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Purposive Interpretation in Law, by Aharon Barak
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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.
- Sales Rank: #2006878 in eBooks
- Published on: 2011-10-16
- Released on: 2011-10-16
- Format: Kindle eBook
Review
"One of the most respected judges serving today is Aharon Barak, President of the Supreme Court of Israel. His commitment to the rule of law and constitutional rights, and his encyclopedic knowledge of the history, case law and principles of a wide variety of legal systems, are at the heart of Purposive Interpretation in Law. In this major work of legal philosophy, Barak develops a legal theory to explain how judges should resolve cases which depend on the interpretation of texts, whether contracts, statutes or constitutions."--David Pannick, QC, The Times (London)
"Must reading for social scientists and legal theorists, as well as for jurists and other legal practitioners, who seek to witness the complexities of contemporary judicial decision-making. . . . Barak has written a masterful book that will further the quest for a general theory of legal interpretation. And for this both scholars and practitioners should be thankful."--Ronald Kahn, Law and Politics Book Review
"This book is a must-read for anyone interested in political theory and legal philosophy, but the specific areas of law that Barak so carefully investigates, make it relevant for private, public and comparative law academics and practitioners as well."--AlbertoVespaziani, European Legacy
From the Inside Flap
"This book offers a comprehensive--indeed magisterial--account of and argument for a more or less unified approach to the interpretation of legal items--rules, regulations, statutes, contracts, wills, trusts, and constitutions. Its thesis is novel and will generate both thought and controversy. That a judge of Aharon Barak's prominence has produced a work of such scholarly depth, jurisprudential insight, and care in research and documentation is itself a major accomplishment."--Frederick Schauer, Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government, Harvard University, author of Playing by the Rules and Profiles, Probabilities, and Stereotypes
"This book provides the carefully worked out and sifted results of concentrated thought by a leading judicial scholar and intellect on a topic of first importance to law. Justice Barak puts his approach, called 'purposive interpretation,' on display in elaborate detail that makes his presentation a formidable one. He is a deeply experienced, eminent judge with a deserved reputation for high intelligence, scholarship, wisdom, and reflectiveness about the work of judging--qualities plainly in evidence here."--Frank I. Michelman, Robert Walmsley University Professor of Law, Harvard University, author of Brennan and Democracy
From the Back Cover
"This book offers a comprehensive--indeed magisterial--account of and argument for a more or less unified approach to the interpretation of legal items--rules, regulations, statutes, contracts, wills, trusts, and constitutions. Its thesis is novel and will generate both thought and controversy. That a judge of Aharon Barak's prominence has produced a work of such scholarly depth, jurisprudential insight, and care in research and documentation is itself a major accomplishment."--Frederick Schauer, Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government, Harvard University, author of Playing by the Rules and Profiles, Probabilities, and Stereotypes
"This book provides the carefully worked out and sifted results of concentrated thought by a leading judicial scholar and intellect on a topic of first importance to law. Justice Barak puts his approach, called 'purposive interpretation,' on display in elaborate detail that makes his presentation a formidable one. He is a deeply experienced, eminent judge with a deserved reputation for high intelligence, scholarship, wisdom, and reflectiveness about the work of judging--qualities plainly in evidence here."--Frank I. Michelman, Robert Walmsley University Professor of Law, Harvard University, author of Brennan and Democracy
Most helpful customer reviews
3 of 3 people found the following review helpful.
outlines various theories of interpretation
By Michael Lewyn
This book discusses judicial interpretation in a variety of contexts: not just interpretation of statutes and constitutions, but also of wills and contracts. Justice Barak suggests that while all interpretation requires consideration of the purpose of a legal document, a document can have many different purposes: a subjective purpose (that is, the author's actual intent), a narrowly defined objective purpose (for example, what a reasonable legislator might consider the legislation's purpose to be), or more broadly defined objective purposes (broader social policies animating the legal system as a whole, or at least the general area of law involved).
Barak believes that different documents require different emphasis: judges interpreting wills and contracts should focus more on an author's subjective purposes, because the purpose of such documents is primarily to give effect to the goals of the individuals who drafted such documents. By contrast, constitutional law should focus more on objective purposes because of the broader social interests at stake.
However, Justice Barak discusses and critiques a wide variety of theories other than his own, and discusses the differences between interpretation and other judicial activity.
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