Purposive theory
Encyclopedia
Purposive theory is a theory
of statutory interpretation
that holds that common law
courts should interpret legislation
in light of the purpose behind the legislation. Purposive theory stands in contrast to textualism
or statutory derogation, two other prominent common law interpretation theories.
(records of debates in Parliament before an Act is passed) may be consulted. Lord Griffiths
stated (617),
UK Courts must adopt a purposive (teleological) approach in interpreting laws implementing European Community law (see Litster v Forth Dry Dock
, among others).
, among others.
Purposive theory usually manifests in court opinions in the United States when courts examine the legislative history
of statutes in an attempt to resolve ambiguity or confirm plain meaning. For example, a court might look to a Congressional
committee report or the transcript of floor debate to determine Congress's overarching purpose for adopting a statute.
How much weight to give to purpose is open to debate; thus, in practise, purposivists could notionally be classified as strong purposivists and weak purposivists. Strong purposivists, such as Justice Stephen Breyer
would argue that a statute's purpose is more important than its text (that is, they are strong purposivists because when interpreting the statute, its purpose is considered as more important than its text). An apt example of Breyer's approach might be his dissent in Medellin v. Texas
, where he faulted the court's construction of a treaty because "it looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language)"; in response, the Court "confess[ed] that we do think it rather important to look to the treaty language to see what it has to say about the issue. That is after all what the Senate looks to in deciding whether to approve the treaty." Less controversially, "weak purposivists" might consult the statute's purpose only as a device for interpreting vague provisions of its text, and in no circumstances to override the text.
Criticism of purposivism has come from several fronts, including but not limited to those holding conservative judicial views. It been criticized by, among many others, Judge Richard Posner
and Cass Sunstein
. Reviewing Justice Breyer's book Active Liberty
, Posner wrote that Breyer "overlooks the strongest argument against the purposive approach: that it tends to override legislative compromises," while Sunstein worried that "[i]f judges are asked to say what 'reasonable' legislators would like to do, they are all too likely to say what they themselves would like to do."
Judicial theories flowing from formalism
(such as textualism
, originalism
etc., as espoused by Supreme Court
Justice Antonin Scalia
or Judge Frank Easterbrook), challenge purposive theory's reliance on legislative history, arguing that there is no need to examine legislative history, which is often unreliable, to confirm plain meaning or resolve ambiguity, and moreover, the legislative history is not the law: Congress has not enacted the legislative history, but only the text of the statute. From a formalist perspective, one of the same problems that invalidates intentionalism also invalidates purposivism: that not every member of Congress (nor indeed, no two members) need agree on the purpose or intentions of a law in order to make it law. The law exists, freestanding, without regard to what, if anything, any particular legislator or group of legislators had in mind as a purpose or intent when voting for it, and thus the law is the text that is passed.
in his 1974 book, The Construction of Statutes. Driedger referred to this approach not as "purposive", but as "the modern principle" of statutory interpretation.
This approach has since been endorsed by the Supreme Court of Canada
in a number of cases, and is now the dominant approach to statutory interpretation.
In R. v. Big M Drug Mart Ltd.
, [1985] 1 SCR 295, Justice Dickson
, speaking for the majority of the court, wrote, at paragraph 116:
In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 1998 CanLII 837 (S.C.C.) http://www.canlii.org/ca/cas/scc/1998/1998scc5.html Justice Iacobucci
, speaking for the whole court, wrote the following:
Justice Iacobucci went on to cite section 10 of Ontario's Interpretation Act, which stated, "Every Act shall be deemed to be remedial ... and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit." Similar provisions exist in the Interpretation Act of each province of Canada as well as at the federal level.
The purposive approach was reinforced in Bell ExpressVu Limited Partnership v. Rex, [2002] http://www.canlii.org/ca/cas/scc/2002/2002scc42.html, where Justice Iacobucci, again for the whole Court, reiterated that Driedger's rule is the overarching approach to statutory interpretation in Canada. Other philosophies, such as a strict interpretation of penal statutes, may apply in the case of an ambiguity, but only in the case of an ambiguity that arises following the application of the modern rule.
The Supreme Court ruling in Free World Trust v. Électro Santé Inc.
[2000] created a precedent
that has been cited in at least 148 subsequent Canadian court decisions. The case was noted in Canada for setting out "the test for patent infringement
" and "the principles of purposive claim construction".
