Vol. 16 No. 9 (September, 2006) pp.708-738
PURPOSIVE INTERPRETATION IN LAW, by Aharon Barak (translated by Sari Bashi). Princeton: Princeton University Press, 2005. 464pp. Cloth. $47.50/£32.50. ISBN: 0691120072.
Reviewed By Ronald Kahn, Department of Politics, Oberlin College. Email: Ronald.Kahn [at] Oberlin.edu
Aharon Barak, a constitutional scholar of international reputation and the President of the Supreme Court of Israel, has written a complex, provocative, and subtle theory of legal interpretation. It is 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 set his scholarly objectives high in this work. He writes that it is “an original attempt to construct a comprehensive theory of interpretation applicable to all legal texts (will, contract, statute, constitution and everything in between)” (p.xi). Barak believes that there should not be separate systems of interpretation for different kinds of legal texts. He seeks to unify interpretive theory while recognizing “the uniqueness of each kind of text and the interpretive emphases characteristic of it” (p.xi). Barak seeks to resolve the tension between the objective of a general theory and the uniqueness of each kind of text though the second major innovation of the work, his concept of purpose. He writes: “Purpose is an expression of the internal relationship (which changes according to the type of text) between the intent of the specific author (‘subjective’) and the intent of any reasonable author (‘objective’) (p.xi). Thus, unlike originalism and other legal theories, “legal purpose is not simply authorial intent at a high level of abstraction” (p.xi). Barak views the unique characteristics of purposive interpretation as providing a) a comprehensive concept of interpretation; b) a holistic interpretive perspective; c) a structure of interpretive “laws”—which resolve conflicts between the intent of the author and the values of the legal system; and d) an acknowledgment of the importance of judicial discretion while restricting it to some degree (p.xii). Barak hopes that his system of interpretation establishes criteria for determining the legal meaning of the text, within its semantic boundaries (p.xiii).
Moreover, for wills, contracts, statutes and constitutions, the importance to the interpretive process of the subjective and objective purpose is to be weighed differently. Within statutory interpretation, the role of subjective and objective purpose will vary in different sorts of statutes. Barak argues that in young, specific, and rules-based statutes, subjective purpose would prevail, while for old, general, and standards-based statutes, objective purpose would weigh more heavily. I will center my discussion on the interpretation of constitutions, along with a more limited discussion of statutory interpretation. [*709]
In constitutional interpretation, “objective purpose is most important. But subjective purpose is useful in deciding among conflicting objective purposes” (p.xv). The goal of interpretation according to Barak is “to achieve the purpose of law, in general, and of the individual legal text as part of it, in particular”(p.xv). Therefore, the core of the enterprise is to provide a theory of what constitutes the rule of law in an age when all law is constructed. We see this in Barak’s listing of some of the fundamental assumptions of this book: 1) “There is no true interpretation, because the reader accesses a text only after interpreting it” (p.xv). Thus, the goal should be to find the best system of interpretation so that texts and the system as a whole achieve their goals; 2) “Human beings are complicated creatures, and . . . no one explanation, no one theory, and no one system can encompass the full complexity of the human condition. My theory is eclectic” (p.xvi); and 3) “The selection of a proper system of interpretation . . . should express the role of the judge in a democratic society” (p.xvi). As such, the role of the judge is related to the wider values of the system of government.
To witness the complexity and theoretical richness of the book, it is best to describe the chapters within its three parts: Part I, Interpretation (Chapters 1-2, on legal interpretation and non-interpretive practices; Part II, Purposive Interpretation (Chapters 3-11, on the essence of the semantic and purposive components of purposive interpretation, as well as chapters on the following issues of legal interpretation: subjective purpose: authorial intent, objective purpose: intent of the reasonable author and intent of the system, the ultimate purpose of the purposive component, discretion in purposive interpretation, theoretical basis of purposive interpretation, and purposive interpretation and its critique of other systems of interpretation); and Part III (Chapters 12-15, on the interpretation of wills, contracts, statutes, and constitutions).
The major points in Part I are the following (pp.3-5): 1) Interpretation is “a rational activity that gives meaning to a legal text”; 2) “Resolving . . . contradictions in a given legal text constitutes [interpretation]”; 3) Whether resolving contradictions between legal documents constitutes interpretation depends on “the tradition of a given legal system” –Barak views such resolutions as non-interpretive –; and 4) whether “filling in a lacuna or gap in a legal text constitutes interpretive activity” also depends on the legal system (he would generally include this, as well as correcting errors in a text, to be interpretation in a broad sense but not in a narrow one).
Barak makes a clear distinction between semantics (and hermeneutics) and the legal meaning of a text, because the legal meaning of a text is normative (pp.6-7). Semantic meanings include every meaning that could be attached to a particular text, but legal meaning is about choosing among those possibilities—which is interpretation. Barak emphasizes that usually there is only one semantic meaning and it equals the legal meaning, but sometimes things are more ambiguous. “Interpretation is [*710] more than mere linguistics, but rather requires us to find the normative message arising from the text” (p.8). “Legal interpretation is part of the science of hermeneutics” (p.55) because “[i]nterpretation requires the interpreter to adopt an objective attitude toward the text,” and “understanding a text requires its comprehension as a whole” and the connections between parts and wholes (p.57). However, general hermeneutics is only somewhat useful in defining and engaging in legal hermeneutics, because hermeneutics does not determine which system of interpretation should be used (p.58), and because “law is distinct for its power to coerce . . . The interpretation of a legal text is ‘normative’ interpretation” (p.59). Therefore, legal interpreters must resolve ambiguities rather than exposing various meanings, both in “declaring existing law” and in “creating new law that articulates the rights and responsibilities of members of society” (p.60). It is the importance of the normative nature of legal decision-making which seems to set the parameters of this most interesting and comprehensive theory of legal interpretation.
Barak also emphasizes that the theory or concept of interpretation which he seeks to provide is distinct from the various systems of interpretation found among nations. Thus, interpretation is not about determining the “true” meaning of a text, because this is impossible; instead, Barak argues that we should search for the “proper” meaning of the text knowing that the process is both discretionary and bounded for judges (p.9). Thus, the “object” of interpretation is the text, while “the norm extracted from the text is the product of interpretation” (pp.11-12). There is no meaning without interpretation, so “every text requires interpretation” (p.12). While most texts do have “plain” meanings, which allow for only one correct reading, these texts still require an initial conscious (or unconscious) interpretation to determine they are plain texts (p.14).
Creating Implied Rights
Judges do essentially create new texts, and when they do so these acts may be legitimate but are not defined as interpretation (pp.14-15). When they step outside the limits of interpretation, judges must find another source of legitimacy (pp.16-17). And this is where constitutional theory plays an even larger role in Court decision-making. Barak writes, “The limits of the text set the limits of interpretation in law, and the limits of language set the limits of the text” (p.18). So the limit of interpretation is that it gives each text a meaning the language can bear: “An interpreter may not give a text a meaning that a linguist could not give it” (p.19). This also applies to constitutional interpretation—even where there is vague language, judges still can not ascribe a legal meaning to a constitution that is unrelated to the text therein (p.20). Most importantly, it is also possible to “take into account the implied language” of a legal document (p.21) in interpretation—i.e. structure, organization, and the like (p.22).
For Barak, the text is outward-looking. He writes, “The challenge of interpretation [is] to decide what the [*711] general rule means in specific factual situations” (p.26). The key problem is the relationship among text and context/form and substance (pp.26-27). Barak seeks “to understand the form and to develop it in light of its substance” (p.28). This problem of form versus substance brings up various sub-questions: 1) “What is the substance that gives meaning to the form? Is it the subjective intent of the text’s author or the objective goal of a reasonable author?” (p.28). 2) “Is the (subjective) intent of the text’s author his or her ‘true’ intent . . . or is it the author’s ‘expressed’ intent?” (p.29); and 3) “What is the ‘objective substance’ of the text, and how is it determined?” (p.30).
A scholar also must ask of interpretive and constitutional theories how they deal with the concept and substance of non-interpretive doctrines of law. Barak does so in a straightforward way. He writes, “Non-interpretive doctrines operate beyond the language of the text. They impart a right according to the text, even though that right is not grounded in the language of the text” (p.61). He emphasizes, “Non-interpretive doctrine is considered interpretive in the broadest sense of the word since it is closely related to interpretation” (p.63). He notes that the five main non-interpretive doctrines are: filling in a gap in a text (pp.66-74); resolving a contradiction between two separate texts (pp.74-77); correcting a mistake in a text (pp.77-80); changing the language of the text in order to prevent an absurdity (p.80); and fulfilling the purpose of the text by making a change (“doctrine of approximation”) (pp.80-81). Barak accepts all five non-interpretive doctrines as legitimate.
With regard to American constitutional law, filling in constitutional gaps predominates. He writes, “In American constitutional law, there is a trend toward recognizing human rights implied or created in the penumbra of existing rights” (p.70). Barak argues that it might be better for our legal system to recognize this practice and center discussion around it as a non-interpretive practice, and to realize that the practice of filling in gaps in different legal texts should employ different standards. Barak offers guidelines for interpretation under the five non-interpretive doctrines. The objective is defining and drawing out contradictions found when engaging in the interpretive process.
