Purposive approach


The purposive approach is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment within the context of the law's purpose.
Purposive interpretation is a derivation of mischief rule set in Heydon's Case, and intended to replace the mischief rule, the plain meaning rule and the golden rule. Purposive interpretation is used when the courts use extraneous materials from the pre-enactment phase of legislation, including early drafts, hansards, committee reports, and white papers. The purposive interpretation involves a rejection of the exclusionary rule.
Israeli jurist Aharon Barak views purposive interpretation as a legal construction that combines elements of the subjective and objective. 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, as it allows more freedom in interpretation by way of extraneous materials in interpreting the law.

Historical origins

Plain meaning rule

The plain meaning rule gained popularity during the 18th and 19th centuries as the courts took an increasingly strict view of the words within statutes. Under the plain meaning rule, the words of the statute are given their natural or ordinary meaning. The plain meaning rule of statutory interpretation should be the first rule applied by judges.
One of the leading statements of the plain meaning rule was made by Chief Justice Nicholas Conyngham Tindal in the Sussex Peerage case, concerning whether Augustus d'Este succeeded to the titles of his father Prince Augustus Frederick, Duke of Sussex, in particular whether the marriage of his father and mother was valid under the Royal Marriages Act 1772:
Strict application of the plain meaning rule can sometime result in "absurd" outcomes. Examples of the plain meaning rule producing absurd outcomes can be seen in the following cases:
The golden rule permits the courts to depart from the plain meaning rule if the meaning leads to consequences it considers to be absurd or ambiguous.
This was propounded in Grey v Pearson where Lord Wensleydale stated
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 1 QB 451 is typical of the more narrow use. In Maddox, the defender had been travelling at over the 30 mph speed limit in a minibus with eleven seats, 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. It was held that adapted to could be taken to mean suitable for.
The court applies the golden rule in a wider sense in Adler v George. Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces '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 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 to a prohibited place and not if they were actually in it. The defendant's conviction was therefore upheld.
In Re Sigsworth, a son had murdered his mother. Under slayer or forfeiture rules of long standing in the United Kingdom, he would have been excluded as beneficiary under her will. She had, however, died intestate, and the Administration of Justice Act 1925 provided that her next of kin 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.

Mischief rule

In Construction of Statutes, Elmer Driedger defines the mischief rule as follows:
Heydon's Case 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. 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 bike is not a carriage. Under the Mischief rule the bicycle could constitute a carriage. The mischief the act was attempting to remedy was that of people being on the road on transport while drunk. Therefore a bicycle could be classified as a carriage.
In Smith v Hughes, 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 so they could be seen by the public without entering into the streets. The court applied the mischief rule holding that the activities of the defendant was 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, the Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. 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 surgery has more often been replaced with administration of hormones, commonly by nurses. The courts were responsible for determining whether they were acting unlawfully, not being medical practitioners as defined under the Act. The courts found that the Act was intended to provide for safe abortions and that nurses could carry out such abortions.

Aids to interpretation

Internal aids to statute interpretation

Generally, prima facie must be given as a general rule of statutory interpretation. If the words are clear and free from ambiguity there is no need to refer to other means of interpretation. However, if the words in the statute are vague and ambiguous, then internal aid may be consulted for interpretation. This means the statute should be read in whole, what is not clear in one section may be explained in another section.
Internal aids include the following:

External aids to statute interpretation

Aids that are external to a statute can also be used as recourse.
External aids include the following:

Australia

The Acts Interpretation Act 1901 of Australia states that the interpretation that best achieves the purpose or object of the act is to be preferred to all other interpretations. When determining the purpose of a statutory provision courts ought to keep in mind the contexts for the provision at the outset rather than only when ambiguity or inconsistency exists. The statutory context 1) explanatory memoranda that are relevant to the statute and 2) reports of advisory bodies, such as law commissions, that created the need for the particular statutory provisions. 187 CLR 384 at 408; also see Acts Interpretation Act 1901
Whereas other commonwealth countries embraced purposivism much earlier, the High Court of Australia has only been receptive to purposivism since the 1970s. Historically, Australian legalism 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.
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 largely attributed to the "revolution" of the Mason Court.

