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 texts.8 The English Law Commission on the Interpretation of Statutes9 may have helped popularize the phrase10 by proposing the purposive approach to statutory interpretation. Anglo-American legal scholars also began writing about purposive interpretation in law in their theoretical literature.11 Since von Savigny’s work,12 and under the influence of von-Ihering,13 Continental law has recognized teleological interpretation14 as a criterion, if not the primary criterion, for legal interpretation.15
The phrase “purposive interpretation” occurs frequently in court decisions and legal literature alike. The common thread running through most references to purposive interpretation is the understanding that “purpose” is a subjective term.16 It reflects, at various levels of abstraction, but particularly at the highest levels of abstraction,17 the intention of the text’s creator(s). Bennion—who devotes a lengthy chapter to purposive interpretation18—notes that the historical source of purposive interpretation is the mischief rule established in Heydon’s Case.19 Eskridge analyzes purposivism in the context of “archaeological” systems of interpretation that are based on the will of the legislature.20 Driedger,21 Cross,22 and Twining and Miers23 take a similar approach. Hart and Sachs also appear to treat “purpose” as a subjective concept.24 I say “appear” because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislature’s shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith.25 This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably. In other places, literature on the common law formulates purpose in objective terms.26 The addition of an “objective intent” arising from the language of the text creates uncertainty. Are we interested in subjective psycho-biological intent, or objective purposes? Why use the subjective language of “intent” to connote the objective concept of “purpose?” Continental law is not immune from this confusion. It distinguishes between a subjective teleological approach and an objective teleological approach without fully clarifying the relationship between the two.
Against the backdrop of these issues, I wish to clarify my stance on purposive interpretation. My formulation of purposive interpretation differs from the standard use of the phrase in the Anglo-American or Continental literature in that it is neither entirely subjective nor entirely objective. I see purpose as a legal construction, like concepts of ownership, right, and duty. It combines subjective elements (subjective purpose; author’s intent; subjective teleology) with objective elements (objective intent; the intent of the reasonable author and the legal system’s fundamental values; objective teleology) so that they work simultaneously, rather than in different phases of the interpretive process. Although the content I give to the phrase “purposive interpretation” differs from its ordinary and accepted meaning, I have decided to stick with it—and not to replace it with alternatives like functional interpretation27—because it best expresses my stance. I will now describe my theory of purposive interpretation.
The key question in any interpretive study is: What is the goal of the interpretation? What is it designed to accomplish? In the field of law, my answer is that the goal of interpretation is to realize the goal that the legal text is designed to realize. This is the starting point of purposive interpretation. The interpretation is purposive because its goal is to achieve the purpose that the legal text is designed to achieve. What is this purpose? What kind of relationship do we create between the intention of the text’s author and the “intention” of the legal system? The answer lies in constitutional principles. Constitutional considerations of the autonomy of the private will and its relationship to the social fabric are the primary determinants of the purpose of a private legal text. Constitutional considerations of democracy, separation of powers, rule of law, and the role of a judge in a democracy are the primary determinants of the purpose of a public legal text. Purposive interpretation uses this set of considerations—which shapes a legal text’s purpose—to solve the fundamental problems of legal interpretation.
Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.
The second and core component of purposive interpretation is the element of purpose (the telos).28 This is the ratio juris, the purpose at the core of the text (will, contract, statute, and constitution). This purpose is the values, goals, interests, policies, and aims that the text is designed to actualize. It is the function that the text is designed to fulfill.29 The purpose of the text is a normative concept. It is a legal construction, like a right or a legal personality, which the interpreter formulates. It is not a psychological or metaphysical concept, and it is not a fact. The author of the text formulated the text. The interpreter of the text formulates its purpose.
The purpose of a norm has two foundations: subjective and objective purpose. The subjective purpose constitutes the values, goals, interests, policies, aims, and function that the text’s author sought to actualize. This is authorial intent—the intent of the founders (constitutional interpretation); legislative intent (statutory interpretation); the joint intention of the parties to a contract (contractual interpretation); and the testator’s intent (interpretation of a will). It is their psycho-biological intent, not the intent of a reasonable person. It is the subjective intent of the author, operating at different levels of abstraction.
An interpreter learns the intent through the language of the text as a whole and the circumstances external to it, like the history of its creation. The interpreter may always look to extrinsic circumstances in his or her search for a text’s meaning. Often, the information from different sources about the subjective purpose points in one clear direction, but sometimes the sources conflict. In those instances, the interpreter seeks the meaning that best realizes the intent of the author. The more credible the information, the more weight the interpreter should give it.
