Purposive Interpretation in Law

Aharon Barak, Sari Bashi

• Publisher: Princeton University Press
• Year: 2011
• Print ISBN: 9780691133744, 9780691120072
• eBook ISBN: 9781400841264
• Topic: Diritto
• Subtopic: Giurisprudenza

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.

Part One

INTERPRETATION

CHAPTER ONE

What Is Legal Interpretation?

1. DEFINITION OF LEGAL INTERPRETATION

On the Concept of Interpretation in Law

“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 text. According to my definition, then, interpretation shapes the content of the norm “trapped” inside the text. The text that is the object of interpretation may be general (as in a constitution, statute, case law, or custom) or individual (as in a contract or will). It may be written (as in a written constitution or judicial opinion) or oral (as in an oral will or a contract implied-in-fact). The word “text” is not limited to a written text. For purposes of interpretation, any behavior that creates a legal norm is a “text.”

Constrictive Definitions of Legal Interpretation

The definition of legal interpretation at the core of this book is not the only possible definition. Some theorists define interpretation more narrowly, others, more broadly. Under a narrower or constrictive definition, there is room for interpretation only in places where the text is unclear, such that there are differences of opinion over it.⁶ Similarly, a constrictive definition might restrict legal interpretation to finding the meaning that realizes the intent of the legal text’s author.⁷ I do not adopt these definitions. According to my theory, every legal text requires interpretation. The plainness of a text does not obviate the need for interpretation, because such plainness is itself a result of interpretation. Even a text whose meaning is undisputed requires interpretation, for the absence of dispute is a product of interpretation. Realizing the intent of the author is the goal of one kind of system of interpretation (subjective interpretation⁸). Interpretation, however, can also give the legal text a meaning that actualizes objective standards (objective interpretation⁹). The definition of interpretation (in contrast to systems of interpretation within that definition) cannot be reduced to merely giving meaning that realizes authorial intent.

Expansive Definitions of Legal Interpretation

Legal interpretation may also be conceptualized more expansively than my definition permits. For example, Dworkin defines law itself as an interpretive process:

Legal practice is an exercise in interpretation not just when lawyers interpret documents or statutes but also generally. Propositions of law are not simply descriptive of legal history, in a straightforward way, nor are they simply evaluative in some way divorced from legal history. They are interpretive of legal history, which combines elements of both description and evaluation, but is different from both.¹⁰

While Dworkin’s approach has been the subject of criticism,¹¹ an evaluation of his definition and the critique of it are beyond the scope of this book. Dworkin’s definition lies at the foundation of his philosophic project, and I respect it. My definition, however, is narrower. It lies at the foundation of a different project, whose concern is giving meaning to a legal text. The two projects are distinct but interrelated. From Dworkin’s definition of interpretation, one can derive a system of understanding a legal text such as a constitution or statute. In that sense, Dworkin’s (expansive) theory of interpretation becomes one of a variety of systems of interpretation (as defined above).

The Limits of Interpretation in Law

My definition of interpretation raises a number of questions of classification. The answers to these questions determine if the standards for interpreting a text can apply to additional legal activities. First, does resolving (antinomic) contradictions in a given legal text constitute interpretive activity? In my view, the answer to that question is yes. Imparting meaning to a given text requires resolving internal contradictions within the text itself. Second, does resolving contradiction between different legal texts on the same normative plane (two statutes, two contracts, two wills), or on different normative planes (constitution and statute, statute and contract, contract and will), constitute interpretive activity? Of course, giving meaning to each of those texts constitutes interpretive activity, but does resolving the contradiction—based on the meaning given—constitute an inherently interpretive activity? The question has no clear answer, other than saying that it depends on the tradition of a given legal system. In my view, however—and depending on the particularities of the legal traditions in question—resolving contradiction between norms arising from different texts is a non-interpretive activity. True, in resolving contradictions between different texts, we give meaning to a legal system. But this giving of meaning constitutes interpretive activity only in Dworkin’s broad sense. It does not constitute interpretation in the sense I give to the word. For example, the rule of constitutional supremacy—that a statute which violates a constitutional provision is invalid—is a rule that resolves contradictions, but it is not a rule of interpretation. Third, does filling in a lacuna or gap in a legal text constitute interpretive activity? The German legal tradition distinguishes between ordinary interpretation (einfache Auslegung) and supplementary interpretation (ergänzende Auslegung). Indeed, the answer to this (third) question also depends on the legal tradition in question. I personally distinguish between interpretation in the narrow sense—the interpretation that gives meaning to a legal text—and interpretation in the broad sense, which includes filling gaps in an incomplete text. The justification in calling the second activity interpretive—if only in the broad sense—stems from the fact that it does ultimately give meaning to a text, determining the normative message arising from it. Referring to the addition of an implied term to a contract, Hoffman writes: “It may seem odd to speak of interpretation when, by definition, the term has not been expressed in words, but the only difference is that when we imply a term, we are engaged in interpreting the meaning of the contract as a whole.”¹² For this reason, I include correcting the language of the text, as in fixing a mistake, as part of interpretation in the broad sense.

Why do I insist on distinguishing between interpretation in its broad and narrow sense? The standards governing these two activities are different. Two separate and distinct systems govern the interpretation of an existing text and the completion of an incomplete text. Sometimes, a judge is allowed to interpret a text but is not allowed to fill a gap in it, as in the case of a criminal statute. Of course, so long as we remain sensitive to the distinctions I note, there is nothing wrong with generally referring to both kinds of activities as interpretive. The point is to avoid loading interpretation (in the narrow sense) with a burden it cannot bear. As we shall see, I take the limits of interpretation (in the narrow sense) to be the limits of language. An attempt to give the text a meaning that its language cannot bear is a non-interpretive project. Trying to cram that project into interpretation in its narrow sense distorts interpretation and undermines the legitimacy of judicial activity.

Legal Meaning and Semantic Meaning

Interpretation in law is a rational process by which we understand a text. Through interpretation, we come to know the normative message of a text. It is a process that “extracts” the legal meaning of the text from its semantic meaning.¹³ Interpreters translate the “human” language into “legal” language. They turn “static law” into “dynamic law.” They carry out the legal norm in practice. Legal interpretation turns a semantic “text” into a legal norm—hence the distinction between the semantic meaning of a text and its legal (or normative) meaning. The semantic meaning of a text is the totality of all meanings that may be attached to the language of the text, in the ideal lexicon of those who speak the language in question (the public language) or in the private lexicon of the text’s author (the private code). To interpret a text is to choose its legal meaning from among a number of semantic possibilities—to decide which of the text’s semantic meanings constitutes its proper legal meaning. The semantic meaning of the text determines its semantic potential or semantic range of activity (the Bedeutungsspielraum).¹⁴ The legal meaning carries this potential into practice. Usually, a text has a single, unique semantic meaning in the context of a given event, and that meaning also serves as the text’s legal meaning. In these typical cases, there is complete identity between the text’s semantic and legal meanings. All systems of interpretati...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• Part One: Interpretation
• Part Two: Purposive Interpretation
• Part Three: Interpretation in Law
• Appendix 1 The Structure of Legal Interpretation
• Appendix 2 Purposive Interpretation
• Appendix 3 Weighting Subjective and Objective Purposes
• Index