In determining the purpose of a statutory provision, courts are to have regard to the context for the provision at the outset, and not only when there is an ambiguity or inconsistency in the meaning of the provision: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408. Apart from the structure of the statute itself, the statutory context to which the courts may have regard includes relevant Explanatory Memoranda to the statute and the reports of Law Reform Bodies that created the need for the particular statutory provision: see CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; also see Acts Interpretation Act 1901 (Cth), s15AB.
Theory
The English word theory was derived from a technical term in Ancient Greek philosophy. The word theoria, , meant "a looking at, viewing, beholding", and referring to contemplation or speculation, as opposed to action...
of statutory interpretation
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
that holds that common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
courts should interpret legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
in light of the purpose behind the legislation. Purposive theory stands in contrast to textualism
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
or statutory derogation, two other prominent common law interpretation theories.
United Kingdom
In Pepper v. Hart [1993] AC 593, the House of Lords held that courts may now take a purposive approach to interpreting legislation whether the traditional methods of statutory construction are in doubt or result in an absurdity. To find what Parliament intended, all sources including HansardHansard
Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
(records of debates in Parliament before an Act is passed) may be consulted. Lord Griffiths
Hugh Griffiths, Baron Griffiths
William Hugh Griffiths, Baron Griffiths, known as Hugh Griffiths, PC, QC, MC is a British judge and barrister....
stated (617),
UK Courts must adopt a purposive (teleological) approach in interpreting laws implementing European Community law (see Litster v Forth Dry Dock
Litster v Forth Dry Dock and Engineering Co Ltd
Litster v Forth Dry Dock and Engineering Co Ltd [1988] is a UK labour law case concerning the Business Transfers Directive 2001 relevant for the implementing TUPER 2006, though decided under the older 1981 version.-Facts:...
, among others).
Europe
Most European legal systems are civil-law based ("civilian") in which the teleological approach is integral. Other common law systems in Europe (such as the Republic of Ireland) are likely to follow the hybrid example of the United Kingdom.United States
Purposive theory is the dominant theory of statutory interpretation in the United States today. Though statutory derogation, which holds that any statute that conflicts with a well-established common law rule is preempted by the common law, dominated legal thought in the United States for most of the nineteenth century, purposive theory began to appear in the late 1800s. The theory took hold in the early 20th century though the work of scholar Roscoe PoundRoscoe Pound
Nathan Roscoe Pound was a distinguished American legal scholar and educator. He was Dean of Harvard Law School from 1916 to 1936...
, among others.
Purposive theory usually manifests in court opinions in the United States when courts examine the legislative history
Legislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken...
of statutes in an attempt to resolve ambiguity or confirm plain meaning. For example, a court might look to a Congressional
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
committee report or the transcript of floor debate to determine Congress's overarching purpose for adopting a statute.
How much weight to give to purpose is open to debate; thus, in practise, purposivists could notionally be classified as strong purposivists and weak purposivists. Strong purposivists, such as Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
would argue that a statute's purpose is more important than its text (that is, they are strong purposivists because when interpreting the statute, its purpose is considered as more important than its text). An apt example of Breyer's approach might be his dissent in Medellin v. Texas
Medellín v. Texas
Medellín v. Texas, 552 U.S. 491 is a United States Supreme Court decision which held that while an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing";...
, where he faulted the court's construction of a treaty because "it looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language)"; in response, the Court "confess[ed] that we do think it rather important to look to the treaty language to see what it has to say about the issue. That is after all what the Senate looks to in deciding whether to approve the treaty." Less controversially, "weak purposivists" might consult the statute's purpose only as a device for interpreting vague provisions of its text, and in no circumstances to override the text.
Criticism of purposivism has come from several fronts, including but not limited to those holding conservative judicial views. It been criticized by, among many others, Judge Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
and Cass Sunstein
Cass Sunstein
Cass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration...
. Reviewing Justice Breyer's book Active Liberty
Active Liberty
Active Liberty: Interpreting Our Democratic Constitution is a 2005 book by United States Supreme Court Justice Stephen Breyer. The general theme of the book is that Supreme Court justices should, when dealing with Constitutional issues, keep "active liberty" in mind, which Justice Breyer defines...
