Criticisms of orginalist methods of statutory interpretation

Excerpt from Thinking Like a Lawyer by Kenneth J.Vandevelde. criticism of intentionalism and purposivism in interpretation of statutes at page 162

“Intentionalism is the theory that a statute should be interpreted so as to further the intent of the drafters, and it permits examining the history of the statute, including statements of the legislators, to discern that intent. Intentionalism, in other words, seeks to look beyond the text of the statute to ascertain intent.”

In Singapore, the process of statutory interpretation allows for a method resembling intentionalism. The method is called purposive interpretation enshrined under section 9A of the Interpretation Act which allows for reference to parliamentary readings at the second motion of the Bill to obtain the intention of the Minister moving the Bill.

“Intentionalism is subject to a number of criticisms. First, the record may be silent because the issue was not anticipated (and thus the drafters had no intent with respect to it) or because the only way to obtain a consensus was to remain deliberately vague about the statute’s intended effect. Some legislators may have had no intent at all, only motives, such as getting reelected or repaying a favor from another legislator. Other legislators may have voted for a law that they opposed, hoping to avoid enactment of a more extreme measure or, if this law was the extreme measure, hoping to prompt a popular backlash or constitutional challenge that a less extreme measure would not have triggered. The history will be partial, because complete records of every relevant incident leading to enactment of the law will certainly not exist. It may be misleading, because some expressions of legislative intent may have represented the position of only a few of those voting on the statute or because legislators opposed to the legislation may have engaged in strategic behavior, inserting comments in the record, hoping to influence later interpretations of the statute inconsistent with the intent of the supporters. And, of course, under even ideal circumstances, all historical accounts are shaped by the perspective of the historian. The problem of inferring intent is compounded by the fact that the statute probably was a compromise among conflicting interests and thus among competing intents”

Indeed, one of the problem of the method of intentionalism in statutory interpretation that I have encountered as a law student is that the parliamentary reading frequently provide no aid in curing the ambiguity of the statute because the Minister says nothing pertaining the issue that is to be resolved. It is doubtful whether the Minister had conceived of the possibility of the statute resulting in the ambiguity.

“Because of these difficulties, some instrumentalists proposed a purposivist theory of interpretation in which a law is interpreted so as to promote its ostensible purpose. Purposivism is distinguished from intentionalism in that purposivism avoids inquiry into the minds of the drafters and looks at the apparent object of the law. For example, the purposivist may ask simply what the mischief was that existed when the law was adopted, on the assumption that the purpose of the law was to remedy the mischief. In a sense, purposivism is an objectivist theory of intent, whereas intentionalism is a subjectivist theory. The purposivist eschews all the difficult empirical questions that arise concerning the actual thoughts of the legislators and looks simply at the language and setting of the law to determine the purpose it appears to serve.”

Although this book which is written by a American Professor has called this approach purposivism, it is conceptually different from what Singapore legal professional has called as the purposive approach which I have mentioned above. In the English commonwealth common law countries, this approach is described as being a canon of statutory interpretation, namely the mischief rule. Essentially, it serve the same purpose as this purposivism approach that has been mentioned by Professor J.Vandevelde/

“Purposivism, too, has been subject to criticism. By divorcing interpretation from the actual intent of the framers, purposivism seems to license the interpreter to infer almost any purpose that can be reconciled with the language of the statute. Moreover, the broader the range of circumstances from which the interpreter may infer purpose, the less constraining purposivist interpretation is. At the same time, if purposivism seeks to constrain interpretation by limiting the range of circumstances from which the purpose may be inferred to the text of the law, then purposivism seems to add very little to textualism. That is, under a text-bound version of purposivism, the interpreter will infer that the purpose of the statute is to do whatever it is that the statute appears to do. Determining what the statue does, however, is the very issue to be resolved. Thus, in using the language of the statute to determine its purpose, one ends where one began: with the language of the statute.

Purposivism is also flawed in its assumption that a law has a single purpose or a set of consistent purposes. In fact, statutes represent compromises among multiple conflicting purposes. In applying a statute, a court must decide which of these purposes to further at the expense of the others. Given that the statute was drafted, however, so as to accomplish all of the purposes in some measure, the court has no basis on which to decide to what extent one of the purposes shall prevail over the others in future applications of the statute to unforeseen circumstances.”