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 Europe

Under the European Communities Act 1972, a court must adopt a purposive approach in construing legislation that implements European Community (EC) law.

European Community legislation is drafted in a very different way from statutes of some member countries. It follows the civil law tradition, which favours simplicity of drafting and a high degree of abstraction, rather than the exhaustive approach adopted in some common law member countries like the United Kingdom. This means that a purposive approach is vital when interpreting legislation, and questions of wide economic or social aims are often considered by the courts.

In Litster v. Forth Dry Dock and Engineering Co. Ltd (1989; 1 ALL ER 1134), employees were dismissed one hour before a business was transferred to a new owner. The employees claimed they were unfairly dismissed. Regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981 No. 1794) (a statutory instrument that implemented a European Community Directive), provided that the House of Lords read in the additional words "or would have been so employed if he had not been unfairly dismissed before the transfer" as a reason connected with the transfer. This was necessary to achieve the purpose of the EC Directive, which was to protect the employees on the transfer of a business.

Although this could not have been achieved using the rule of construction known as the plain meaning rule or literal rule, a similar result could have been achieved using the mischief rule or, probably, the golden rule, i.e., one hour could still have been interpreted as "immediately" before the transfer.

The purposive approach is also a feature of the reasoning of the European Court of Justice. Because decisions of this court are binding in member countries, its rules of legal reasoning are of increasing importance in member countries' legal systems and have an indirect influence on interpretation, even when the legislation does not originate from the European Community.

Case relevant: R v Registrar General ex Parte Smith

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, JudgeRichard 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.

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), 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.