Purposive Interpretation in Law

Author: Aharon Barak

Publisher: Princeton University Press

ISBN: 1400841267

Category: Law

Page: 448

View: 7100

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This book presents a comprehensive theory of legal interpretation, by a leading judge and legal theorist. Currently, legal philosophers and jurists apply different theories of interpretation to constitutions, statutes, rules, wills, and contracts. Aharon Barak argues that an alternative approach--purposive interpretation--allows jurists and scholars to approach all legal texts in a similar manner while remaining sensitive to the important differences. Moreover, regardless of whether purposive interpretation amounts to a unifying theory, it would still be superior to other methods of interpretation in tackling each kind of text separately. Barak explains purposive interpretation as follows: All legal interpretation must start by establishing a range of semantic meanings for a given text, from which the legal meaning is then drawn. In purposive interpretation, the text's "purpose" is the criterion for establishing which of the semantic meanings yields the legal meaning. Establishing the ultimate purpose--and thus the legal meaning--depends on the relationship between the subjective and objective purposes; that is, between the original intent of the text's author and the intent of a reasonable author and of the legal system at the time of interpretation. This is easy to establish when the subjective and objective purposes coincide. But when they don't, the relative weight given to each purpose depends on the nature of the text. For example, subjective purpose is given substantial weight in interpreting a will; objective purpose, in interpreting a constitution. Barak develops this theory with masterful scholarship and close attention to its practical application. Throughout, he contrasts his approach with that of textualists and neotextualists such as Antonin Scalia, pragmatists such as Richard Posner, and legal philosophers such as Ronald Dworkin. This book represents a profoundly important contribution to legal scholarship and a major alternative to interpretive approaches advanced by other leading figures in the judicial world.

Purposive Interpretation in Law

Author: Aharon Barak

Publisher: Princeton University Press

ISBN: 0691133743

Category: Law

Page: 448

View: 9163

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This book presents a comprehensive theory of legal interpretation which allows all legal texts to be approached in a similar manne, while remaining sensitive to their important differences.

Purposive Interpretation in Law

Author: Aharon Barak

Publisher: Princeton University Press

ISBN: 9780691120072

Category: Law

Page: 423

View: 1755

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This book presents a comprehensive theory of legal interpretation, by a leading judge and legal theorist. Currently, legal philosophers and jurists apply different theories of interpretation to constitutions, statutes, rules, wills, and contracts. Aharon Barak argues that an alternative approach--purposive interpretation--allows jurists and scholars to approach all legal texts in a similar manner while remaining sensitive to the important differences. Moreover, regardless of whether purposive interpretation amounts to a unifying theory, it would still be superior to other methods of interpretation in tackling each kind of text separately. Barak explains purposive interpretation as follows: All legal interpretation must start by establishing a range of semantic meanings for a given text, from which the legal meaning is then drawn. In purposive interpretation, the text's "purpose" is the criterion for establishing which of the semantic meanings yields the legal meaning. Establishing the ultimate purpose--and thus the legal meaning--depends on the relationship between the subjective and objective purposes; that is, between the original intent of the text's author and the intent of a reasonable author and of the legal system at the time of interpretation. This is easy to establish when the subjective and objective purposes coincide. But when they don't, the relative weight given to each purpose depends on the nature of the text. For example, subjective purpose is given substantial weight in interpreting a will; objective purpose, in interpreting a constitution. Barak develops this theory with masterful scholarship and close attention to its practical application. Throughout, he contrasts his approach with that of textualists and neotextualists such as Antonin Scalia, pragmatists such as Richard Posner, and legal philosophers such as Ronald Dworkin. This book represents a profoundly important contribution to legal scholarship and a major alternative to interpretive approaches advanced by other leading figures in the judicial world.

A Purposive Approach to Labour Law

Author: Guy Davidov

Publisher: Oxford University Press

ISBN: 0191076848

Category: Law

Page: 270

View: 2656

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The mismatch between goals and means is a major cause of crisis in labour law. The regulations that we use - the legal instruments and techniques - are no longer in sync with the goals they are supposed to advance. This mismatch leads to a problem of coverage, where many workers who need the protection of labour law are not covered by it, as well as a problem of obsoleteness, as labour laws are not sufficiently updated in light of dramatic changes in the labour market. Adopting a purposive approach to interpretation and legislative reform, this volume addresses this crisis of mismatch. It first articulates the goals of labour law, both general and specific, through an in-depth normative discussion and a consideration of critiques. The book then proceeds to reconsider our means, asking what we need to change or improve in the laws themselves in order to better advance the goals. Some of the proposed solutions are at the level of judicial interpretation, others at the legislative level. The book offers several examples for the way a purposive analysis should be performed in concrete cases. It also recommends institutional structures that are suited to ongoing adaptation of the law to ensure that our goals are advanced even when circumstances frequently change. Finally, in response to the crisis of enforcement in this field, which frustrates the achievement of labour law's goals, several proposals to improve compliance and enforcement are considered.

