The purposive approach (sometimes referred to as purposivism, purposive construction,<ref>Bourchard, Ron A. Living Separate and Apart is Never Easy: Inventive Capacity of the PHOSITA as the Tie that Binds Obviousness and Inventiveness in Pharmaceutical Litigation'. University of Ottawa Law & Technology Journal, January 2007 (Canada)</ref> purposive interpretation, or the modern principle in construction) is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (a statute, part of a statute, or a clause of a constitution) within the context of the law's purpose.
Purposive interpretation is a derivation of mischief rule set in Heydon's Case, and intended to replace the mischief rule, the plain meaning rule and the golden rule. Purposive interpretation is used when the courts use extraneous materials from the pre-enactment phase of legislation, including early drafts, hansards, committee reports, and white papers. The purposive interpretation involves a rejection of the exclusionary rule.
Israeli jurist Aharon Barak views purposive interpretation as a legal construction that combines subjective and objective elements. Barak states that the subjective elements include the intention of the author of the text, whereas the objective elements include the intent of the reasonable author and the legal system's fundamental values.
Critics of purposivism argue it fails to separate the powers between the legislator and the judiciary, as it allows more freedom in interpretation by way of extraneous materials in interpreting the law.
Historical origins
Plain meaning rule
The plain meaning rule gained popularity during the 18th and 19th centuries as the courts took an increasingly strict view of the words within statutes. Under the plain meaning rule, courts give the words of a statute their natural or ordinary meaning. The plain meaning rule of statutory interpretation should be the first rule applied by judges.
One of the leading statements of the plain meaning rule was made by Chief Justice Nicholas Conyngham Tindal in the Sussex Peerage case (1844), concerning whether Augustus d'Este succeeded to the titles of his father Prince Augustus Frederick, Duke of Sussex, and in particular, whether the marriage of his father and mother was valid under the Royal Marriages Act 1772:
A strict application of the plain meaning rule can sometimes result in "absurd" outcomes. Examples of the plain meaning rule producing absurd outcomes can be seen in the following cases:
In Whitely v Chappel (1868), a statute made it an offence "to impersonate any person entitled to vote". The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living to be entitled to vote. The plain meaning rule was applied, and the defendant was thus acquitted. In R v Harris (1836), the defendant had bitten off his victim's nose. Nevertheless, because the statute made it an offence "to stab cut or wound", the court held that under the plain meaning rule, the act of biting did not come within the meaning of stab cut or wound as these words implied an instrument had to be used. The court overturned the defendant's conviction. In Fisher v Bell (1961), the Restriction of Offensive Weapons Act 1958 made it an offence to "offer for sale" an offensive weapon. The defendant had a flick knife displayed in his shop window with a price tag on it. The statute made it a criminal offence to "offer" such flick knives for sale. The court overturned his conviction because the display of goods in a shop is not an "offer" in the technical sense but an invitation to treat. The court applied the plain meaning rule of statutory interpretation.
Golden rule
The golden rule permits the courts to depart from the plain meaning rule if the meaning leads to consequences it considers to be absurd or ambiguous. This was propounded in Grey v Pearson(1857) where Lord Wensleydale stated
The degree of absurdity or ambiguity necessary to exercise the golden rule is determined on a case-by-case basis by the individual judge in question. There are two general situations in which the golden rule may be employed: narrowly, to take the 'better' reading of two alternatives, or more widely, to broaden a rule that, although unambiguous, leads to an absurd outcome.
