Purposive theory

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.

Purposive approach in the United Kingdom

In "Pepper v. Hart [1993] AC 573, the House of Lords held that courts now take a purposive approach to interpreting legislation, and to find what Parliament intended, all sources including Hansard (records of debates in Parliament before an Act is passed). Lord Griffiths stated (617),

Purposive approach in Europe

Courts must adopt a purposive approach in interpreting laws implementing European Community law under the European Communities Act of 1972.

Purposive theory in the 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 twentieth century though the work of scholar Roscoe Pound, 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," [R. Posner, "Justice Breyer Throws Down the Gauntlet", [http://www.yalelawjournal.org/pdf/115-7/Posner.pdf 115 YALE L. J. 1699] , 1710 (2006)] , 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." [C. Sunstein, "Justice Breyer's Democratic Pragmatism", [http://www.yalelawjournal.org/pdf/115-7/Sunstein.pdf 115 YALE L.J. 1719] , 1733]

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.

Purposive (modern) approach in Canada

In Canada, the purposive approach is the dominant approach applied through the country. It is also often referred to as the "modern approach" or "modern rule", in reference to Elmer Driedger's formulation (see below). This approach was endorsed by the Supreme Court of Canada in a milestone case, "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:

"Elmer Driedger in "Construction of Statutes" (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

Justice Iacobucci went on to also apply the "Interpretation Act" of Ontario, which stated that every Act shall be deemed to be remedial and shall 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] 2 S.C.R. 559, 2002 SCC 42 (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.

Purposive (modern) approach in 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), [http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s15aa.html 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), [http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s15ab.html s15AB] .

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