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The purposive approach (sometimes referred to as purposivism,Posner, Richard. Pragmatism versus Purposivism in First Amendment Analysis. Stanford Law Review Vol. 54, No. 4, Apr., 2002, pp. 737–7520 purposive construction,Bourchard, Ron A. Living Separate and Apart is Never Easy: Inventive Capacity of the PHOSITA as the Tie that Binds Obviousness and Inventiveness in Pharmaceutical Litigation. University of Ottawa Law & Technology Journal, January 2007 (Canada) purposive interpretation,Barak, Aharon. Purposive Interpretation In Law. Princeton University Press. (Princeton, New Jersey), 2005 or the modern principle in construction)Driedger, E.A. Construction of Statutes. Butterworth & Co. (Canada) 2d ed., 1983, p. 83 is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (a statute, part of a statute, or a clause of a constitution) within the context of the law's purpose.
Purposive interpretation is a derivation of mischief rule set in Heydon's Case,Bennion, F.A.R. Statutory Interpretation. Butterworth & Co. (London) 3d ed., 1997, pp. 731–750 and intended to replace the mischief rule, the plain meaning rule and the golden rule.Driedger, E.A. Construction of Statutes. Butterworth & Co. (Canada) Ltd., 1983, p. 87 Purposive interpretation is used when the courts use extraneous materials from the pre-enactment phase of legislation, including early drafts, , committee reports, and white papers.
Israeli jurist Aharon Barak views purposive interpretation as a legal construction that combines subjective and objective elements.Barak, Aharon. Purposive Interpretation In Law. Princeton University Press (New Jersey), 2005, p. 88 Barak states that the subjective elements include the intention of the author of the text, whereas the objective elements include the intent of the reasonable author and the legal system's fundamental values.
Critics of purposivism argue it fails to separate the powers between the legislator and the judiciary,Amy E. Fahey, Note, United States v. O'Hagan: The Supreme Court Abandons Textualism to Adopt the Misappropriation Theory, 25 Fordham Urb. L.J. 507, 534 (1998). as it allows more freedom in interpretation by way of extraneous materials in interpreting the law.
A strict application of the plain meaning rule can sometimes result in "absurd" outcomes. Examples of the plain meaning rule producing absurd outcomes can be seen in the following cases:
The degree of absurdity or ambiguity necessary to exercise the golden rule is determined on a case-by-case basis by the individual judge in question. There are two general situations in which the golden rule may be employed: narrowly, to take the 'better' reading of two alternatives, or more widely, to broaden a rule that, although unambiguous, leads to an absurd outcome.
The case Maddox v Storer 1963 1 QB 451 is typical of the more narrow use. In Maddox, the defendant travelled at over the 30 mph speed limit in a minibus with eleven seats (excluding that of the driver), most of which were unoccupied. Per the Road Traffic Act 1960, travelling at over 30 mph in a vehicle "adapted to carry more than seven passengers" was an offence. The court held that adapted to could be taken to mean suitable for, rather than necessarily implying an alteration to the original design.
The court applied the golden rule in a broader sense in Adler v George (1964). Under the Official Secrets Act 1920, it was an offence to obstruct an armed forces member "in the vicinity" of a prohibited place. The defendant was actually in the prohibited place, rather than "in the vicinity" of it, at the time of obstruction. The courts had to determine whether "in the vicinity of" included on/in the premises. The court applied the golden rule. The court said that "in the vicinity" did include on or in as well. It would be absurd for a person to be liable if they were near a prohibited place and not if they were actually in it. Therefore, the court upheld the defendant's conviction.
In Re Sigsworth (1935), a son had murdered his mother. Under slayer or forfeiture rules of long standing in England, he would have been excluded as a beneficiary under her will. She had, however, died intestate, and the Administration of Estates Act 1925 provided that her son would inherit. Although the situation was unambiguous, the absurdity inherent in such a situation meant that forfeiture had to be treated as applicable to intestacy rules taking the place of a will as well as wills themselves.