Law (Legal Institutions) as Compared to Politics (Political Institutions)
Barak is quite clear about the relationship between law/courts and politics/ political institutions. He writes, “I reject the view that law is politics, that interpretive activity is simply political activity, and that the interpreter acts according to his or her political whims, unguided by interpretive rules. . . Judicial discretion exists, but it does not undermine the foundations of the interpretive project. It is, rather, part of that project” (pp.38-39). And interpretive rules are key to making this so. Without interpretive rules or law being separate from politics, “social life would be impossible” (p.38). Barak emphasizes that the legal character of interpretive rules requires that: 1) They, themselves, must be interpreted; 2) They [*712] “consist of both principles and rules;” and 3) “The interpretive norm is a matter of law, not fact” (pp.47-48). The process is discretionary and disciplined, in part because of the acceptance by judges and the people of the interpretive rules themselves. Thus, for Barak, interpretive rules serve both practical and theoretical functions: guaranteeing rationality in legal thinking, making possible critical evaluation of an interpretation, legitimizing interpretation, making interpretation more objective, “preserv[ing] the independence and autonomy of the judicial process,” and “aiding in the development of law.” Institutionally, for Barak, there is a unique role for the courts, especially in democracies. He writes, “Judicial interpretation is unique [as compared to that of other branches and of individuals] in that it is binding” (p.51). “Because judges are not accountable in the same way as politicians are, they can express the legal system’s fundamental values, central to which are human rights” (p.52). However, judges must balance the judicial discretion that is central to purposive interpretation against the possibility of unlimited judicial creation of laws (pp.52-53).
An Integrative Subjective-Objective Theory
Barak emphasizes that, unlike standard uses of the term purposive interpretation in Anglo-American or Continental legal theory, his concept is “neither entirely subjective nor entirely objective” (p.89). He writes, “I see purpose as a legal construction, like concepts of ownership, right, and duty. It combines subjective elements (subjective purpose, author’s intent, subjective teleology) with objective elements (objective intent, the intent of the reasonable author and the legal system’s fundamental values, objective teleology) so they work simultaneously, rather than at different phases of the interpretive process” (p.88). He writes, “The interpretation is purposive because its goal is to achieve the purpose that the legal text is designed to achieve” (p.88). Thus, at the core of his theory is the interpretive turn which is simultaneously normative and empirical. The two cannot be separated analytically.
There are three components of purposive interpretation: language, purpose, and discretion (p.89). Language, or the semantic component, “sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear” (p.89). The purposive component is a “normative concept,” a “legal construction” – “the function that the text is designed to fulfill” (p.89). The purposive component is “the synthesis between a norm’s objective and subjective purposes” (p.91). The main role of the discretionary component is in “determining the ultimate purpose, after assigning the appropriate significance to each presumption [for both subjective and objective purposes] and resolving the conflicts among them” (p.92).
Because purposive interpretation is a general theory designed to be applied to all sorts of legal texts, it also allows for individual treatment of different sorts of documents. The way to distinguish among the interpretation of different texts is that subjective and objective purposes will be weighted differently for different texts. Secondary distinctions [*713] then come into play: age, scope of issues the text treats, regime that created the text, content-based factors, and so on (p.94). A goal for Barak is a “synthesis and integration between the text and the legal system” so that one general theory can work for all texts (p.95). Thus, I would conclude that a scholar must apply this general theory to the various texts found in a nation’s legal system, and develop a theory of legal interpretation for that nation, and then compare the findings among many nations. Alternately, a scholar could seek to compare, for example, the interpretation of wills among different nations after having created a general theory of legal interpretation among several nations. This theory and its usefulness for future scholarship in part rest on its inherently comparative character.
Interpreting Texts in Time—The Normative Significance of Purpose
Barak considers how a jurist and scholar might read a text. A text could be interpreted using the meaning of the language in it at the time it was written or at the time it is interpreted, and either choice could be correct depending on the circumstances (pp.98-99). In terms of the use of language, Barak writes that legislatures are obligated “to formulate statutes in a language that is understandable to members of a given society” (p.104). He then distinguishes between explicit and implicit meaning in legal documents and argues that both are part of the range of semantic meanings of documents (pp.104-105). He also discusses implied meaning, which refers to a gap in the text that a judge might fill through non-interpretive means (pp.105-106). Judges should assume that texts are using language in the “natural and ordinary” meanings of the words, but should allow for the possibility that “exceptional and special language” is being used (p.106). Barak writes, “Most legal systems have canons for understanding legal language” (p.107). Barak argues that these canons should be treated as semantic rules rather than legal rules—that is, “They help determine the range of a legal text’s semantic possibilities. They determine the meaning that the text is capable of bearing. They do not determine the legal meaning that the text bears” (p.107).
Barak discusses the essence of purpose. He writes, “The purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text” (p.110). Purpose is different from intent: “The purpose of a constitution is not to realize the intent of the founders. The purpose of a constitution is to provide a foundation for the social structure and its fundamental values” (p.111). In determining purpose, judges should look to the relevant context of the text, which is defined as “the data that provides information about the text’s purpose” (p.111). “Purposive interpretation sets guidelines for determining the purpose” – a judge may not simply assign any purpose he or she wants to a text (p.112). These guidelines help us determine how subjective and objective purposes interact. Barak notes two key principles for judges to follow: 1) “Both subjective purpose and objective purpose accompany the interpretive process from beginning to end . . . The judge decides how much weight to give the subjective [*714] or objective purpose at the end of the interpretive process;” and 2) “There is no principled starting point that gives preference to subjective or objective purpose” (p.113). One can see the radical nature of this point, given that many constitutional theories are built on such a preference.
Although bounded, interpretation requires much discretion. This is because texts have multiple purposes, which often exist at different levels of abstraction. Therefore, two steps are required in determining the appropriate level of abstraction: first, “[t]he level of particularity or generality of the subject regulated or addressed” must be determined and then “[t]he extent to which the content at the core of the normative arrangement is value-laden” (p.115). Judges should presume that the various purposes of a text (both subjective and objective, at different levels of abstraction) are in harmony, though this presumption can be rebutted (p.116). Using purposive interpretation, “an interpreter must make every effort to resolve contradictions among the different purposes . . . [taking] all the purposes into account and [trying] to synthesize them” (p.117). It is significant with regard to the duties of a judge that Barak writes, “If, after all efforts, the purposes do conflict, the judge must choose among them. He or she should use pre-established rules and criteria to do so or, as a last resort, discretion (p.117). Barak writes that various systems of criteria for establishing purpose could be used, and offers one of his own. (pp.118-119).
Subjective Purpose: Authorial Intent
In Chapter Six, Barak describes “The Essence of Subjective Purpose” to be authorial intent. He writes, “The subjective purpose of a legal text is the subjective intent of its author” (p.120). Intent “includes the values, objectives, interests, policy, aims, and function that the author(s) sought to actualize” (p.120). This purpose is the “real” purpose of the text at the time it was created, not a hypothetical purpose that the text might have had (p.121). Interpreters should consider the “true” intent of the actual author, not that of a reasonable person (p.123). Information about the intent of the author(s) can come from sources outside the text itself (p.122).
Although it may be difficult, Barak argues that it is possible to determine the actual intent of the author, even if this is a subjective measure (p.124). However, because there will be different subjective purposes, “subjective purpose usually does not lead to an unequivocal interpretive conclusion. . . While subjective purpose is relevant to the interpretive process, by itself it is insufficient to complete the interpretive process” (p.126).
While the concrete or consequentialist intention of the author of a text should be taken into account in determining the abstract subjective purpose of a legal text, Barak emphasizes that “the judge—not the author—is the authorized interpreter of a legal text,” and so the “author’s concrete intention weighs in no more heavily than abstract purpose”(p.127). Barak argues this while also emphasizing that concrete intention will weigh more heavily in some texts [*715] (wills, contracts) than in others (statutes, constitutions): for example, “The interpretive intention of the members of the constitutional assembly is relevant only insofar as it teaches about their abstract intention” (pp.128-129). Barak asks the important question: How is it possible to determine the subjective intent of a multi-member body like a legislature (or, worse yet, a referendum!) (pp.129-130)? In principle, Barak argues that subjective intent should always be taken into account, although practically (as with a referendum), this may be impossible (p.130). Barak argues that it is possible to “discover an intent formulated in the past,” and although it may not be perfect, a judge can “make a real attempt to arrive at the best substitute” (p.130).
For determining the intent of multi-member bodies like legislatures, Barak argues that “we should formulate a ‘theory of legislative organs’ that will set rules deciding under which circumstances we should consider the intents of which members of the legislative body to be the intent of the legislature” (p.132). Moreover, “an interpreter should not seek the motivations that propelled the members of the legislative body to vote in favor of the statute but rather should focus on the general objectives they sought to achieve” (p.134). Once determined, the subjective purpose of a multi-member body may not be useful to the interpretive process, but it is still important not to pretend it is impossible to determine or completely irrelevant (p.134).