The objective purpose constitutes the values, goals, interests, policies, aims, and function that the text should actualize in a democracy. This purpose, too, operates at different levels of abstraction. At the lowest level, it is what the specific author would have wanted to carry out had he or she thought about it. At the intermediate level, it is what the reasonable author would have wanted to carry out. At the high level, it depends on the type of legal arrangement in question and its characteristics. At the supreme level, it actualizes the fundamental values of the legal system. I call these types of objective purpose the “intention” or will of the system.
An interpreter learns the objective purpose from “objective” data. Some data are unique to each specific text (individual objective purpose) and are derived from the language of the text, its character, and its type. The interpreter can also study similar texts to discover objective data. Other data are general (general objective purpose) and apply to all texts. They constitute the normative umbrella for all the texts, reflecting the legal system’s fundamental values. When these values clash, an interpreter determines objective purpose by striking the right balance between the competing values, a balance that reflects their relative weight in the legal system. The balance depends on the relative significance and status of the different values at the point of decision.
The purpose of a norm is an abstract concept, composed of both its subjective and objective purpose. The first reflects the intention of the text’s author; the second, the intention of a reasonable author and the fundamental values of the legal system. The first reflects, at varying levels of abstraction, an actual intention; the second reflects, at varying levels of abstraction, a hypothetical intention. The first reflects a historical-subjective intention; the second reflects a social-objective intention. The first is a fact established in the past; the second constitutes a legal norm that reflects the present.
A unique feature of purposive interpretation is that the interpreter encounters the different data on the subjective purpose (authorial intent) and objective purpose (the legal system’s intent) in the form of rebuttable presumptions. The presumptions reflect the author’s intent (at varying levels of abstraction) and the intent of the legal system (at varying levels of abstraction). The main task of interpretation is to balance the different presumptions when they conflict. Indeed, presumptions of purpose are the foundation of purposive interpretation.30 They replace rigid interpretive rules with flexible interpretive presumptions. They help bring the intent of the author and the intent of the legal system into sharp focus at every point of the interpretive process. They help express the idea that every text is a creature of its environment. Purposive presumptions apply always and immediately.
The synthesis between a norm’s objective and subjective purposes establishes its ultimate purpose. Interpreters view these two kinds of purposes as presumptions. On the one hand, interpreters presume that the purpose of the norm is to realize the author’s intent. On the other, they presume that the norm’s purpose is to realize the intent of the legal system. To arrive at the ultimate purpose, interpreters consider the presumptions together, assigning each a status according to its significance or weight. The significance varies from text to text and from type of text to type of text. For example, in a will, subjective intent is weighted so heavily as to be the determining factor, whereas in a constitution, the intent of the legal system carries the day. In a contract, the intention of the parties weighs in respectably, but the intention of the system is also given weight. In a statute, the author’s intention (legislative intent) and the systemic intention (the intent of the statute) are both significant, and their relative weight depends on secondary distinctions between types of legislation (old or new, specialized or general, based on rules or principles, etc.). Regardless of its relative weight, each presumption, subjective or objective, remains in effect through the duration of the interpretive process.
Discretion is the third component of purposive interpretation. It is the choice that purposive interpretation gives the judge from among a few interpretive possibilities, all of which are legal. While this discretion is narrowly bounded by a limited number of interpretive possibilities, it does help the judge formulate the purpose at the core of the text. Purposive interpretation thus recognizes the indispensability of interpretive discretion in determining the ultimate purpose of the norm. This discretion operates at different junctions of the process of purposive interpretation. For example, an interpreter may need to exercise discretion in determining the limits of language; evaluating the reliability of sources of information about the author’s intent; and determining the relevance of such intent to resolving the interpretive problem. Similarly, an interpreter may need to use discretion to resolve conflicts among the values and principles that formulate the objective purpose. The primary role for discretion, however, is in determining the ultimate purpose, after assigning the appropriate significance to each presumption and resolving the conflicts among them. Of course, as supreme courts use purposive interpretation more and more, they will develop case law to resolve some of the questions raised by interpretation, thus narrowing judicial discretion. Discretion will always have a place in purposive interpretation, however, because it is impossible to construct a theory of interpretation without interpretive discretion. Interpretive discretion exists within every system of interpretation, whether or not the system admits to it. Nevertheless, discretion should not become the primary element of interpretation. It is a secondary component, confined to particular situations.