Heydon's Case (1584) laid out the following statement of the principles underlying what would come to be called the "mischief rule":
The mischief rule saw further development in Corkery v Carpenter (1951). In a decision of the Court of King's Bench, the Court had to decide whether a bicycle could be classified as a carriage. According to s. 12 of the Licensing Act 1872, a person found drunk in charge of a carriage on the highway can be arrested without a warrant. A man was arrested drunk in charge of a bicycle. According to the plain meaning rule, a bicycle is not a carriage. Under the mischief rule, the bicycle could constitute a carriage. The mischief the act was attempting to remedy was people being on the road on transport while drunk. Therefore, a bicycle could be classified as a carriage.
In Smith v Hughes (1960), the defendant was charged under the Street Offences Act 1959, which made it an offence to solicit prostitution in a public place. The defendant was soliciting from within private premises (windows or on balconies), so they could be seen by the public without entering into the streets. The court applied the mischief rule, holding that the defendant's activities were within the mischief of the Act, and soliciting from within a house is soliciting and molesting of the public. Therefore, it is the same as if the defendant was outside on the street.
In Royal College of Nursing of the UK v DHSS (1981), the Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out . The Offences Against the Person Act 1861 made it an offence for any person to carry out an abortion. The Abortion Act 1967 provides an absolute defence for a medical practitioner provided certain well-known conditions are satisfied. Discoveries in medicine meant that surgery had more often been replaced with the administration of , commonly by nurses. The courts were responsible for determining whether they were acting unlawfully, not being "medical practitioners" as defined under the Act. The House of Lords ruled that the Act was intended to provide for safe abortions and that nurses could carry out such abortions provided that a doctor had prescribed the treatment and accepted responsibility for its conduct throughout the procedure.National Library of Medicine, Royal College of Nursing of the United Kingdom v. Department of Health and Social Security, Abstract, accessed 17 December 2022
Internal aids include the following:
Whereas other common law countries embraced purposivism much earlier, the High Court of Australia has only been receptive to purposivism since the 1970s. Historically, Australian legalism (a variant of originalism) persevered for many years following the landmark decision in the Engineers Case. Sometimes considered aggressively textualist, Australian legalism emphasizes the importance of and attends only to the words in the statute when determining meaning.Greene, Jamal, On the Origins of Originalism (August 16, 2009). Texas Law Review, Vol. 88; Columbia Public Law Research Paper No. 09-201.
The Court remains entrenched in the tradition of textualism and original meaning more than the typical European, Canadian, or even American jurist; however, Justice McHugh refers to Australian legalism as "faint-hearted", as the Court's focus on textualism does not preclude its ability to evaluate extrinsic evidence. The move away from staunch textualism is primarily attributed to the "revolution" of the Mason Court.
According to Australian jurist Jeffrey Goldsworthy the Mason Court's "revolutionary" attitude is partially attributed to Mason, Deane, and Gaudron all receiving their education from the University of Sydney where they were exposed to "more pragmatic, consequentialist legal theories than many of their predecessors".
In many cases, the Supreme Court of Canada has endorsed this approach; it is now the dominant approach to statutory interpretation.
In Re Rizzo & Rizzo Shoes Ltd, 1998 [2] Justice Frank Iacobucci, speaking for the whole court, wrote the following:
Justice Iacobucci went on to cite section 10 of Ontario's quasi-constitutional 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 and at the federal level.
The purposive approach was reinforced in Bell ExpressVu Limited Partnership v. Rex, 2002 [3], 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[4] set out "the test for patent infringement" and "the principles of purposive claim construction". "Free World Trust" : Google News Archives Search. Google 2008. Searched for term "Free World Trust". pp.1-2. Accessed 29-03-2008.Sotiriadis, Bob et al. L'IMPACT D'UNE INTERPRÉTATION TÉLÉOLOGIQUE SUR DES RECOURS JUDICIAIRES EN MATIÈRE DE CONTREFAÇON DE BREVETS AU CANADA : 5.0 Les arrêts Whirpool et Free World Trust : les questions en jeu ." Centre CDP Capital et LEGER ROBIC RICHARD, p.8. Accessed 30-03-2008.
