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.