Purposive interpretation pinpoints, along the range of semantic meanings of the legal text, a legal meaning that realizes the purpose of the norm. Purpose is the end, and language is the means. The interpreter learns about the end from the means. Purposive interpretation recognizes the presumption that the language of a norm provides information about its purpose. To be sure, the interpreter learns about the end from other sources as well. He or she may look to any factual or legal source, beyond the text, to find the end. He or she may go beyond the limits of the means (the language) to learn about the end (the purpose). The interpreter may not, however, realize an end that does not have at least a minimal semantic grounding in the means. Purpose must remain within the limits of language. The interpreter need not necessarily learn the purpose from reading the language of the text. The text’s language can be general, like language conferring the authority to exercise discretion. It does not always sufficiently clarify the purpose. To satisfy the requirement of semantic grounding, however, the purpose—which the interpreter may have learned from sources external to the language—must be realizable through the textual language. The language, the semantic medium, must be able to bear the purpose of the norm.
Purposive interpretation has three components: language, purpose, and judicial discretion. There is no order for these components. Each interpreter starts with the component that seems appropriate. Each interpreter acts in accordance with his or her personality and character traits. However, interpreters may not use only some of the components. They must rely on both language and purpose, and, in the hard cases, they must exercise judicial discretion. Purposive interpretation does not take place in separate stages; it is integrative. It does not first turn to language and then to purpose; it does not first turn to one kind of purpose and then to the other. The interpretive conception is holistic. The interpretive presumptions, both subjective and objective, apply immediately with the start of the interpretive process, and they accompany it to its conclusion. Indeed, purposive interpretation is a circular process. The point of departure is irrelevant, so long as interpreters assess all the data and circle back to the starting point. Most importantly, purposive interpretation does not set an order for the use of interpretive and non-interpretive doctrines. Interpreters may begin with non-interpretive doctrines and only later start interpreting.
The fundamental problem in legal interpretation is the relationship between text and context, form and substance.31 Purposive interpretation views purpose as the context in whose light the text should be given meaning. Purpose is the substance that gives meaning to the form. Purposive interpretation takes a stand on each of the three secondary questions at the core of interpretation. First, purposive interpretation takes an integrative stance on the dichotomy between the intent of the author and the intent of the legal system. It gives expression to both authorial intent and the “intention” of the legal system by presuming that the purpose of the norm is to realize both kinds of intent. When there is an internal conflict between the two, purposive interpretation establishes criteria for resolving it. These criteria are based on constitutional considerations. In some cases, there is room for discretion.
The second secondary question focuses on the intention of the text’s author. It asks whether to focus on the “true” intention or the “expressed” intention. Purposive interpretation requires attention to be given to the true intention of the text’s author, and not just his or her expressed intention. The interpreter can learn about the subjective purpose from any credible source, not just from the language of the text. Having said that, the subjective purpose arising from the language of the text is generally more credible than the subjective purpose derived from sources external to the text. Purposive interpretation expresses this principle as a rebuttable presumption in favor of the intention arising from the text. Furthermore, once the interpreter determines the “true” intention of the author, he or she may only carry it out if the language used by the author allows it.
The third secondary question focuses on objective purpose. This purpose reveals the “objective substance” of the text. It is the intention of the legal system, expressed in purposive presumptions that reflect the objective purpose of the system’s various features and elements. The interpreter resolves internal conflicts among these presumptions by balancing them according to their relative significance.
Despite the vast literature on interpreting the various legal texts, few scholars have attempted a general interpretive theory that applies to all types of legal texts. Purposive interpretation aspires to that goal. It assumes that there are common elements in the interpretation of all legal texts (constitution, statute, contract, will) while recognizing the individuality of each type of text. It gives each legal text the “breathing room” it needs to convey its individuality, usually expressed in the balance between the text’s subjective and objective purpose. Secondary distinctions, tailored to the particular type of text, then shape that balance. These distinctions consider the age of the text (treating old and new texts differently); the scope of the issues that the text regulates (interpreting a code differently from a specific text); the regime and its essence (treating a text created in a totalitarian regime differently than its democratic counterpart); and content-based factors of each text that affect the relationship between the author’s intention and the intention of the legal system in constructing the purpose.
