Purposive theory (or the teleological approach) 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.
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In Pepper v. Hart [1993] AC 593, the House of Lords held that courts may now take a purposive approach to interpreting legislation whether the traditional methods of statutory construction are in doubt or result in an absurdity. To find what Parliament intended, all sources including Hansard (records of debates in Parliament before an Act is passed) may be consulted. Lord Griffiths stated (617),
| “ | My Lords, I have long thought that the time had come to change the self-imposed judicial rule that forbade any reference to the legislative history of an enactment as an aid to its interpretation. The ever increasing volume of legislation must inevitably result in ambiguities of statutory language which are not perceived at the time the legislation is enacted. The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted. Why then cut ourselves off from the one source in which may be found an authoritative statement of the intention with which the legislation is placed before Parliament? | ” |
UK Courts must adopt a purposive (teleological) approach in interpreting laws implementing European Community law (see Litster v Forth Dry Dock, among others).
Most European legal systems are civil-law based ("civilian") in which the teleological approach is integral. Other common law systems in Europe (such as the Republic of Ireland) are likely to follow the hybrid example of the United Kingdom.
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 20th 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,"[1] 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."[2]
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.
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.[3]
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 R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, Justice Dickson, speaking for the majority of the court, wrote, at paragraph 116:
| “ | [T]he proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.
In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be ... a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter 's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore ... be placed in its proper linguistic, philosophic and historical contexts. |
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In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 1998 CanLII 837 (S.C.C.) [1] 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 cite section 10 of Ontario's 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, [2002] [2], 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] created a precedent that has been cited in at least 148 subsequent Canadian court decisions.[4] The case was noted in Canada for setting out "the test for patent infringement" and "the principles of purposive claim construction".[5][6]
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.
In New Zealand, courts apply the purposive approach when interpreting statutes. Section 5(1) of the Interpretation Act 1999 states that Acts are to be interpreted according to their purpose.[7]