Judges both look within and outside the text to determine subjective purpose. Judges find out about subjective purpose from a) the text itself (internal) and b) the context in which the text was created (extrinsic) (p.135). Barak emphasizes that internal information is generally more credible and should be afforded more weight, but that this will not always be the case (p.136). In determining purpose from internal sources, the judge must consider the text as a whole rather than as pieces, even though he or she is not asked to interpret the entire document (pp.137-138). Barak writes, “Interpreters infer subjective intent from the structure of the text as a whole and the divisions by which the author arranged its parts” (p.139). In determining subjective purpose from extrinsic sources (the “circumstances” under which the document was written), Barak asks whether a judge may consider circumstantial evidence (p.141). Barak decides that purposive interpretation allows the judge to “refer to the circumstances under all circumstances . . . a judge may move freely from text to context and back” (p.143). Barak writes that “[t]his approach is superior because it takes subjective purpose seriously. If interpretation is to take the subjective aspect seriously, it should look at every available source” (pp.143-144). Finally, Barak writes, “A text’s subjective purpose is presumed to determine its ultimate purpose” (p.145). This means that “Like any presumption, it turns to laws governing the status of subjective purpose . . . from rules into presumptions” (pp.145-146), affording subjective purpose a needed flexibility. Thus, the presumption may receive a [*716] different weight depending on the sort of text being interpreted.
Objective Purpose: Text and the World outside the Court
In Chapter Seven, Barak does a fine job of defining what he means by objective purpose. He writes, “The objective purpose of a legal text is the intent of the reasonable author. At a high level of abstraction, it is the ‘intent of the system’” (p.148). This is where hypothetical intent rather than actual intent comes into play. Objective purpose is “a legal construction that reflects the needs of society. It is an expression of a social ideal” (p.148). However, it is not unlimited because it must “operate within the limits of the text” (p.148). Thus, at the core of legal interpretation is what I have called in my work the social construction process.
The problem for each interpreter of a text is to determine the level of abstraction of objective purposes. Barak argues that the level of abstraction of objective purposes is determined by “the level of particularity or generality of the author of the text” (pp.149-150) and by “the degree to which the text is value-laden” (p.150). To determine this, Barak defines four levels of abstraction:
1. Low Level (“Imaginative Reconstruction”): “focuses on the author(s) of the text, inquiring into the values, objectives, designs, and function that the authors . . . would have wanted to actualize had they been asked to resolve the legal questions before the judge” (p.150).
2. Intermediate Level (Purpose of a Reasonable Author): “disengages from the individuality of the author and turns to the imaginary figure of the reasonable person” (p.151).
3. High Level (Purpose Derived from the Type and Nature of the Text): “looks at the type and nature of the text . . . [and asks] what typical purpose characterizes a certain kind of text” (p.152).
4. Supreme Level (Purpose Derived from System’s Fundamental Principles): “The judge consults the legal system’s general values, from which he or she tries to derive the legal text’s objective purpose” (p.152).
When documents have multiple objective purposes, Barak argues that they should be treated by judges as presumptions, so that the various purposes can be balanced rather than just eliminating purposes when they conflict (p.153). The need to recognize and consider multiple purposes seems to lead to more forthright constitutional interpretation. Moreover, one can see that the judge has an awesome responsibility, and the level of his discretion increases with the presence of multiple objective purposes (and presumptions) with their increasing levels of abstraction.
Most importantly, for Barak, “Objective purpose changes with time” (p.154). Supporting the idea of interpretation of text as a living process, Barak writes, “Judges should give the values and liberties grounded in it a contemporary meaning” (p.155). This will be true even for documents like wills or contracts, not just constitutions, yet in different degrees (pp.155-156). [*717]
As with subjective purpose, objective purpose can be determined through an analysis of internal and external sources (text and context) (p.157). Again, the text must be studied as a whole (pp.157-158). Appropriate external sources include related texts, as well as the “natural environment” of the text (i.e. “the immediate normative layout in which the text in question operates”) (p.159). With regard to constitutional law, Barak urges judges to seek harmony and unity in interpreting a constitution—again, no part should stand alone but the document should be studied and understood as a whole (pp.159-160). Other key external sources include “the general system of legislation and case law” (p.160), “the history of the text’s creation” (p.161), social and historical background – especially for constitutions and statutes (p.161), case law (pp.161-162), jurisprudence and legal culture (p.162), basic values of the system (p.163), and comparative law (p.169).
To help the reader understand what he means by objective purpose, Barak emphasizes that Cass Sunstein’s (1990) “background norms” are “part of the objective purpose that the text is designed to achieve. Judges translate them into presumptions about the purpose. These presumptions reflect the essence of the legal system, its aspirations and aims, and its constitutional viewpoint” (p.170). Basically, Barak is talking about the general presumptions that judges make about the purposes of statutes based on the fundamental values of society. Different legal systems accept different categories of presumptions. Therefore, this theory has utility in the emerging field of comparative legal theory and law. Barak writes that “assumptions about the (general) objective purpose of a text are legal norms that the judge must take into account. . . . Every purposive presumption has a ‘weight’ that varies with the weight of the fundamental value from which the presumption is derived” (pp.174-175). Although purposive presumptions always apply, not every presumption would apply to every text, because “if the language of a text cannot bear the purposive presumption, it does not apply to the text” (p.175).
Most importantly, the role of the judge is to “identify conflicting interpretive rules that create clashes between purposive presumptions which reflect clashes between values and principles” (p.176). The role of the judge is to resolve contradictions between purposive presumptions; judges must find “the proper balance between the conflicting presumptions” [while recognizing] “purposive presumptions have ‘weight’” (p.177). The act of balancing the weights of various presumptions is a normative practice in which judges must “rank” values and principles “according to their relative social importance” (p.178). Just because a value has a lighter weight does not mean it is eliminated from the legal system, but only that “the system limits its application or the scope of protection it is afforded” (p.178). Moreover, balancing may be principled (establishing a principle for future cases) or ad hoc (establishing no general principle) (p.179). To make matters even more complex, Barak identifies two main balancing formulas, horizontal and [*718] vertical: “Horizontal balancing occurs between values or principles of equal status. . . Vertical balancing formulas set the conditions under which certain values or principles prevail over others” (p.180).
The levels of abstraction in the law and in analyzing a constitution are so numerous (and the discretion of a judge so great) in Barak’s theory of interpretation, that it is quite clear, if applied to the American context, the constitutionality of banning gay marriage might or might not be constitutional. However, through comparison among legal systems, employing Barak’s purposive legal theory, could one witness the possible ranges of permissibility for gay marriage. Nations will differ in the range of possible legal responses to the question of whether banning gay marriage is unconstitutional, as will responses differ among judges in any given nation. This book opens the door to such analysis, and for this reason, among others, it is an important scholarly accomplishment.
In Chapter Eight, Barak continues his explanation of how judges should interpret legal texts. After determining subjective and objective purposes for a legal text, Barak writes, “Judges must formulate the ultimate purpose of the text. They use that purpose to pinpoint the legal meaning of the text along the range of its semantic meanings . . . [This stage] tries to synthesize and integrate subjective and objective purpose” (p.182). He notes, “Usually, all the information about purpose points in the same direction, because the presumptions of subjective and objective purpose are identical in their content. Sometimes, however, there is a conflict” (pp.182-183). Barak urges judges to do first whatever they can to avoid conflict and instead seek synthesis and integration. When this does not work and there is still conflict, the type of text should determine how the various factors are weighted. Barak’s theory of purposive interpretation distinguishes among texts based on six factors: legal character of the text (wills, contracts, statutes, and constitutions); age of the text; “scope of issues arranged in the text and the text’s aspirations for completeness;” character of the regime and society that created the text (particularly for statutes and constitutions); design of the text (based on rules, principles, or standards); and content of the issue being regulated (e.g. civil vs. criminal laws). As noted above,
Purposive interpretation applies to the interpretation of all legal texts, but it treats each type of text specially, according to its nature, allowing texts to develop and express themselves. It is the concept of purpose that facilitates this development and expression. . . Subjective purpose and objective purpose appear before the judge as presumptions, the balance between which gives rise to ultimate purpose (p.185).
Age of Text, Regime Change, and Specificity of Language
Age of the text is crucial to the interpretive process. Barak writes, “Judges may interpret a newly created legal text according to the intent of its author but, as time passes, interpret the [*719] same text according to the intention of the system” (p.191). Changes in society warrant changes in interpretation of legal texts, within the limits of the language of those texts (p.192). However, Barak emphasizes that judges should give more weight to subjective purposes in interpreting specific, narrow texts and should give more weight to objective purposes in more general texts (p.194). Regime change is also central to the interpretive process. Barak writes, “Changes in . . . fundamental assumptions affect the way we understand a text. Often, these changes occur over time, and the very passage of time affects the way we understand the text. Even when these changes occur quickly, however, they still affect the interpretation of the text” (p.196). The primary example of this sort of quick change is a nation transitioning to democracy (pp.196-197). Finally, the specificity of language informs whether judges should give more weight to subjective or objective purpose. Barak emphasizes that texts that set specific rules should be interpreted with a heavier weight toward subjective purpose, and those grounded in broader principles should be interpreted with a heavier weight toward objective purpose. Barak writes, “A text formulating a rule makes a precise decision about what is permitted and what is forbidden. In understanding the objective at the core of the prohibition and permission, judges should ascribe significant weight to the intent of the author at the time the text was written. . . In contrast, a text formulating a principle or standard sets and ideal to be attained. The ideal operates within a legal system, is shaped by it, and influences it” (p.198).