The Judge in a Democracy

Author: Aharon Barak

Publisher: Princeton University Press

ISBN: 1400827043

Category: Law

Page: 368

View: 7003

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Whether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book. In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy. Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia. As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.

Statutes in Court

The History and Theory of Statutory Interpretation

Author: William D. Popkin

Publisher: Duke University Press

ISBN: 9780822323280

Category: Law

Page: 340

View: 7122

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A history of the discretion accorded U.S. judges in interpreting legislation (from the Revolution to the present), culminating in the author’s own theory of the proper scope of judicial discretion.

Elements of Legislation

Author: Neil Duxbury

Publisher: Cambridge University Press

ISBN: 1107021871

Category: Law

Page: 249

View: 7297

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Neil Duxbury combines analytical legal philosophy and legal history to explore the concept of legislation.

Statutory Interpretation

Author: Ruth Sullivan

Publisher: N.A

ISBN: 9781552211380

Category: Law

Page: 347

View: 6253

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The book's primary focus is on the techniques and reasoning used by lawyers and judges to resolve interpretation problems. The book deciphers the often confusing rules of interpretation, explains the way these rules relate to each other, and focuses on the strategic use of the rules in constructing arguments and justifying outcomes.

Judging Statutes

Author: Robert A. Katzmann

Publisher: Oxford University Press

ISBN: 0199362157

Category: Law

Page: 256

View: 2992

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In an ideal world, the laws of Congress--known as federal statutes--would always be clearly worded and easily understood by the judges tasked with interpreting them. But many laws feature ambiguous or even contradictory wording. How, then, should judges divine their meaning? Should they stick only to the text? To what degree, if any, should they consult aids beyond the statutes themselves? Are the purposes of lawmakers in writing law relevant? Some judges, such as Supreme Court Justice Antonin Scalia, believe courts should look to the language of the statute and virtually nothing else. Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit respectfully disagrees. In Judging Statutes, Katzmann, who is a trained political scientist as well as a judge, argues that our constitutional system charges Congress with enacting laws; therefore, how Congress makes its purposes known through both the laws themselves and reliable accompanying materials should be respected. He looks at how the American government works, including how laws come to be and how various agencies construe legislation. He then explains the judicial process of interpreting and applying these laws through the demonstration of two interpretative approaches, purposivism (focusing on the purpose of a law) and textualism (focusing solely on the text of the written law). Katzmann draws from his experience to show how this process plays out in the real world, and concludes with some suggestions to promote understanding between the courts and Congress. When courts interpret the laws of Congress, they should be mindful of how Congress actually functions, how lawmakers signal the meaning of statutes, and what those legislators expect of courts construing their laws. The legislative record behind a law is in truth part of its foundation, and therefore merits consideration.

Statute Law in New Zealand

Author: John Frederick Burrows,Ross I. Carter

Publisher: N.A

ISBN: 9780408719230

Category: Law

Page: 670

View: 2535

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Statute Law in New Zealand, 4th edition, provides a clear and comprehensive guide to statutory interpretation, preparation and drafting. It includes discussion of the Treaty of Waitangi and the New Zealand Bill of Rights Act 1990 and covers the developments in New Zealand statute law over the last six years.

Understanding Common Law Legislation

Drafting and Interpretation

Author: F. A. R. Bennion

Publisher: OUP Oxford

ISBN: 0191024481

Category: Law

Page: 256

View: 7854

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Many countries use and apply the common law. The common law world largely operates through statutes enacted by a country's democratic legislature. These statutes are drafted and interpreted according to a uniform system of rules, presumptions, principles and canons evolved over centuries by common law judges. In this book, Francis Bennion distills forty years of his prolific writings on statute law and statutory interpretation to provide valuable guidance on statutory interpretation applicable to all common law jurisdictions.

The Theory and Practice of Statutory Interpretation

Author: Frank B. Cross

Publisher: Stanford University Press

ISBN: 9780804769815

Category: Law

Page: 248

View: 3437

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Today, statutes make up the bulk of the relevant law heard in federal courts and arguably represent the most important source of American law. The proper means of judicial interpretation of those statutes have been the subject of great attention and dispute over the years. This book provides new insights into the theory and practice of statutory interpretation by courts. Cross offers the first comprehensive analysis of statutory interpretation and includes extensive empirical evidence of Supreme Court practice. He offers a thorough review of the active disputes over the appropriate approaches to statutory interpretations, namely whether courts should rely exclusively on the text or also examine the legislative history. The book then considers the use of these approaches by the justices of the recent Rehnquist Court and the degree to which they were applied by the justices, either sincerely or in pursuit of an ideological agenda.

