Purposive Interpretation in Law

Aharon Barak was president of the Supreme Court of Israel until his retirement in 2006. He is the author of Judicial Discretion, The Judge in a Democracy, numerous articles in English-language law journals, and several books in Hebrew. He is the winner of the 2006 Gruber Justice Prize from the Peter and Patricia Gruber Foundation. He is the author of "Judicial Discretion" (Yale), numerous articles in English-language law journals, and several books in Hebrew.

• Introduction xi PART ONE: INTERPRETATION 1 Chapter One: What Is Legal Interpretation? 3 1. Definition of Legal Interpretation 3 2. The Limits of Interpretation 16 3. Basic Problems in Interpretation 26 4. Systems of Interpretation in Law 30 5. Advantages and Disadvantages of Interpretive Rules 38 6. The Status and Sources of Interpretive Rules 47 7. Laws of Interpretation, Jurisprudence, and General Hermeneutics 54 Chapter Two: Non-Interpretive Doctrines 61 1. The Essence of Non-Interpretive Doctrines 61 2. Filling in a Gap in a Legal Text 66 3. Resolving Contradictions Normatively 74 4. Correcting Mistakes in the Language of a Text 77 5. Deviating from the Language of the Text to Avoid Absurdity 80 6. Cy Pres Performance 80 7. From Interpretive Theory to Purposive Interpretation 82 PART TWO PURPOSIVE INTERPRETATION 83 Chapter Three: The Essence of Purposive Interpretation 85 1."Purposive Interpretation": Terminology 85 2. Fundamentals of Purposive Interpretation 88 Chapter Four: The Semantic Component of Purposive Interpretation 97 1. Interpretive Theory and Semantic Theory 97 2. Types of Language 103 3. Canons of Interpretation 107 Chapter Five: The Purposive Component of Purposive Interpretation 110 1. The Essence of Purpose 110 2. Multiple Purposes 113 Chapter Six: Subjective Purpose: Authorial Intent 120 1. The Essence of Subjective Purpose 120 2. Abstract Purpose and Concrete Purpose 126 3. Subjective Purpose and the Problem of Multiple Authors 129 4. Sources of Subjective Purpose 135 5. Subjective Purpose as a Presumption about the Text's Purpose 145 Chapter Seven: Objective Purpose: Intent of the Reasonable Author; Intent of the System 148 1. The Essence of Objective Purpose 148 2. Sources of Objective Purpose: Internal and External 157 3. Presumptions of Objective Purpose 170 4. Contradictions between Purposive Presumptions 176 Chapter Eight: The Purposive Component: Ultimate Purpose 182 1. The Weight of Subjective and Objective Purpose in Determining Ultimate Purpose 182 2. Type of Text: Will, Contract, Statute, and Constitution 185 3. Type of Text: The Effect of a Text's Age on Its Ultimate Purpose 191 4. Type of Text: Distinguishing Texts by Scope of Issues Regulated 193 5. Type of Text: Changes in Regime Character and Society's Fundamental Assumptions 195 6. Type of Text: Texts Based on Rules and Texts Based on Standards 197 7. Type of Text: Content of the Provision 200 8. The Effect of Type of Text on Ultimate Purpose 203 9. Formulating Ultimate Purpose 205 Chapter Nine: Discretion as a Component in Purposive Interpretation 207 1. The Essence of Judicial Discretion 207 2. Situations of Judicial Discretion 214 Chapter Ten: The Theoretical Basis for Purposive Interpretation 218 1. The Need to Justify a System of Interpretation 218 2. Social Support for Purposive Interpretation 221 3. Jurisprudential Support for Purposive Interpretation 224 4. Hermeneutic Considerations in Favor of Purposive Interpretation 230 5. Constitutional Considerations in Favor of Purposive Interpretation 233 Chapter Eleven: Purposive Interpretation and Its Critique of Other 260 Systems of Interpretation 1. Purposive Interpretation and Subjective Systems of Interpretation 260 2. Purposive Interpretation and Objective Systems of Interpretation: Textualism,"Old " and "New "269 3. Purposive Interpretation and Pragmatism 286 4. Purposive Interpretation and Dworkin's System of Interpretation 290 5. Purposive Interpretation and Free Interpretation 297 6. Critique of Purposive Interpretation and Some Responses 301 PART THREE INTERPRETATION IN LAW 305 Chapter Twelve: The Interpretation of Wills 307 1. The Uniqueness of a Will and How It Affects Interpretation 307 2. The Language of a Will 309 3. The Purpose of a Will 309 Chapter Thirteen: The Interpretation of Contracts 318 1. The Uniqueness of a Contract and How It Affects Interpretation 318 2. Contract Theory and Contractual Interpretation 321 3. The Purpose of a Contract 325 4. The Subjective Purpose of a Contract 326 5. Sources of Subjective Purpose 329 6. The Objective Purpose of a Contract 332 7. Presumptions for Identifying Objective Purpose 334 8. The Ultimate Purpose of a Contract 336 Chapter Fourteen: Statutory Interpretation 339 1. The Uniqueness of a Statute and How It Affects Interpretation 339 2. The Subjective Purpose of a Statute 341 3. Subjective Purpose Learned from the Language of a Statute 342 4. Subjective Purpose Learned from Sources External to the Statute: Legislative History 344 5. The Objective Purpose of a Statute 350 6. Sources of Objective Purpose 352 7. Presumptions of Objective Purpose 358 8. The Ultimate Purpose of a Statute 363 Chapter Fifteen: Constitutional Interpretation 370 1. The Uniqueness of a Constitution and How It Affects Interpretation 370 2. The Language of a Constitution 372 3. The Subjective Purpose of a Constitution 375 4. The Objective Purpose of a Constitution 377 5. Sources of Objective Purpose 377 6. The Ultimate Purpose of a Constitution 384 Appendix 1 The Structure of Legal Interpretation 395 Appendix 2 Purposive Interpretation 396 Appendix 3 Weighting Subjective and Objective Purposes 397 Index 399

"One of the most respected judges serving today is Aharon Barak, President of the Supreme Court of Israel. His commitment to the rule of law and constitutional rights, and his encyclopedic knowledge of the history, case law and principles of a wide variety of legal systems, are at the heart of Purposive Interpretation in Law. In this major work of legal philosophy, Barak develops a legal theory to explain how judges should resolve cases which depend on the interpretation of texts, whether contracts, statutes or constitutions."--David Pannick, QC, The Times (London) "Must reading for social scientists and legal theorists, as well as for jurists and other legal practitioners, who seek to witness the complexities of contemporary judicial decision-making... Barak has written a masterful book that will further the quest for a general theory of legal interpretation. And for this both scholars and practitioners should be thankful."--Ronald Kahn, Law and Politics Book Review "This book is a must-read for anyone interested in political theory and legal philosophy, but the specific areas of law that Barak so carefully investigates, make it relevant for private, public and comparative law academics and practitioners as well."--AlbertoVespaziani, European Legacy