The purposive interpreter seeks to overcome conflicts between objective and subjective purpose. Barak offers a set of rules as to when objective and subjective purpose should be given stronger presumptions. This list of rules suggests that objective purpose should be more heavily weighted than subjective purpose, if significant time has elapsed since the text was created, if the structure of the regime and values of society have undergone significant change, if the text is based on principles and not rules, or if the context of the text justifies according significant weight to objective purpose (like a statute addressing human rights). Subjective purpose would be more heavily weighted in contrasting situations (e.g. when interpreting newer texts). In the case of constitutional interpretations, objective purpose is given “significant weight” except in “a young constitutional text” (p.204).
Judicial Discretion, Social Meaning and Purposive Interpretation: The Limitations of Conventional Hermeneutics
Chapter Nine explores judicial discretion. Given the fact that objective purpose usually trumps subjective purpose, there is wide discretion for judges. Barak writes, “Language sets the limits of interpretation. Purpose determines the choice of legal meanings, within the boundaries of language. Discretion operates when the purpose of the text does not point to a single, unique legal meaning” (p.207). Barak argues that any system of interpretation must [*720] rely on discretion to some degree; purposive interpretation simply acknowledges that fact openly (p.207). In so doing, Barak disagrees with Ronald Dworkin’s view that judicial discretion does not exist and that it is possible to determine a single legal solution to any case. Barak argues that “reasonableness does not provide a single, legal solution to every case.” Instead, two judges could reach two different but both appropriate results. This fact does not “reflect judicial imperialism but rather uncertainty in law. Law is not mathematics. It is a normative framework” (pp.209-210). Barak is very forthright in his discussion of judicial discretion. He argues that there are procedural and substantive limits to discretion (p.210). Moreover, “[Judges] exercise choice, but they remain within the confines of a society, a legal system, and a judicial tradition” (p.212). The importance of judicial discretion to Barak’s theory of interpretation is evident when Barak discusses how discretion would apply at all the stages of the interpretive process (pp.214-217).
In Chapter Ten, “The Theoretical Basis for Purposive Interpretation,” Barak explains why purposive interpretation “guarantees the achievement of the purpose of law” (p.220). He writes, “Law as a social device has a purpose,” and “every individual text has a purpose within the system” (p.223). For Barak, interpretation gives law its social meaning through the process of determining legal purpose.
Like a hermeneutic approach, the judge “tries to combine his or her modern understanding with the understanding at the core of the text. Moreover, one key aspect of hermeneutics that is highly applicable to purposive interpretation is that it “teaches us to take a holistic approach to the text, treating a will, contract, statute, or constitution as a whole” (p.231). However, Barak finds hermeneutics to be limited, in that “it does not help the interpreter assume a stance with respect to the relationship between authorial intent and the intention of the system” (p.232). Although semantics and hermeneutics are useful in discussing legal interpretation, Barak finds they “are not what determines which system of interpretation we choose. Constitutional law is the locus for this decision” (p.234).
Throughout the book, the most important test case for the validity of Barak’s theory of purposive interpretation is constitutional law. Barak concentrates on “the various constitutional considerations that should be taken into account in order to show that, taken together, those considerations point toward purposive interpretation as the most proper system of interpretation”(p.235). In doing so, Barak makes the following points: 1) Purposive interpretation is only appropriate for democratic regimes; 2) The role of the judge is “to help bridge the gap between law and society’s changing needs” and to “preserve democracy and defend the constitution,” both of which purposive interpretation best achieves; 3) “In engaging in [constitutional purposive] interpretation, a judge should express the basic constitutional character of the [*721] democratic regime;” 4) Under separation of powers, judges can not interpret statutes to achieve their own political interests, but instead should “give weight to a statue’s subjective purpose as an expression of legislative supremacy,” and objective purpose should also be considered in order to “actualize the values and principles” at the core of the constitution and democracy itself; 5) We should view the legislature as making a good faith effort to give proper social purposes to laws and not simply voting in terms of personal self-interest; and 6) Because a formal concept of the rule of law in the sense of “the principle of public order,” applies to any system of interpretation, it does not help us analyze purposive interpretation in and of itself. However, Barak finds that the jurisprudential aspect of the rule of law or “the minimum requirements that a legal system needs in order to exist,” are important to understanding purposive interpretation. In words strikingly similar to those in PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992) joint opinion by Justices O’Connor, Kennedy, and Souter, Barak highlights three key criteria, “the requirement of certainty of the law, stability of the law, and security in interpersonal relationships,” as being central to the jurisprudential aspect of rule of law, and argues that purposive interpretation best realizes these three requirements (pp.235-244).
Finally, Barak highlights the concept of a substantive rule of law, meaning that “rule of law requires both majority rule (legislative supremacy) and human rights (guaranteeing the system’s fundamental values).” Purposive interpretation balances subjective purpose (legislative intent) with objective purpose (human rights/fundamental values considerations) (p.246).
Institutional concerns frequent Barak’s theory of purposive interpretation. He writes, “Public confidence in the judiciary is an important constitutional consideration for any system of interpretation. Such confidence is crucial to any democracy,” as is an “independent, objective judiciary” (p.252). Moreover, he writes, “Public confidence in the judiciary will increase . . . if judges achieve the purpose at the core of the statute” (p.253). In contrast, judges who use their own personal preferences to interpret law or who “freeze legal development, [allowing] the past to dominate the present,” will damage public confidence in the judiciary (pp.253-254). In these words we see the importance of a theory of judicial decision-making that views a Constitution as a living document. In these words, we also see that an important aspect of purposive interpretation, and one that is central to respect for law and courts, is that change in law and constitutional interpretation, respecting changes in the world outside the Court, are basic to political development in democracies. Moreover, legal norms are part of “the existing legal framework, becoming part of the systemic and constitutional structure” (p.254), and fundamental constitutional values are central to such a framework. Barak writes, “The interpreter of any [*722] legal text must integrate it into the constitutional structure of the democracy and the system’s fundamental values” (p.256). Purposive interpretation obviously fits into this goal with the use of objective purpose. Moreover, these fundamental values are not just about constitutions and statutes but also apply to the interpretation of private law texts like contracts and wills (pp.256-258).
Comparing Purposive Interpretation and Contemporary Constitutional Theories:
Originalism and the New Textualism, Pragmatism, Moral Theory, and Free Interpretation
Chapter Eleven provides a critique of constitutional theories built on subjective models of intentionalism, because they are either limited to the language of the statute or they focus only on the subjective intent of the author (that is, the legislature, framers, or the hypothetical intent of the words of the document). He finds three major problems with intentionalist theories. 1) Most subjective systems are not really ‘subjective’ because they do not investigate the actual will of the author,” often focusing on the reasonable author instead. In contrast, purposive interpretation allows the judge room to examine both the actual intent of the author and the hypothetical intent (pp.265-266). 2). Intentionalism “does not provide a solution to all the interpretive problems that the judge faces. It does not meet the condition of efficacy” (p.266). There will be situations in which subjective intent is insufficient to reach the legal meaning of the text. Barak emphasizes that it may be impossible to determine the actual intent, or that intent may be irrelevant to “solving the interpretive problem before the judge” (pp.266-267). Finally, 3) In contrast to theories built on subjective interpretation, purposive interpretation may consider both subjective and objective purpose; it is able to deal with interpretive problems even when true intent is elusive. Thus, for Barak, intentionalism “fails to view the text being interpreted as a creature of a changing environment. It is insensitive to the existence of a legal system and democratic regime in which framework the text operates.” Again, purposive interpretation is designed to view the text as a whole, in context, and so avoids this problem, which I will label “environmental insensitivity” (p.267).
