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07/19/2022

Jacob Weinrib: What is Purposive Interpretation?
Michael Ramsey

Jacob Weinrib (Queen's University) has posted What is Purposive Interpretation? (University of Toronto Law Journal (forthcoming 2023) (39 pages) on SSRN.  Here is the abstract:

Purposive interpretation leads a double life. As a matter of constitutional practice, it forms the doctrine through which courts in Canada and around the world determine the concrete protections that abstract constitutional rights afford. However, as a matter of constitutional theory, purposive interpretation is routinely rejected as either an empty phrase that offers no alternative to established theories of constitutional interpretation or a dangerous doctrine that provides no basis for distinguishing between justified and unjustified interpretations of constitutional rights. This essay formulates a conception of purposive interpretation that is not vulnerable to these objections. The purposive approach to the interpretation of constitutional rights follows from a set of ideas about how legal interpretation differs from interpretation more broadly, how constitutional interpretation differs from interpretation in other legal domains, and how constitutional interpretation constrains both the purposes it attributes to particular provisions and the application of those purposes to particular contexts. My aim is to show that these ideas fit together in a coherent doctrinal whole that is neither empty nor dangerous. Purposive interpretation is not empty because it offers a genuine alternative to the presuppositions and structure of opposing interpretive paradigms. Purposive interpretation is not dangerous because it provides a principled set of resources for distinguishing between justified and unjustified interpretations.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended."

My view is that there is good and bad purposivism.  On the good side, one can reasonably ask: what specifically were the enactors trying to accomplish with the enactment?  That can then be used to resolve textualist ambiguities (if you are a textualist) or even to depart from the text in a way that still tries to preserve the original design of the enactment (if you are a nontextualist originalist).  Both of the these are entirely consist with originalism, albeit different forms.  But there's also a bad side, where the interpreter posits a very broad purpose and then asks how (in the interpreter's view) best, given modern circumstances, to accomplish that purpose, irrespective of what the enactors actually did or thought.  The latter approach is not originalism, and I'd say it's not really true purposivism either -- it's really just imposing the interpreter's own policy views.