, Posner wrote that Breyer "overlooks the strongest argument against the purposive approach: that it tends to override legislative compromises," while Sunstein worried that "[i]f judges are asked to say what 'reasonable' legislators would like to do, they are all too likely to say what they themselves would like to do."
Judicial theories flowing from formalism
Formalism
The term formalism describes an emphasis on form over content or meaning in the arts, literature, or philosophy. A practitioner of formalism is called a formalist. A formalist, with respect to some discipline, holds that there is no transcendent meaning to that discipline other than the literal...
(such as textualism
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
, originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
etc., as espoused by Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
or Judge Frank Easterbrook), challenge purposive theory's reliance on legislative history, arguing that there is no need to examine legislative history, which is often unreliable, to confirm plain meaning or resolve ambiguity, and moreover, the legislative history is not the law: Congress has not enacted the legislative history, but only the text of the statute. From a formalist perspective, one of the same problems that invalidates intentionalism also invalidates purposivism: that not every member of Congress (nor indeed, no two members) need agree on the purpose or intentions of a law in order to make it law. The law exists, freestanding, without regard to what, if anything, any particular legislator or group of legislators had in mind as a purpose or intent when voting for it, and thus the law is the text that is passed.
Canada
In Canada, the purposive approach was developed and expanded by Elmer DriedgerElmer Driedger
Elmer A. Driedger, QC, BA, LL.B, LL.D was a Canadian lawyer and a leading authority on statutory interpretation. He worked for the Canadian Department of Justice for over a quarter century, rising to Deputy Minister and later became a professor of law at the University of Ottawa.-Early...
in his 1974 book, The Construction of Statutes. Driedger referred to this approach not as "purposive", but as "the modern principle" of statutory interpretation.
This approach has since been endorsed by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in a number of cases, and is now the dominant approach to statutory interpretation.
In R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, is a landmark decision by Supreme Court of Canada where the Court struck down the Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms...
, [1985] 1 SCR 295, Justice Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
, speaking for the majority of the court, wrote, at paragraph 116:
In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 1998 CanLII 837 (S.C.C.) http://www.canlii.org/ca/cas/scc/1998/1998scc5.html Justice Iacobucci
Frank Iacobucci
Frank Iacobucci, CC was a Puisne Justice on the Supreme Court of Canada from 1991 to 2004 when he retired from the bench. He is an expert in business and tax law.-Early career:...
, speaking for the whole court, wrote the following:
Justice Iacobucci went on to cite section 10 of Ontario's Interpretation Act, which stated, "Every Act shall be deemed to be remedial ... and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit." Similar provisions exist in the Interpretation Act of each province of Canada as well as at the federal level.
The purposive approach was reinforced in Bell ExpressVu Limited Partnership v. Rex, [2002] http://www.canlii.org/ca/cas/scc/2002/2002scc42.html, where Justice Iacobucci, again for the whole Court, reiterated that Driedger's rule is the overarching approach to statutory interpretation in Canada. Other philosophies, such as a strict interpretation of penal statutes, may apply in the case of an ambiguity, but only in the case of an ambiguity that arises following the application of the modern rule.
The Supreme Court ruling in Free World Trust v. Électro Santé Inc.
Free World Trust v. Électro Santé Inc.
Free World Trust v. Électro Santé Inc., [2000] 2 S.C.R. 1024, 2000 SCC 66, is a leading Supreme Court of Canada decision on patents, namely claim construction and the necessity to identify essential elements and non-essential elements. Along with the related decision, Camco v. Whirlpool , 9 C.P.R...
[2000] created a precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
that has been cited in at least 148 subsequent Canadian court decisions. The case was noted in Canada for setting out "the test for patent infringement
Patent infringement
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...
" and "the principles of purposive claim construction".
Australia
In Australia, the construction of a statutory provision that promotes the purpose of the statute is to be preferred to a construction that does not promote the purpose or object of the statute: Acts Interpretation Act 1901 (Cth), s15AA.In determining the purpose of a statutory provision, courts are to have regard to the context for the provision at the outset, and not only when there is an ambiguity or inconsistency in the meaning of the provision: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408. Apart from the structure of the statute itself, the statutory context to which the courts may have regard includes relevant Explanatory Memoranda to the statute and the reports of Law Reform Bodies that created the need for the particular statutory provision: see CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; also see Acts Interpretation Act 1901 (Cth), s15AB.