpretation, interpretation is analysis of the text, not psychoanalysis of its author.¹ The judge analyzes the text using interpretive criteria formulated based on both subjective...

    • CHAPTER SIX Subjective Purpose: AUTHORIAL INTENT
      (pp. 120-147)

      The subjective purpose of a legal text is the subjective intent of its author. When the author is an individual, the subjective purpose is his or her intent. For a will, it is the intent of the testator. When two authors create the text, the subjective intent is the joint intent of the two authors. This is the case for most contracts, where subjective intent is the joint intent of the contracting parties. When the author of the text is a collective body, it is the shared collective intent of that entity (members of a constitutional assembly; members of the...

    • CHAPTER SEVEN Objective Purpose: (Intent of the Reasonable Author; Intent of the System)
      (pp. 148-181)

      The objective purpose¹ of a legal text is the intent of the reasonable author. At a high level of abstraction, it is the “intent of the system.” The intent of the system is the values, objectives, interests, policy, and function that the text is designed to actualize in a democracy. It is determined by objective criteria. It does not reflect an actual intent, but rather “hypothetical” intent (individual or general). It is not a physical-biological-psychological fact. It does not reflect a historical event. It cannot and need not be proven with evidence. It does not express the “real” intent of...

    • CHAPTER EIGHT The Purposive Component: ULTIMATE PURPOSE
      (pp. 182-206)

      We arrive at the decisive stage of the interpretive process. It is the stage that distinguishes purposive interpretation from other systems of interpretation. At this stage, judges must formulate the ultimate purpose of the text. They use that purpose to pinpoint the legal meaning of the text along the range of its semantic meanings. This stage is unique to purposive interpretation. It tries to synthesize and integrate subjective and objective purpose. This attempt raises two separate sets of questions:First, how do judges achieve the integration, and on what is it based? Andsecond, what justifies the integration, what are...

    • CHAPTER NINE Discretion as a Component in Purposive Interpretation
      (pp. 207-217)

      Purposive interpretation is based on language, purpose, and discretion.¹ Language sets the limits of interpretation.² Purpose determines the choice of legal meanings, within the boundaries of language. Discretion operates when the purpose of the text does not point to a single, unique legal meaning. I noted as much in a case, saying that, in interpretation, there is

      an entire set of situations in which the interpreter of a legal text (whether it be contract, will, legislation, or constitution) encounters a number of potential purposes, and he cannot formulate the ultimate purpose of the norm grounded in the text. In ordinary...

    • CHAPTER TEN The Theoretical Basis for Purposive Interpretation
      (pp. 218-259)

      There is no “true” interpretation.¹ The text cannot establish what the best system of interpretation is for understanding it, because we understand the text itself only through its interpretation. Interpretation is not just discovery. It is also creation. The question is what “creation” is best.

      The fact that there is no true interpretation does not mean that every interpretation is good or “correct.” Every legal community develops a legal tradition and legal culture over the course of years. That development includes establishing which systems of interpretation are legitimate and which are illegitimate. It establishes the range of interpretive legitimacy. But...

    • CHAPTER ELEVEN Purposive Interpretation and Its Critique of Other Systems of Interpretation
      (pp. 260-304)

      Subjective systems of interpretation tell an interpreter to give a text the meaning that actualizes the intent of its author. These systems accord well with similar theories from the field of literature. According to Hirsh’s theory, for example, there is only one valid interpretation, the one that uncovers the meaning that the author of the work sought to give it. Such meaning is fixed and static.¹ Intentionalist systems in law take a similar approach.² They differ over the level of abstraction at which they consider the historic intent of the text’s author. They also disagree over the sources from which...


    • CHAPTER TWELVE The Interpretation of Wills
      (pp. 307-317)

      Three traits characterize a will:¹First, a will is the product of the testator’s intent. Testators may express their intent in any language, lexicon, or sign they choose. They may call black, white, and white, black. Language is their raw material. That is the difference between a will and a public law document, addressed to the public and therefore obligated to speak in a language that the public understands. A will reflects the testator’s thoughts and intent. He or she therefore may choose to express it any way he or she likes. Wills share this linguistic flexibility with contracts.Second,...

    • CHAPTER THIRTEEN The Interpretation of Contracts
      (pp. 318-338)

      A contract expresses the autonomy of the contractual parties’ private will, which is a constitutional right that derives from the right to human dignity and the right to property. The right to human dignity safeguards the right to decide whether to communicate through a contract and with whom to communicate, and the freedom to formulate the content of the contract. In contrast to a will—which also expresses private autonomy—a contract creates reasonable expectations among the parties to it. It creates reliance on itself and on its results. It can also create a reliance interest in third parties


    • CHAPTER FOURTEEN Statutory Interpretation
      (pp. 339-369)

      In a democracy predicated on the separation of powers, the job of the legislature is to pass statutes. The statutes are subject to the constitution, which reflects legislative supremacy, the supremacy of human rights, and the social values grounded in the constitution.¹ The legislature uses statutes to make social policy. Every statute integrates into the legislative system; the legislative system integrates into the legal system as a whole, which is comprised of values, principles, and rights. The role of the judge is to protect democracy and to bridge the gap between law and society’s needs, giving expression to legislative supremacy...

    • CHAPTER FIFTEEN Constitutional Interpretation
      (pp. 370-394)

      A constitution is a legal text¹ that grounds a legal norm. As such, it should be interpreted like any other legal text. However, a constitution sits at the top of the normative pyramid. It shapes the character of society and its aspirations² throughout history. It establishes a nation’s basic political points of view. It lays the foundation for social values, setting goals, obligations,³ and trends. It is designed to guide human behavior over an extended period of time, establishing the framework for enacting legislation⁴ and managing the national government.⁵ It reflects the events of the past, lays a foundation for...

  7. Appendix 1 The Structure of Legal Interpretation
    (pp. 395-395)
  8. Appendix 2 Purposive Interpretation
    (pp. 396-396)
  9. Appendix 3 Weighting Subjective and Objective Purposes
    (pp. 397-398)
  10. Index
    (pp. 399-423)