Mason Court

The Mason Court's utilization of legislative debates marks the departure from strict Australian legalism. Along with the other radical innovations of the Mason Court, the use of extraneous materials has resulted in considerable tension between the textualist history and the purposive future. While there has been some retrogressive action since the Mason Court, Australian constitutional interpretation is now arguably pluralistic, similar to that of the United States.
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".

Canada

Statutory interpretation

In Canada, the purposive approach was developed and expanded by Elmer Driedger 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 Re Rizzo & Rizzo Shoes Ltd, Justice 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 as well as at the federal level.
The purposive approach was reinforced in Bell ExpressVu Limited Partnership v. Rex, , 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. set out "the test for patent infringement" and "the principles of purposive claim construction".

Constitutional interpretation

Purposive interpretation is also used in constitutional interpretation. In R. v. Big M Drug Mart Ltd., , Justice Dickson, speaking for the majority of the court, wrote, at paragraph 116:

Israel

Israel's legal community is largely purposivist in nature and has rejected such methods of interpretation as narrow textualism and static historicism. The term "purposive interpretation" began to appear in Israel at the end of the 1960s and beginning of the 1970s.
Aharon Barak is Israel's best-known champion of purposivism. His particular form of purposivism includes a synthesis of subjective elements, such as author's intent, with objective elements, such as textual evidence. 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". Barak has encouraged Israel's judiciary to make reference to the Canadian Supreme Court's purposive approach to Charter rights and its rights-forwarding orientation. Barak has not only written in support of purposive interpretation but also applied it while serving as a Justice to the Supreme Court of Israel. In CA 165/82 Kibbutz Hatzor v Assessing Officer, 39 P.D 70, his judgment was seen as a turning point in the interpretation of tax law in Israel, establishing that a purposive approach was generally preferred to textualism in determining the meaning of the law.

New Zealand

Section 5 of the Interpretation Act 1999 states that Acts are to be interpreted according to their purpose.

United Kingdom

A 1969 report of the English Law Commission proposed that the English courts should adopt a purposive approach. That endorsement did much to boost the profile and credibility of the approach, but several decades would still pass before it would win acceptance outside of narrow fields of English law, enshrined by cases such as the Earl of Oxford's case.
The leading case in which the purposive approach was adopted by the House of Lords was Pepper v Hart AC 593. This established the principle that when primary legislation is ambiguous, and certain 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 interpreting legislation when the traditional methods of statutory construction are in doubt, or would result in an absurdity.
To determine what Parliament intended, all sources including Hansard may be consulted. Lord Griffiths stated:

United States

American jurist Henry M. Hart, Jr., and Albert Sacks, are considered early proponents of American purposivism. Their work helped to promote purposivism as a credible method of interpretation. Purposivism in the United States is considered a strain of originalism, alongside textualism and intentionalism. While the current focus of the interpretation debate is between textualism and intentionalism, the less popular purposivism is gaining favour. Purposivism in the United States is used to interpret a statute with broadly worded text and a seemingly clear purpose. When employing purposivism, the court is concerned with understanding the purpose or "spirit" of the law. Once the purpose is identified, the text is then read accordingly. In order to determine and interpret the purpose of a statute, courts may consult extraneous aids.
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. Each of these extraneous aids are given a corresponding weight to their position in the hierarchical ranking.
The academic literature indicates several variations of purposivism. For example Abbe Gluck said “There are different stripes of purposivists...” 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." Degrees of purposivism are sometimes referred to as ‘strong’ or ‘weak’.
As the Court's leading purposivist Justice Stephen Breyer considers determining and interpreting the purpose of a statute paramount. An apt example of Breyer's approach might be his dissent in Medellín v. Texas, where he faulted the court's construction of a treaty because "it looks for the wrong thing using the wrong standard in the wrong place "; in response, the Court "confess 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".
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 to override the text.