Under these general concerns, both the “old textualism” that seeks to discover the author’s intent and the “new textualism” that seeks to understand the text “the way a reasonable reader would have read it when it was enacted” (like that of Justice Scalia), are wanting in similar ways, with the new textualism having additional drawbacks (p.277). Most importantly to Barak, under “new textualism legislative history and fundamental values are excluded under all circumstances (p.279). Barak writes, “New textualism correctly points out that the legislature enacted the statute and not the intent. However, that does not mean that we cannot take the intent into consideration, in order to understand the statute. We might as well say that the legislature enacted the statute and not the dictionary, and thus we cannot take the dictionary into consideration in understanding the statute” (p.280). Moreover, Barak believes that new [*723] textualism’s claim, that taking intent and fundamental values into account harms democracy, is flawed. He writes, “New textualism harms formal democracy by treating a piece of legislation – which expresses the decision of the majority – as a decision made with no goal” (p.281). “New textualism harms substantive democracy [by severing] the statute from society’s fundamental values in general, and from human rights in particular” (p.282). Also, Barak argues that new textualism claims to understand texts according to the reading that a reasonable person would give them. However, this is actually giving the judge much more discretion than under a system like purposive interpretation because the judge “determines that the meaning of a text is ‘plain’ by sense, outside any normative framework” (p.282). Also, law under the new textualism is overly static and formalistic. It would not seem to matter if “instead of judges, linguists or reasonable people off the street engaged in statutory interpretation” (p.283). Most importantly, Barak writes, “Values and principles framed the text’s creation, and they frame its interpretation. Why not consciously recognize them as an indispensable device for understanding the text?”(p.284). The new textualism advocates originalism in interpreting the constitution; however, Barak finds that there is no basis for this approach in constitutional theory (pp.284-285).
One can gain an insight into Barak’s theory of interpretation by comparing it with other constitutional theories. One can see the similarities and differences between purposive interpretation and pragmatism “at those junctions at which judges exercise discretion (pp.213-214). Barak writes
[Pragmatism] generally [deals] with interpreting public law texts (statutes, constitutions), and [resists] formalism in favor of substance. Pragmatists consider both text and context. They read the text as a whole; they study the intent of the author, the way understanding of the text has developed, and the system’s fundamental values. . . Pragmatism leads to an important result, a result that can be reached in other systems of interpretation, including purposive interpretation: the dynamic interpretation of statutes and constitutions. The legislator or framer does not control statutory or constitutional interpretation but the interpreter also considers other sources of information about the text (p.287).
A text therefore has a dynamic rather than a static meaning. Dynamic interpretation is not unique to pragmatism: purposive interpretation is also based upon it (p.288). Here we see the importance of contextual factors and the notion of a living constitution in both pragmatism and purposive interpretation.
Barak emphasizes that the two approaches also “diverge substantially. Purposive interpretation asks, first and foremost: What is the goal of interpretation? Its answer is institutional that the goal of interpretation is to achieve the objective of the text. . . In pragmatic interpretation, however, the guidance of purposive interpretation, directing the interpreter to search for and achieve the goal of the text, does not exist—or exists to a diminished extent” (p.288). Barak’s criticism of pragmatism is premised on the view that one “cannot [*724] know what the best (pragmatic) solution is without first establishing the objective that interpretation is to achieve” (p.289). Thus, under purposive discrimination, a judge must make clear the basic principles upon which she is making a decision, and she does so by searching for the purpose of the text. This is a quite different view from that of scholars, such as Cass Sunstein and other pragmatists, who argue for judicial minimalism, usually on grounds.
Barak also finds Ronald Dworkin’s system of interpretation wanting, because it is based on the idea of integrity, so that judges “give each piece of legislation the meaning that shows its political history in the best light” (pp.290-291). Barak dislikes the fact that under Dworkin’s constitutional theory, “The interpreter must select, from among the potential semantic meanings, the meaning that advances the principles and policies that give the statute its best political justification” (p.292). Although Dworkin’s model is based on dynamic interpretation, Barak disagrees with “Dworkin’s point of departure [as] the present. The goal of interpretation is to give a statute enacted in the past the best present political justification in order to regulate social life in the future” (p.293). Barak does not like the fact that Dworkin privileges justice, fairness, and procedural due process over the totality of society’s fundamental democratic values.
Barak also disagrees with the fact that Dworkin explicitly recognizes a place for judicial discretion that is less bounded than Barak desires. Finally, Barak writes that Dworkin’s theory gives too central a place to the abstract intent of the author. Barak writes, “When the type of text warrants it, the purposive interpreter gives abstract intent very little weight, even when the result fails to cast the political history of the text in its most favorable light” (p.297). Barak admits that both Dworkin’s theory and purposive interpretation seek to actualize the fundamental values of the political system by adopting a moral-political approach (p.297). However, Barak writes: “[Purposive interpretation] treats the fundamental values of the system as a purpose that coexists with – and sometimes supplants – subjective purpose. Dworkin, on the other hand, views the system’s fundamental values as an extension of the abstract intent of the legislature. Such intent develops according to the principles of integrity” (p.297).
Barak is not a legal realist. He rejects what he calls theories of free interpretation, which are theories of legal decision making that do not view interpretive rules as binding on judges. He writes, “According to free interpretation, there are no interpretive rules to guide judges. . . In essence, the free approach is not interpretive at all—it negates the guiding power of interpretive rules” (p.297). Barak writes, “Social reality and social forces drive law and determine the aims of legal discipline. To this extent, we can accept some precepts of the free approach” (p.299).
However, he disagrees with the free interpretation approach because it goes too far: “Law inevitably contains [*725] uncertainty, but uncertainty does not surround every legal text, in every circumstance. Most legal texts, in most circumstances . . . have a single, unique meaning. Interpretation with no semantic boundaries is not interpretation” (pp.299-300). Thus, legal interpretation, while allowing for judicial discretion, is more bounded than in free interpretation theory. It is clear that Barak seeks a more moderate and complex constitutional theory than those advocated by new textualists, pragmatists, moral theorists, and free interpretation theorists.
In the conclusion to Part II, Barak identifies and rebuts three main criticisms of purposive interpretation “as an independent system” of interpretation. Barak writes:
I identify three primary criticisms: First, purposive interpretation tries to achieve the impossible by formulating a theory of interpretation that applies to all legal texts; second, purposive interpretation confers overly broad interpretive discretion to the interpreting judge; third, purposive interpretation is too complicated (p.301).
To the critique that as a uniform system of interpretation, his purposive interpretation is overly ambitious because he seeks it to be applied to all legal texts, Barak replies:
Legal texts contain more similarities than differences, and that purposive interpretation expresses these similarities by giving every legal text a meaning, within the limits of language, that realizes the (subjective and objective) purposive of the text. That element is common to all legal texts and supersedes what is different about them. Furthermore, purposive interpretation does not ignore or suppress the elements that divide texts. To the contrary: It takes the differences into consideration and gives them full expression by tailoring the internal balance between subjective and objective purpose accordingly. It gives each text full range to express its individuality (p.302).
One can see the importance of the comparison in textual analysis when Barak emphasizes that his theory of purposive interpretation across a wide range of texts “facilitates cross-fertilization of interpretive viewpoints. . . By taking all texts into account comprehensively, we strengthen the different components of purposive interpretation and make progress toward developing a unitary theory that recognizes the individuality of its components” (p.303).
In response to the criticism that purposive interpretation dictates overly broad judicial discretion based on too few rules and principles, Barak writes, “It is true that purposive interpretation is based on a component of judicial discretion, but that is necessarily true for any system of interpretation that aspires to provide a solution to every interpretive problem” (p.303). He also believes that not only is the degree of judicial discretion no greater than in other systems of interpretation, but purposive interpretation actually restricts discretion more than most other interpretive systems. Barak makes a valid point when he writes:
Unlike many systems of interpretation, purposive interpretation adopts a normative stance on the relationship [*726] between different presumptions (subjective and objective). Whereas other systems leave some decisions buried in the intuition of the interpreter, purposive interpretation pushes those issues to the surface and forces the interpreter to adopt and normative stance, dictated by rules and principles, with respect to those issues (p.303).
These words resonate with Barak’s critique of pragmatism, moral theory, and free expression approaches to legal interpretation. (See my critique of pragmatism in Hirsch 2005) Similarly, Barak makes a valid point when he argues that most constitutional theorists and judges rely on discretion; most of them just will not admit it. Moreover, by talking about discretion, purposive interpretation actually puts more limits on it than in many other approaches to legal interpretation (p.303). I believe that if scholars would seek to apply the theory of purposive interpretation to the process of textual analysis, one could better test the validity of this criticism.
There is a transparency of judicial thinking in purposive interpretation because it forces a jurist or scholar to limit the “gap between rhetoric and practice” and “tell the truth” (p.303). Barak writes:
It acknowledges the need to give expression to the real intent of the author, but notes when there is no credible information about the intent, or such intent is not relevant to resolving the interpretive problem, then the interpreter abandons legislative intent in favor of the fundamental values of the system. It acknowledges that the ultimate purpose of a text is as legal construction based on the balance between different purposes. It acknowledges the existence of legal discretion, limited judicial subjectivity, and judicial creativity. It lays the cards on the table, demanding complete transparency of the judicial work of interpretation. . . Purposive interpretation achieves the goal of law; it realizes the role of judge in a democracy; its dynamic approach allows the judge to bridge the gap between law and society; its constitutional approach gives full expression to formal and substantive democracy.
In these words we see that Barak’s purposive interpretation is more like a constitutional law approach to wills, contracts, statutes, and constitutions. We also see the importance to Barak of linking law and courts to the social, political, and economic reality outside the Court, and for judges and legal theorists to support more transparency in judicial decision making. I support these efforts because they link legal (constitutional theory) to a major concern of political scientists: explaining judicial decision making. For Barak, constitutional theory should not be viewed as primarily a legalist argument in support of specific constitutional objectives and ends in normative or policy terms.