In 1982, Lord Diplock, giving the leading judgment for the House of Lords in the case of Catnic Components Ltd v Hill & Smith Ltd, held that patent claims should be given a purposive construction.1982 R.P.C. 183
The leading case in which the purposive approach was adopted by the House of Lords was Pepper v Hart 1993 AC 593. This established the principle that when primary legislation is ambiguous and, specific criteria are satisfied, courts may refer to statements made in the House of Commons or the House of Lords to determine the intended meaning of the legislation. Before the ruling, such an action would have been seen as a breach of parliamentary privilege. The House of Lords held that courts could now take a purposive approach to interpret legislation when the traditional methods of statutory construction are in doubt or would result in an absurdity.
To determine what Parliament intended, courts may consult all sources, including Hansard. Lord Griffiths stated:
Aharon Barak is Israel's best-known champion of purposivism. His particular form of purposivism includes a synthesis of subjective elements, such as the author's intent, with objective elements, such as textual evidence.Cross, Frank B., The Theory and Practice of Statutory Interpretation Barak believes the text to be the source of purpose but is ready to go beyond the text in some circumstances to examine the subjective purposes of the text's author. Barak believes intentionalism is too limited in its assessment of subjectivity.
"On a number of occasions, Justice Barak of the Israeli Supreme Court has remarked that, in the enactment of its new Basic Laws on human rights, Israel walks in the path of the Canadian Charter of Rights and Freedoms".Weinrib, Lorraine, The Canadian Charter as a Model for Israel's Basic LawsHa-Redeye, Omar, Canada Is the World's Constitutional Superpower Barak has encouraged Israel's judiciary to refer to the Canadian Supreme Court's purposive approach to Charter rights and its rights-forwarding orientation. Barak has written in support of purposive interpretation and applied it while serving as a Justice to the Supreme Court of Israel. In CA 165/82 Kibbutz Hatzor v Assessing Officer, 39(2) P.D 70, his judgment was seen as a turning point in interpreting tax law in Israel, establishing that a purposive approach was generally preferred to textualism in determining the meaning of the law.
The following extraneous aids have been ranked from least authoritative to most authoritative: subsequent history, nonlegislator proponents of drafters, rejected proposals, colloquy on floor & hearing, sponsor statements, and committee reports.Michael Rosensaft, "The Role of Purposivism in the Delegation of Rulemaking Authority to the Courts" 29 Vermont L.R. 611 p. 628 Each of these extraneous aids is given a weight corresponding to its position in the hierarchy.
The academic literature indicates several variations of purposivism. For example, Abbe Gluck said, "There are different stripes of purposivists...”Gluck, Abbe R., "The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism" 119 Yale L.J. 1750 p. 1764 Jennifer M. Bandy stated, "Thus, Justice Breyer's strain of purposivism focuses on understanding the law in relation to both the people who passed it and the people who must live with it."Jennifer M. Bandy, Interpretive Freedom: A Necessary Component of Article III Judging, 61 Duke Law Journal 651–691 (2011). [7] Degrees of purposivism are sometimes referred to as 'strong' or 'weak'.
Justice Stephen Breyer considered determining and interpreting the purpose of a statute paramount.Frederick Liu, Essay, Astrue v. Ratliff and the Death of Strong Purposivism, 159 U. PA. L. REV. PENNUMBRA 167 (2011), http://www.pennumbra.com/essays/03-2011/Liu.pdf. An apt example of Breyer's approach might be his dissent in Medellín v. Texas (2008), 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 "confessed 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". Medellín v. Texas, 128 S. Ct. 1346 p.1362
As opposed to Justice Breyer's strong form of purposivism, "weak purposivists" might consult the statute's purpose only as a device for interpreting vague provisions of its text and in no circumstances override the text.
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