Generally—subject to the relevant secondary distinctions—in constitutional interpretation, objective purpose is the determining factor, while subjective purpose (the founders’ intent) plays a secondary role. In the interpretation of contracts and wills, subjective purpose is primary. Objective purpose plays a secondary and supplementary role, but it becomes more significant when there is no credible information about the intent of the testator or the joint intent of the parties. In interpreting some kinds of contracts—an adhesion contract, a consumer contract, or a collective agreement, for example—judges should give more weight to objective purpose. In statutory interpretation, the balance between subjective (legislative intent) and objective (the intent of the reasonable legislator or of the legal system) purpose depends on the type of statute. The interpreter of an old statute gives more weight to objective purpose, while subjective purpose is weightier for a new statute; the interpreter of a generally applicable statute (like a code) emphasizes objective purpose, while the interpreter of specific administrative legislation favors subjective purpose. These distinctions allow purposive interpretation to retain its interpretive consistency while preserving the individuality of each text.
Purposive interpretation is unique for its holistic, universal approach. A judge interpreting a text according to its purpose acts within the context of a legal system. The text is a creature of its environment. The two exist in symbiosis. In interpreting a single statute, a judge interprets all statutes. During the interpretation of a text, there is a continuous flow from the text to its legal system and from the legal system to the text. This flow occurs as the interpreter balances the unique purpose of each text with the legal system’s principles, common to all texts, which inform the individual purpose. Varying levels of abstraction facilitate a free flow between the individual and the generic. Purposive interpretation thus seeks to fashion a purpose that creates harmony between the meaning given to a text and the legal system surrounding it. The goal is synthesis and integration between text and legal system. Of course, that is not always possible. Sometimes the language of the text gets in the way. Sometimes subjective purpose—the determining factor for some kinds of texts—prevents synthesis. Sometimes, the system’s values themselves contradict each other. Even if the goal is unattainable, however, judges must continue to aspire to synthesis.
The purposive interpretation I discuss in this book creates a general framework for the principles of interpretation. It carves out an interpretive space. I have filled in parts of this space with my own views about purposive interpretation. Other purposive interpreters and other legal systems may fill in the space differently. For example, different purposive interpreters and different legal systems are likely to disagree over the content of the various purposive presumptions and the relationship between them. We should therefore distinguish between the general framework establishing the essence, character, and limits of purposive interpretation, and the reciprocal relationship, within that framework, among its different and nuanced components.
1 For a discussion of “purpose,” see J. Corry, “Administrative Law and the Interpretation of Statutes,” 1 U. Toronto L.J. 286, 292 (1936); M. Radin, “A Short Way with Statutes,” 56 Harv. L. Rev. 388, 400 (1942). For a historical analysis, see W.D. Popkin, Statutes in Court 131 (1991). Popkin identifies Judge Hand and Justice Frankfurter as the central figures in the United States who adopted the purposive approach. Substantively—as opposed to semantically—Heydon’s Case (1584) 3 Co. Rep. 7a; 76 E.R. 637 may be the historical source of purposive interpretation. See Cross, supra p. 3, note 3 at 17. See also Viscount Delhorne’s opinion in Stock v. Frank Jones (Tipton) Ltd. [1978] 1 W.L.R. 231, 234.
2 See, e.g., People v. Rodney, 21 N.Y. 2d 1, 4 (1967); Commonwealth v. Valentine, 419 A.2d 193 (Pa. Super.) (1979). Justice Holmes used the term purpose as early as the beginning of the twentieth century. U.S. v. Whitridge, 197 U.S. 135, 143 (1904) (Holmes, J.) (“The general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down”). The American realists also advocated using purpose as a criterion for interpretation, infra p. 225, as did legal process scholars, infra p. 227.
3 See, e.g., Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850, 879; Kennedy v. Spratt [1972] A.C. 83; Carter v. Bradbeer [1975] 3 All E.R. 158, 161; Notham v. Barnet Council [1978] 1 W.L.R. 220, 228; Jones v. Wrotham Park Settled Estates [1980] A.C. 74, 105; Gold Star Publications Ltd. v. Director of Public Prosecution [1981] 2 All E.R. 257.
4 See Driedger, supra p. 69, note 31 at 35; Côté, supra p. 77, note 65 at 313. Similarly, then-Justice Dixon used the phrase “purposive analysis” in Hunter v. Southern Inc. (1984) 11 D.L.R. (4th) 641, 649. See also sR. v. Big M Drug Mart [1985] 1 S.C.R. 295, 344; Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486, 499; L. Walton, “Making Sense of Canadian Constitutional Interpretation,” 12 Nat’l J.Const.L. 315, 340 (2000–2001).
5 Mayne Nickless Ltd. v. Federal Comm’n of Taxation [1984] VR 863. See also Kingston and Anor v. Keprose Pty Ltd. (1987) 11 NSWLR 404.