To the criticism that purposive interpretation is too complicated, that it has too many rules and principles to burden the interpreter, Barak responds that familiarity with the process will reduce such fears; judges will be able immediately to reach the ultimate purpose whether they start from a consideration of subjective or objective purpose; “only in a minority of cases will the interpreter need to exhaust every avenue of purposive interpretation. In [*727] these few instances, there are no easy solutions, and the interpreter will have to go through the entire interpretive process. There is no reason to assume, however, that that process is longer and more complicated in purposive interpretation than in other systems of interpretation” (p.304).
Barak’s response to this last criticism is disingenuous because interpretive theories that focus primarily on objective or subjective standards are less complicated due to having more limited standards for evaluating a text than under purposive interpretation. In part for that reason, such theories have more built-in policy and normative premises and pre-ordained outcomes from their application to texts. Barak does require a look at authorial intent, age of text, and how the balance of objective and subjective principles leads a jurist to determine the amount of judicial discretion that is to be permitted. With regard to all texts, and most pointedly in landmark Supreme Court Cases, fundamental values and the world outside the legal institution are crucial. In such cases the paradigmatic implications for the development of doctrine and court power are significant. In such cases the interpretive process is more complicated, judicial discretion is at it highest, and more of the factors defined by Barak in purposive interpretation come into play. Also, Barak’s call for transparency in judicial decision making as to a court’s consideration of the balance of the objective and subjective to find purpose, allows for greater scholarly analysis of court actions. In so doing, “empirical studies” of legal institutions’ decision making, applying Barak’s theory of purposive interpretation, would reduce fears as to whether it is too complicated and whether judges actually engage in too much discretion.
Purposive Theory in Action
In Part III: Interpretation in Law, we can witness the central elements of Barak’s purposive theory of interpretation at work. In so doing, these pages increase the reader’s ability to assess critically how the core elements of the theory intersect. In this regard, I will limit my remarks to Chapter 14 (“Statutory Interpretation”) and Chapter 15 (“Constitutional Interpretation”), rather than the application of the theory to wills and contracts.
One can see the complexity, judicial discretion, and concern for social needs that is required by judges who engage in purposive interpretation under Barak’s analysis of statutory interpretation. Barak writes, “Judges should . . . give statutory provisions a meaning that bridges the inevitable gap between law and society’s needs,” “giving expression to legislative supremacy and to the supremacy of constitutional values” (p.339). With regard to finding ultimate statutory purpose, Barak writes, “The legislature passes legislation in order to achieve a certain purpose. Judges should therefore use the subjective purpose as a criterion in interpreting it. . . A statute is not a one-time creation of a transient legislature acting within the confines of a randomly assembled society. . . The basic values of the legal system are more than just a background for a legislative act; they are also the purpose that the legislation was designed to achieve” (p.339). [*728] In statutory interpretation, subjective purpose are the actual “goals, social changes, and aims to which the members of the legislative body have agreed. . . The language of the statute is a primary source for understanding its subjective purpose” (p.342). Legislative history should also be used to determine the context of subjective purpose; however, Barak writes, “[Judges] should remember that it is the statute that underwent the legislative process, not its history. Legislative history is not part of the statute, but rather a source of information about the statutes subjective purpose” (p.350).
We see the theory of purposive interpretation, and its complexity, when Barak emphasizes that an interpreter must be aware that there are many levels of abstraction at work in any process of dynamic interpretation (p.351). Sources for learning about objective purpose include the statute and external sources such as other statutes, values and principles of the legal system in general, the legal situation surrounding the statute’s enactment, and comparative law (p.352). Barak lists presumptions of purpose that judges should use in interpreting statutes: 1) “a statute is not the one-act of a transient legislature operating in a legislative vacuum. The statutes taken together create the legal system’s legislative project”; 2) “Legislation takes place against the background of fundamental jurisprudential viewpoints, legal concepts, and general laws” (p.354); and 3) While harmony among legislation should be a goal, [it] is “a relative concept. It is an aspiration, a rebuttable presumption.” When legislative disharmony occurs, “[t]he judge is responsible for maintaining normative harmony” even though the task is viewed by some as “Herculean” (pp.353-355).
The presumptions of purpose found within sources external to the statute that a judge must consider when interpreting the purpose of a statute include: 1) other statutes within a system of statutes; 2) legislative history, in order to understand “the social background or the circumstances that made the legislation necessary;” 3) the “socio-historical background of a statute,” which helps shapes its purpose; 4) the framework of general statutory, case law, and customary laws that shape its cultivation and development, since all legislation is a process of evolution not revolution; 5) the fundamental values of the legal system, such as core documents, presence of democratic regime, the status of the individual as a free person, the social consensus, and the case law of courts, which are in a constant state of flux; 6) comparative law, which should be used cautiously; 7) the social goals of a democratic regime (separation of powers, theoretical principle of rule of law including substantive aspects, and human rights); 8) proper modes of ordinary behavior; 9) human rights are protected; and 10) (the presumption that) legislation does not apply retroactively (pp.355-363).
Barak concludes the chapter with notes on how justices ought to weigh different presumptions of purpose in interpreting statutes when these presumptions conflict. When objective purposes conflict, Barak writes, [*729]
Judges resolve the contradiction by assigning weight to the various presumptions and conducting a principled balance (horizontal and vertical) between them. The weight of the presumptions depends on the relative importance of the values and principles for which they stand. The balance generally yields a clear and unequivocal resolution. In cases were the scales are even, however, judges should use subjective purpose to help resolve the contradiction (p.366).
Again, the quality of judicial decisions, and the call for transparency in the form of clearly reasoned decisions, will either reduce discretion, or at a minimum, reduce its effects, because transparency allows political bodies to use its resources to respond to judicial decisions.
Chapter 15, “Constitutional Interpretation,” opens Barak’s purposive interpretation to much criticism, in part because he is quite open about the high level of discretion in which constitutional justices engage, especially when deciding landmark cases. Barak writes, “A constitution occupies a special status in the legal system,” and its interpretation “warrant[s] a special interpretive approach to its interpretation” (p.370). Barak lists some of these unique characteristics: 1) “A constitution sits at the top of the normative pyramid;” 2) “It shapes the character of society and its aspirations throughout history;” 3) It establishes a nation’s basic political points of view; 4) “It lays the foundation for social values, setting goals, obligations, and trends;” 5) “It is designed to guide human behavior over an extended period of time, establishing the framework for enacting legislation and managing the national government;” 6) “It reflects the events of the past, lays a foundation for the present, and shapes the future;” 7) “It is at once philosophy, politics, society, and law; and 8) “The unique characteristics of a constitution warrant a special interpretive approach to its interpretation,” because “it is a constitution we are expounding” (p.370).
Although constitutional interpretation is unique, and quite different from the interpretation of wills, contracts, and statutes, it is not so unique as to require a conceptually different theory of interpretation from other legal documents. At the core of a constitution’s uniqueness is that, unlike a statute, it is drafted with an eye to the future; it is a continuing framework for the legitimate exercise of governmental power. With this in mind, Barak argues that “[w]ithout negating the applicability of subjective purpose, purposive interpretation favors objective purpose in constitutional interpretation” (p.371). The fact that objective purpose is more heavily weighted than is subjective purpose in constitutional interpretation is an important part of the theory, because the nature of the balance between objective and subjective purpose in constitutions, as well as in wills, contracts, and statutes, seems to be an a priori decision. It is not derived from the historical, cultural, political, and legal norms developed in a specific nation.
An argument for favoring objective interpretation in the interpretation of constitutions is based on Barak’s view that constitutions “contain more [*730] ‘opaque’ expressions than other legal texts” (p.372). They contain many open-ended or vague phrases that could be interpreted in many ways because: 1) “A constitutional text expresses national agreement. In order to reach agreement, nations generally must confine themselves to opaque and open-ended terms;” 2) “A constitutional text seeks to establish the nation’s fundamental values, covenants, and social viewpoints. We tend to express those concepts in value-laden language, conveying a message that is rarely clear or unequivocal;” 3) “A constitutional text is designed to regulated human behavior for future generations,” and so the language must be flexible; and 4) The importance of implicit language is far greater in constitutions than in other legal texts (i.e., we infer separation of powers and implied fundamental rights) (pp.372-374). In making the argument for the importance of objective over subjective interpretation of constitutions, Barak writes, “The fact that we may learn the purpose of a constitution from sources external to it does not mean that we can give a constitution a meaning that is inconsistent with its explicit and implicit language” (p.375).
