What is Purposive Interpretation?

ELTE Law Journal, 2017

This paper aims at giving an overview of the unique methods of constitutional interpretation used by Canadian courts and their special relevance in fundamental rights disputes, especially those examined based on the principle of proportionality. As the Canadian literature and the practice of the Supreme Court of Canada demonstrates, the well-founded, consistently and transparently used methods of legal interpretation and legal argumentation can strengthen each other and lead to justified and acceptable decisions. In the long run, methodological clarity and certainty supports the more effective protection of fundamental rights. The approach of this paper is descriptive. First I will present the origins and particularities of the most influential methods of constitutional interpretation used by Canadian courts, the progressive, the purposive, and the generous interpretation. In the second step, I will present the Canadian form of the proportionality analysis, which, despite its relatively short history, has a significant impact on Comparative Constitutional Law. The hypothesis of this paper is that constitutional interpretation and proportionality reasoning are intertwined. Accordingly, the appropriate and transparent use of these methods in a common framework enhances the convincing nature and justification of judicial decisions. To test this assumption, I will include a case study analysis in this paper by presenting a classic decision, the Alberta v Hutterian Brethren case. No doubt many more cases could be examined; however, the author hopes that this model-analysis convinces the reader that the ‘Canadian approach’ to fundamental rights disputes is worth following.

2011

This paper explores how the notion of distance works in the practice of interpretation by studying the philosophical underpinnings of the originalism debate in american constitutionalism. focusing on some of its most important spokespeople, the paper shows that they start from the historicist presupposition that distance can in principle be overcome by a reconstruction of the original intentions of the framers of the Constitution. With the help of Hans-Georg Gadamer, who explicitly based his philosophical hermeneutics on the notion of distance, this presupposition will be criticized. The paper concludes that the originalist and hermeneuticist positions do not mutually exclude each other, but can be synthesized if they are seen as different questions about the same text. The meaning of the Constitution is therefore not given but is dependent on the direction of the questions asked by the interpreter. from this question-dependency of meaning it follows that interpretation follows the law of acoustics: "angle of incidence equates angle of reflection. "

Fordham Law Review, 2013

Southwestern University Law Review, Vol. 40, p. 617, …, 2011

Ottawa Law Review, 2023

The majority reasons in the Supreme Court of Canada’s decision in Toronto (City) v Ontario appear to suggest that unwritten constitutional principles may not be applied as “independent” means to invalidate legislation. Indeed, some may argue that the majority reasons identify additional, categorical limitations on the application of unwritten constitutional principles. This article argues that that these categorical claims are not supported by the existing jurisprudence. In particular, the article argues that the categorical claims in the majority reasons in Toronto (City) are based on misinterpretations of the existing jurisprudence that, in turn, promote misconceptions about the ways unwritten constitutional principles may be recognized and applied. When these misinterpretations and misconceptions are identified, and dispelled, it is possible to see that the decision in Toronto (City) may be best understood as a response to the use of unwritten constitutional principles to protect overly broad rights claims, rather than a more general, categorical restriction of their normative power. It also becomes apparent that the question of whether unwritten constitutional principles may serve as “independent” limitations on legislation may be misplaced and that an approach based on categorical acceptance or rejection of particular roles for unwritten principles should be eschewed in favour of a more balanced, “sliding-scale” approach to the application of these principles, that weighs different categories of evidence in favour (or against) the application of a particular principle to support a new constitutional right or obligation. Such a sliding scale approach fits well within the Court’s existing jurisprudence.

SSRN Electronic Journal, 2004

In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of less careful or less rigorous judges, moreover, abandoning intent as the central object of interpretation enlarges the range of plausible outcomes, threatening, as a practical matter, to subvert the clarity and stability of constitutional meaning that is central to the constitutionalist enterprise

2021

Article published in the Michigan State University School of Law Student Scholarship Collection.

Law, Morality and Judicial Reasoning Essays on W. J. Waluchow’s Jurisprudence and Constitutional Theory, 2024

This chapter discusses the concept of interpretation in Waluchow’s book A Common Law Theory of Judicial Review: The Living Tree as a standpoint for a reorientation of the idea of charter review. In Waluchow’s argument, the problems usually regarded as inherent to constitutionalism and to the judicial entrenchment of a charter of rights are strongly reoriented as soon as we abandon an image of fundamental rights as fixed limits. The chapter is divided into two parts. The first part presents the conception of interpretation as a conversational model—that is, the idea that interpreters are bound to a plain meaning that has already been given, either by literal comprehension or a conventional reading, and need only be enforced by the interpreter. It then summarizes the methods of interpretation at hand, since this conversational model is acknowledged as correct. In the second part, the chapter presents the non-fixed meaning conception of interpretation and discusses which elements are necessary for it to take place. The chapter concludes by raising some epistemological problems of the common law theory of constitutional interpretation—particularly the fact that it depends on some basic intuitions of the interpreter regarding a community’s constitutional morality.