Treaty Interpretation

Author: Richard Gardiner

Publisher: OUP Oxford

ISBN: 0191648043

Category: Law

Page: 544

View: 5068

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The rules of treaty interpretation codified in the 'Vienna Convention on the Law of Treaties' now apply to virtually all treaties, in an international context as well as within national legal systems, where treaties have an impact on a large and growing range of matters. The rules of treaty interpretation differ somewhat from typical rules for interpreting legal instruments and legislation within national legal systems. Lawyers, administrators, diplomats, and officials at international organisations are increasingly likely to encounter issues of treaty interpretation which require not only knowledge of the relevant rules of interpretation, but also how these rules have been, and are to be, applied in practice. Since the codified rules of treaty interpretation came into decree, there is a considerable body of case-law on their application. This case-law, combined with the history and analysis of the rules of treaty interpretation, provides a basis for understanding this most important task in the application of treaties internationally and within national systems of law. Any lawyer who ever has to consider international matters, and increasingly any lawyer whose work involves domestic legislation with any international connection, is at risk nowadays of encountering a treaty provision which requires interpretation, whether the treaty provision is explicitly in issue or is the source of the relevant domestic legislation. This fully updated new edition features case law from a broader range of jurisdictions, and an account of the work of the International Law Commission in its relation to interpretative declarations. This book provides a guide to interpreting treaties properly in accordance with the modern rules.

Misreading Law, Misreading Democracy

Author: Victoria Nourse

Publisher: Harvard University Press

ISBN: 0674971418

Category: Law

Page: 259

View: 3774

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Victoria Nourse argues that lawyers must be educated on the basic procedures that define how Congress operates today. Lawmaking creates winners and losers. If lawyers and judges do not understand this, they may embrace the meanings of those who opposed legislation, turning legislative losers into judicial winners and standing democracy on its head.

The Nature of Legislative Intent

Author: Richard Ekins

Publisher: Oxford University Press

ISBN: 0199646996

Category: Law

Page: 303

View: 7981

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The idea of legislative intent plays a central role in legal interpretation and constitutional theory, yet is repeatedly challenged as being an illusion. Refuting these challenges, this book develops a robust account of how and why legislatures form intentions, and the importance of these intentions to understanding law and parliamentary democracy.

The Charter of Rights and Freedoms

Author: Robert J. Sharpe,Kent Roach

Publisher: Essentials of Canadian Law

ISBN: 9781552214466

Category: Law

Page: 518

View: 1704

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"This book attempts to provide an accessible account of the Charter of Rights and Freedoms for law students and lawyers as well as non-specialist readers interested in acquiring a basic understanding of the Canadian legal system and the Canadian constitution. We will survey the manner in which the Canadian courts have come to terms with a constitutionally entrenched bill of rights, focusing on the decisions of the Supreme Court of Canada. The purpose is to explain the Charter, its interpretation by the courts, and its practical application, rather than to present anything approaching a theoretical or philosophical account of Charter rights. It is, however, almost impossible to discuss the Charter without a theoretical framework. As will become apparent, we are believers in the Charter and in the important role it confers upon the courts. In our view, the courts are properly charged with the task of defining and protecting fundamental rights and freedoms in a modern liberal democracy. Furthermore, the Canadian experience to date suggests that an entrenched bill of rights enhances rather than detracts from fundamental democratic values."--Résumé de l'éditeur.

Human Dignity

The Constitutional Value and the Constitutional Right

Author: Aharon Barak

Publisher: Cambridge University Press

ISBN: 1316240983

Category: Political Science

Page: N.A

View: 8676

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Human dignity is now a central feature of many modern constitutions and international documents. As a constitutional value, human dignity involves a person's free will, autonomy, and ability to write a life story within the framework of society. As a constitutional right, it gives full expression to the value of human dignity, subject to the specific demands of constitutional architecture. This analytical study of human dignity as both a constitutional value and a constitutional right adopts a legal-interpretive perspective. It explores the sources of human dignity as a legal concept, its role in constitutional documents, its content, and its scope. The analysis is augmented by examples from comparative legal experience, including chapters devoted to the role of human dignity in American, Canadian, German, South African, and Israeli constitutional law.

Proportionality

Constitutional Rights and their Limitations

Author: Aharon Barak

Publisher: Cambridge University Press

ISBN: 9781107401198

Category: Law

Page: 638

View: 7085

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Having identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.