Barak is quite clear about the secondary nature of subjective purpose in constitutional interpretation and that any intent of the founders not evident in the words of the constitution should not be a basis for its interpretation. Barak writes, “The subjective purpose of a constitution is the goals, interests, values, aims, policies, and function that the founders of the constitution sought to actualize. Despite literature arguing the contrary, I believe that a constitution has a subjective purpose that judges can identify” (p.375). However, the subjective purpose must be determined through an analysis of the words and structure of the constitution itself. He writes, “We are not interested in how the authors of the constitution envisioned that a particular right would apply to a given set of facts (concrete intention). . . Judges should take subjective purpose into account only if it can be achieved through the language of the constitution. If we learn from external sources that the founders intended something that cannot be achieved through the language of the constitution, we must conclude that while they wanted to achieve a particular purpose, they failed to agree on a text that would make it possible” (pp.375-376). In determining the abstract intent of any words of the constitution, judges must analyze the entire text, as well as its pre- and post- enactment developments.
Consideration of objective purpose is far more important in constitutional interpretation. Barak writes, “The objective purpose of a constitution is the interests, goals, values, aims, policies, and function that the constitutional text is designed to actualize in a democracy” (p.377). Barak lists four levels of abstraction (from lowest to highest) at which we can view objective purpose: 1) “Imaginative reconstruction,” which is “the purpose that the authors of the constitution would have envisioned, had they considered the matter;” 2) the “purpose reasonable authors of the constitution would have envisioned;” 3) the “purpose at the core of a constitutional arrangement of the type and nature in question, in other words, [*731] the purpose of the particular constitutional right or fundamental political structure;” and 4) at the highest level of abstraction are “[t]he fundamental values of the system that form the normative umbrella spread over all legal texts in the system, including the constitutional text” (p.377).
It is very significant that Barak separates the sources of objective purpose into internal and external sources. The internal sources are “the structure of the constitution and relationship between its different parts [which] provide information about the function, values, and principles that it is (objectively) designed to realize” (pp.377-378), studied with a concern for “constitutional unity,” but not at the expense of imposing one or another moral or philosophical world view (p.378). He writes, “We do not just seek the semantic meaning of the constitutional provisions and the intratextualism of the Constitution. We are interested in their legal meaning as a reflection of constitutional purpose” (p.379). Thus considering internal sources of objective purpose means interpreting the constitution as a whole, looking at “the structure of the constitution and the relationship between its different parts” (p.377). Judges should seek constitutional unity, but should not “artificially impose unity where none exists” (p.378).
The external sources of objective purpose are far more important in Barak’s purposive interpretive theory, as applied to constitutional texts. These include: 1) Other constitutional provisions, which in the American context would mean later amendments to the constitution that may affect our understanding of previous provisions (p.379); 2) Post-Enactment History: “Understanding a constitution requires understanding the historical continuity of which it is a part, or the break in continuity and the beginning of something new” (p.379); 3) Judicial Constitutional Case Law: because the modern interpreter “is just one link in a common law chain that directly and indirectly affects his or her work,” a judge must consider precedent, the maintenance of constitutional unity, with due respect for the level of abstraction through which a constitutional provision has been interpreted in the past; and 4) Fundamental Values “like freedom, human dignity, privacy, and equality saturate constitutional texts. . . The interpreter learns them from fundamental documents like the declaration of independence, from case law, and from the totality of the national experience” (p.381). Barak writes that fundamental values should be interpreted according to contemporary needs, “whether or not they receive explicit mention in the constitution. He continues, “The question is not how the founders . . . understood liberty, but rather what it means in our modern understanding” (p.381). Barak emphasizes that interpreters should only use values they believe to be lasting rather than passing trends, and fundamental values should only be taken into account if the text of the constitution allows for it (pp.381-382). However, given his description of how to read a text, interpreters have wide discretion in such analyses. Finally, Barak discusses a fifth source, Comparative Law: “Comparative [*732] constitutional law helps widen horizons and share information across systems” (p.382).
Scholars differ widely over the role that each of these external sources should play in constitutional interpretation. One need merely note the cottage industry of articles over the role non-American legal sources should play in contemporary constitutional interpretation. So a critique of purposive interpretation could be based on differences with Barak over the place of different internal and external sources of objective purpose in constitutional decision making, as well as the question of whether he places too much reliance on the place of objective purpose in the interpretations of constitutions.
However, it is more useful to ask whether a unitary theory for the interpretation of all legal texts (wills, contracts, statute, and constitution) is a wise objective for scholars, and whether Barak’s purposive interpretation furthers this objective. With regard to the purposive interpretation of constitutions, Barak responds to this query: “Just because there are a number of ways we can interpret a constitutional text does not mean there are a number of ways we should interpret a constitutional text. We seek to develop a system that gives priority to one understanding over another—without claiming that one understanding is truer than another” (pp.384-385).
In this book, we see the judge of a constitutional court at work when he calls on judges to use all data available to them to determine purpose. Barak writes, “There are no phases of transition from one kind of datum to another, no a priori ranking of data. . . The purposive interpreter aspires to synthesis and coordination between the different levels of abstraction of subjective purpose by choosing the level of abstraction that accords with objective purpose,” and vice versa (p.385). When data on objective and subjective purpose conflict, objective purpose should be given decisive weight because “only then can the constitution fulfill its aim; only then can it guide human behavior over generations of social change” (p.385). Judges should not ignore subjective purpose, but neither is it decisive (pp.386-390). Barak deplores the fact that in the American system (unlike that of most other democracies), “judges and legal scholars engage in extensive discussions of the original intent of the founding fathers” (p.388). He writes, “American constitutional law is in crisis because of the American legal community’s failure to reach consensus over the relationship between the intent of the founders of the Constitution, the original understanding of the Constitution at the time of its founding, and the modern view of understanding the Constitution through its interpretation” (p.389). Purposive interpretation’s answer to this problem is to focus on objective purpose without completely excluding subjective purpose: “The ultimate constitutional purpose is modern, but its roots are in the past” (p.390).
Finally, Barak examines Justice Scalia’s claim that “if judges interpret the constitution according to modern worldviews, the constitution will reflect [*733] the perspectives of the majority, at the expense of the rights of the minority” (p.390). Barak’s response: “A modern perspective on human rights does not necessarily mean the perspective that the majority favors. . . [T]he purposive approach interprets the constitution according to basic, fundamental values that reflect modern society’s deep perspectives, not passing trends” (p.390). Moreover, “Judges should adopt a broad perspective on constitutional interpretation. Their interpretation should be generous, not legalistic or pedantic” (p.391). This means looking for ultimate purpose and unity throughout the legal system (p.392).
PURPOSIVE INTERPRETATION IN LAW offers an important look into the mind of one of the most important constitutional jurists in the world, the President of the Supreme Court of Israel. We get a rare glimpse into the theory behind his constitutional decision making. This opens the door for scholarship regarding the degree to which Barak engages in purposive interpretation when he makes constitutional choices.
This book also is a primer on the complexity of the process of the legal interpretation of a constitution and other legal texts. It shows us that at one level of abstraction, the nature of text makes a difference by bounding its interpreters. However, at a higher level of abstraction, such as a nation’s fundamental values, general statements as to the interpretation of all texts can be made.
The book has many positive qualities, as a first step toward a unified general theory of interpretation that can be applied across quite different legal texts: statutes, wills, contracts, and constitutions. Barak is especially clear as to the difference between interpreting constitutions as compared to other legal texts. He also is very clear about how texts differ with regard to the place of subjective and objective purpose in their interpretation. Moreover, the historical context and age of texts are important to the set of presumptions a judge may use when interpreting them. It is best to view this theory as a set of problematics for judges and scholars to follow.
However, Barak overstates the level of unity found in constitutional interpretation in the United States, as well as among world constitutional courts. Laurence Tribe’s decision not to complete his treatise on constitutional law is testament to the lack of unity among doctrinal areas and constitutional theories. If there is less unity in the interpretation of constitutions within and among nations, one can expect even more disunity in the interpretation among varying types of legal texts. However, this concern does not forbid scholars, for example, to compare the interpretation of wills within and among nations, to determine whether there are interesting differences. One does not have to prove the validity of the unity of the entire theory of purposive interpretation within and among all nations and legal texts to conclude that Barak’s theory of purposive interpretation in law is a major scholarly contribution. Moreover, this effort at comparison of interpretation among [*734] different texts will do much to reduce the insularity that is presently found in scholarship on wills, contracts, statutes, and constitutions. Barak forces scholars to consider the similarities in the interpretation, rather than assuming there are none.
Ironically, although Barak seeks to develop a general theory of interpretation, and he presents a framework for comparing the interpretation of texts within and among nations, he provides few specific comparisons of interpretive practices found among nations. Barak does not even choose to apply this theory to comparative constitutional interpretation between the United States and Israel. The potential for this theory to be used comparatively is great, a potentiality that is not realized in this book.
Barak offers a theory of interpretation through which the clash of subjective and objective intent helps judges make specific legal (constitutional) choices. However, having laid out large dichotomies for judicial concern, and having suggested internal (to courts and legal principle) and external factors that judges should and should not use in a democracy to determine specific cases, he does not offer answers to the tough questions about how to weigh internal and external factors in making constitutional decisions. Nonetheless, this theory will allow us to begin a comparative analysis of whether courts in different nations, when interpreting different legal texts, consider subjective and objective purposes or the consequences of these differences for the development of individual rights and constitutional principles which limit the abuse of government power.