6 Donselaar v. Donselaar [1982] 1 NZLR 97, 114. See also J. Allan, “Statutory Interpretation and the Courts,” 18 New Zealand U. L. Rev. 439 (1999).
7 C.A. 277/82 Nirosta Ltd. v. State of Israel, 37(1) P.D. 826, 832; C.A. 65/82 Land Betterment Tax Administrator v. Hirshkowitz, 39(4) P.D. 281, 288.
8 See, e.g., Antaios Cia. Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191.
9 Law Comm’n, The Interpretation of Statutes (1969). The influence may also originate from England’s being a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms and a member of the European Community, both of which employ “teleological interpretation.” See Steyn, supra p. 18, note 49 at 85.
10 Cross takes this view. Supra p. 3, note 3 at 18.
11 See Driedger, supra p. 69, note 31 at 35; Côté, supra p. 77, note 65 at 313; Cross, supra p. 3, note 3 at 17; Bennion, supra p. 6, note 13 at 731; Eskridge, supra p. 41, note 126 at 25.
12 F.C. von Savigny, System des heutigen römischen Rechts 213 (vol. 1, 1840).
13 R. von-Ihering, Der Zweck in Recht (vol. 1, 1877; vol. 2, 1883). The first volume is available in translation: R. von-Ihering, Law as Means to an End (I. Husik trans., 1913).
14 For a discussion of teleological interpretation, see Côté, supra p. 77, note 65 at 313; Larenz, supra p. 3, note 5; Zippelius, supra p. 3, note 5. For a discussion of purposive interpretation in Scandinavia, see F. Schmidt, “Construction of Statutes,” 1 Scandinavian Studies in Law 157 (1957); P.O. Ekelof, “Teleological Construction of Statutes,” 2 Scandinavian Studies in Law 77 (1958); H. Thornstedt, “The Principle of Legality and Teleological Constructions of Statutes in Criminal Law,” 4 Scandinavian Studies in Law 211 (1960); S. Strömholm, “Legislative Material and the Construction of Statutes: Notes on the Continental Approach,” 10 Scandinavian Studies in Law 175 (1966); A. Peczenik and G. Bergholz, “Statutory Interpretation in Sweden,” in Interpreting Statutes 311 (D.N. MacCormick and R.S. Summers eds., 1991). In James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (UK) Ltd. [1977] 2 W.L.R. 107, 112, Lord Denning writes that European judges “adopt a method which they call in English by strange words—at any rate they were strange to me—the ‘schematic and teleological’ method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose . . . behind it.”
15 Zippelius, supra p. 3, note 5. See also K. Zweigert and H.J. Puttfarken, “Statutory Interpretation—Civilian Style,” 44 Tul. L. Rev. 704 (1970).
16 See Lord Diplock, one of the first to use the phrase, “purposive interpretation,” in Sweetv. Parsley [1970] A.C. 132, 165 (“‘Purpose’ connotes an intention by some person to achieve a result desired by him”).
17 Dickerson, supra p. 3, note 3 at 88: “Lawyers tend to identify the immediate legislative purpose with ‘legislative intent’ and to reserve the term ‘legislative purpose’ for any broader or remote (‘ulterior’) legislative purpose.” See also Sunstein, supra p. 13, note 31 at 428; M. Redish and T. Chung, “Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation,” 68 Tul. L. Rev. 803, 815 (1994).
18 Bennion, supra p. 6, note 13 at 731–50.
19 Id. at 732, citing to Heydon’s Case (1854) 3 Co. Rep. 7a, 7b.
20 Eskridge, supra p. 41, note 126 at 25.
21 Driedger, supra p. 69, note 31 at 36.
22 Cross, supra p. 3, note 3 at 20, 33.
23 W. Twining and D. Miers, How to Do Things with Rules: A Primer of Interpretation 186 (4th ed. 1999).
24 Hart and Sachs, supra p. 3, note 3 at 1378.
25 Id.
26 See Scalia, supra p. 34, note 103 at 17; p. 265, infra.
27 This phrase has also been used already. See MacCormick and Summers, supra p. 31, note 92 at 187.
28 Supra p. 86. Purposive interpretation belongs to the family of teleological interpretation. Infra p. 110.
29 See L. Fuller, The Morality of Law (2nd ed. 1969); G. Gottlieb, The Logic of Choice 105 (1968); J. Wróblewski, The Judicial Application of Law 103 (1992); Moore, supra p. 24, note 67 at 265.
30 Infra p. 170.
31 Supra p. 26.