With regard to constitutional theory, this book is terrific in demonstrating major pitfalls in originalist constitutional theories, while also demonstrating when authorial intent does have a place in constitutional interpretation. Barak is specifically astute in his criticism of the “new textual” form of originalism, as advocated by Justice Scalia. This book also brings to life the problems with pragmatism and moral theory as bases for judicial decision-making. More specifically, Barak does a good job defining the difference between authorial intent and the intention of the system, and he rejects authorial intent as the major source for decision making in constitutional interpretation. In so doing, he offers a cogent critique of hermeneutics, in contrast to constitutional theory, as a basis for a theory of legal interpretation. He writes, “[hermeneutics] does not help the interpreter assume a stance with respect to the relationship between authorial intent and the intention of the system” (p.232). When interpreting a literary text, for example, it is fine to come up with ten different interesting meanings and write about that, but with legal interpretation, judges must settle on one clear legal meaning—it would not be permissible for them to just list the possibilities!
Therefore, Barak cogently argues that we need a normative system (constitutional law and theory) to tell us how to weight different aspects, so that judges can decide upon a single legal meaning. I urge readers to consider the [*735] Barak book in light of Dennis J. Goldford’s THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM. Read together these books do a masterful job of exploring the relationship between hermeneutics, authorial intent, and originalism, analyses that demonstrate the limitations of contemporary originalism as an interpretive method and constitutional theory.
One also witnesses a careful analysis by Barak of why the limitations of hermeneutics are similar to those of pragmatism (as an interpretive theory). Pragmatism, like hermeneutics, provides the basic ideas about how to interpret semantically and what should be used in interpretation, but it does not tell us how we should weight these different aspects. For example, it tells us that we should look at both text and context, but not which of these should be weighted more heavily when they conflict. Pragmatism fails to delineate principles and standards of evaluation upon which the interpretation rests. He argues forcefully that the goal of interpretation is to achieve the purpose of the text, while under pragmatism, there is no clearly stated goal at all; judges are simply expected to do what they think is best. Moreover, for Barak, the lack of stated principles under pragmatism leaves too much to judicial discretion and reduces judicial accountability in a democracy.
Definitions are generally very clear. Barak makes the distinction between subjective and objective purpose especially clear—subjective purpose being anything related to the real intent/purpose of the actual author of a text, and objective purpose being things other than the actual intent of the author. Objective intent has a wide range, from the hypothetical intent of the author to the intent of the system/fundamental values.
Throughout the book, we see that in his weighting of different sorts of purpose, the subjective always loses out to objective purpose in interpretation of constitutions (unlike in the other three areas, where there are certain circumstances when either subjective or objective purpose may have decisive weight). Thus, it seems a little disingenuous to claim that subjective intent should be important to constitutional interpretation and that judges should spend time uncovering it, if it will never be decisive in constitutional interpretation. Moreover, subjective intent also seems less important in interpretation of statutes. Does this mean that interpretation of wills and contracts is so different from interpretation of constitutions and statutes that the generality of Barak’s theory of purposive interpretations of legal texts must be questioned? Given that objective purpose usually trumps subjective purpose, especially in constitutional and statutory interpretation, one can ask whether the clash of subjective and objective purposes should constitute a key principle of Barak’s general theory of interpretation?
Institutionally, Barak is well aware that judicial decision-making is usually more bounded than political decision-making. He recognizes that legal rules and approaches to interpretation place [*736] limitations on judges that are not placed on political leaders. He also introduces the reader to the idea that how a judge answers questions about the relationship between objective and subjective purpose limits the discretion of judges. He is aware that institutional norms and processes are different for judges and for other legal actors compared to political actors. However, there is no analysis of how institutional norms and processes inform the substantive choices that judges, compared to political actors, would make under his theory of purposive interpretation.
Barak’s constitutional theory, which involves a search for objective purpose, necessitates that the judiciary have independence from political actors and majoritarianism. Courts should not be perceived primarily as agents of the legislature or of the people, defined in simply majoritarian terms. The quest for objective purpose requires concern for fundamental rights and needs of the people, both of which should not be viewed as the product of electoral politics.
Moreover, seeking the objective intent of the system as a legal construction requires judges to look at principles and precedent in light of changing social needs of citizens. These relationships will make it possible for scholars applying Barak’s theory to compare how aspirational levels differ among nations and among the analysis of different texts: constitutions, statutes, contracts, and wills. Thus, Barak is forthright about the place of discretion in legal decision-making, while simultaneously making the case that there are limits on judicial discretion.
Barak discusses the relationship between internal and external factors in court decision making. The fact that judges can move between text and context is an important component of his theory of purposive interpretation. He gives much attention to the importance of social facts and circumstances in purposive interpretation. Barak spends some time discussing the “internal and external,” but when he does so, he emphasizes the search for evidence of purpose inside and outside a text (text and context). The analysis is too judge-centered; it is about urging judges to take into account both subjective and objective intent. It is not about how institutional factors within and without courts structure judicial decision-making.
Thus, we need more clarity as to precisely what role the social, political, and economic world outside a court plays when judges seek to apply precedent and principles when engaging in purposive interpretation. Barak defines “internal” sources of objective purpose narrowly as “the text in its entirety” when seeking to define objective purpose (p.157); external sources include nearby texts, such as other wills, contracts, and statutes; the normative layout in which a text operates; case law and precedent; the general social and historical background that created the text; jurisprudence and legal culture; the basic values of the system that fill the normative universe; and comparative law (pp.159-170). A more precise analysis and theory-building of the relationship of these [*737] external factors to court decision making is needed for the utility of the theory to be tested. (You may wish to see Kahn and Kersch 2006).
Barak is terrific in his analysis of the presence of explicit and implicit rights and polity principles in constitutional interpretation. However, it is not always clear what Barak is arguing in this regard. At one point he asserts that judges must reflect the values that have gone through the pressure cooker of social recognition (p.166); at other places he contends that the search for objective interests requires judges to consider far more than what the majority of people believes. One is not clear as to when social recognition trumps the search for objective purpose, and when it does not. Would a constitutional judge be able to find a right to same-sex marriage under a constitution, if such a right were not socially recognized by the nation politically? Would a judge’s purposive interpretation of objective purpose trump low levels of social recognition to such a right, and under what conditions in specific cases? Barak offers a provocative and original theory of legal interpretation; however, he is very unclear as to how it would play out on the most contentious constitutional questions of the day.
There also is a very useful theme in this book regarding the importance of a text’s age in purposive interpretation. Barak finds that time changes the nature and importance of objective purposes. The book brings to mind interesting questions about why patterns of path dependence may differ among texts within nations, as well as among different nations, but it fails to offer a cogent thesis about the relationship between age of text, judicial decision-making, and political development. However, this book, like all books, should not be expected to have all its themes fully developed. Finally, with regard to law, text, and time, one can ask whether Barak’s theory is too presentist. I say this because he argues that authorial intent declines in importance in the search for a text’s purpose with each passing decade of its existence. Does this mean that the distance from when a text was written, and as objective purpose increasingly trumps subjective purpose, the importance of path dependence in judicial decision making declines? Or can a scholar uncover cycles of path dependence in the judges’ findings of objective purposes in a text?
Aharon Barak has produced a provocative book, which asks us to view legal interpretation and decision making as a distinctive process. He asks us to view it as both bounded and discretionary; he asks us to view it as different from political decision making; he asks us to view it as different from pragmatism, moral theory, originalism, and hermeneutics; he asks us to engage in comparison of law and legal institutions, while searching for a commonality among texts, nations, and legal institutions; and he asks us to consider the role of courts and legal interpretation in democracies. Even though, this is not truly a general theory, because it pertains only to legal interpretation and institutions in democracies, Barak has written a masterful book that will further the quest for a general theory of legal [*738] interpretation. And for this both scholars and practitioners should be thankful.
Finally, scholars, jurists, and the informed public will gain a deeper understanding of Barak’s theory of purposive interpretation, especially with regard to the institutional concerns which face a justice making constitutional choices, by reading his recently published THE JUDGE IN A DEMOCRACY (2006).
Barak, Aharon, 2006. THE JUDGE IN A DEMOCRACY. Princeton, NJ: Princeton University Press.
Goldford, Dennis. 2005. The AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM. New York: Cambridge University Press.
Kahn, Ronald, and Ken I. Kersch. 2006. THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT. Lawrence, KS: University Press of Kansas.
Kahn, Ronald. 2006. “Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, But Not Roe.” In Ronald Kahn and Ken I. Kersch. 2006. THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT. Lawrence, KS: University Press of Kansas.
Kahn, Ronald. 2005. “Why Lawrence v. Texas (2003) Was Not Expected: A Critique of Pragmatic Legalist and Behavioral Explanations of Supreme Court Decision Making.” In H.N. Hirsch (ed). 2005. THE FUTURE OF GAY RIGHTS IN AMERICA. New York: Routledge.
Sunstein, Cass R. 1990. AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE. Cambridge: Harvard University Press.
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 U.S. 833 (1992).
© Copyright 2006 by the author, Ronald Kahn.