Interpreting by reference to object and purpose

Teleological interpretation starts from the assumption that legislation is rationally drafted with a certain purpose5_{or that legislation serves as an instrument to achieve}

‘certain legal, social or economic goals’.6_{According to this method, any interpretation}

has to be compatible with this particular purpose.7_{To put it differently: ‘the meaning}

of a legal rule should be established on the basis of the good the rule aims to promote or the evil it seeks to avert.’8_{It means that the consequences of interpreting a legal}

text in a certain way must contribute to the realization of the goals and purposes of this legal text.9 _{Thus, the purpose of a measure provides an interpreter with an}

evaluative basis to prefer one interpretation over another.10_{The question is why this}

legislative purpose should be taken into account. In the light of the division of powers this purpose should play a role when determining the meaning of the text as well. If a judge were to ignore the purpose for which a specific text has been drafted, this judge could be accused of taking the place of the legislator by redesigning the legal text.

This automatically brings up the following question: exactly what purpose should be considered for this type of argument? Should it be the (subjective) purpose of the author of the legislation in question, or a more objective purpose? Different theoretical views have been developed to answer this question and there certainly is not one

5 This is the reason why this method is sometimes referred to as purposive interpretation as well, e.g. Barak (2005). Cueto-Rua (1981), p. 178, draws an analogy between a legislator and a carpenter: both use their tools as an instrument to achieve a certain purpose. See further MacCormick (2005), p. 133-134. He emphasizes that legislation does not accidently come into being; they are the product of legislative decisions’.

6 Feteris (2005), p. 459. See also Barak (2005), p. 220.

7 Even though teleological interpretation encompasses both the object and purpose of a legislative text, when dealing with the question whether a subjective or objective approach should be taken, generally only the purpose is referred to. This might be explained by the fact that the method is sometimes called: purposive interpretation. Alternatively this might be explained by the claim of Buffard & Zemanek, who claim that within traditional teleological interpretation the distinction is superfluous’. Buffard & Zemanek (1998), p. 323. A short discussion, however, on the notion of object and purpose will follow in the next section of this chapter.

8 Feteris (2005), p. 460 paraphrasing Fuller, Positivism and the Fidelity to the Law- A Reply to Professor Hart’, 71Harvard Law Review1958, 630-672.

9 Feteris (2005), p. 460-461; see also MacCormick (2005), p. 134. The latter author considers this interpretation method a manifestation of consequentialist reasoning, which he discusses in his book on legal reasoning. It would stretch beyond the purpose of this thesis to discuss consequentialism here.

10 MacCormick and Summers (1991), p. 514.

Chapter 5

correct answer.11 _{In itself this is already a complicated matter to be dealing with,}

but it is further complicated by the lack of a generally accepted definition of subjective and objective purpose of a piece of legislation. In order to provide a convincing answer to the question posed above, it is therefore necessary to first explain what will be regarded as subjective and objective purpose in the context of this thesis.

Some authors conceive the subjective purpose of a piece of legislation to be the real purpose the author(s) (or drafters) had in mind when creating the text.12 _{It is}

a historical and static fact that cannot really change in time.13 _{Societies, however,}

do develop, therefore situations might occur which were not foreseen by the drafters. In some situations it might be possible to make an educated guess as to what the purpose of the drafters would have been had they taken these developments into account. The term ‘subjective purpose’, however, does not refer to the purpose the author14_{of the legal text would have had if he/she had thought about such a matter.}

This is considered a ‘hypothetical intent’, which is deemed to fall under the scope of the concept of ‘objective purpose’.15 _{This form of hypothetical intent does not}

reflect the true intent of the author of the legal text, because it is a guess about what this author would have intended if certain circumstances would have occurred.16

Only the real purpose or true intent of the author counts as the subjective purpose. The meaning of the notion of ‘subjective intent’, however, is still debated. LINDER-

FALK, for example, appears to regard subjective purpose as a slightly broader concept

than the ‘real purpose’ or ‘true intent’ of the author.17 _{By claiming that it is not}

11 See Barak (2005b), p. 93, for references to some discussions on the question whether the purpose is subjective or objective. MacCormick & Summers (1991), p. 519, also refer to the fact that the question whose purpose should be taken into consideration is a hotly disputed issue.

12 Barak (2005), p. 120, this purpose of the authors includes: the values, objectives, interests, policy, aims and function that the authors sought to realize’. MacCormick and Summers (1991), p. 520. See also: Jonas & Saunders (2010), p. 581.

13 Barak (2005), p. 120.

14 Barak (2005), p. 120 argues that when the author of a legal text is a collective body, the shared purpose or intent of that entity counts and not the purpose or intent of all its individual members. 15 Barak (2005), p. 121.

16 Barak (2005), p. 121, refers to three forms of hypothetical intent. Only the first can, in some circum- stances count as subjective purpose, because in that case it will come as close as possible to the real intent. According to Barak the first sense refers to the situation where the real intent is unknown, but where the hypothetical intent can be established on the basis of the legal community’s life experience. The second way to understand hypothetical intent, is when the author never thought about a certain fact, but if she or he had, then the author would have had this in mind. In this case one should guess at the intent of the author and therefore this cannot be qualified as the subjective purpose. The third way of understanding hypothetical intent is the intent the author would have had as a reasonable person’. Only the first understanding can count as the real intent and thus as the subjective purpose.

17 Linderfalk (2007), p. 205 and 228-229 (footnote 6).

Teleological interpretation

possible to reconstruct the intent of the author with absolute certainty, he also includes a rational reconstruction of the purpose of the original legislator. The fact that the real purpose of the original legislator will sometimes have to be based on a reconstruc- tion of ‘the legal community’s life experience’ is not denied by those who adhere to a strict explanation of the subjective purpose.18_{The question is, however, whether}

according to LINDERFALKa hypothetical reconstruction of the purpose of the original

legislator is also included under the term ‘subjective purpose’, i.e., a reconstruction of what the legislator or drafter would have thought if they had thought about the matter. That is the point where LINDERFALKcould differ from other authors, but it

does not become clear whether that is what he proposes. Thus, in fact it is not possible to say for certain whether LINDERFALKreally adheres to a broader understanding of

the subjective purpose, or whether he just confuses hypothetical (and thus objective) intent and subjective intent. Regardless of this debate, the notion of ‘subjective intent’ will for the purpose of this thesis be considered to be the purpose the original author had in mind when drafting the treaty. Even though this may be a reconstruction of the actual purpose, a hypothetical intent will not be included under the concept of ‘subjective purpose’.

It might be interesting to note that some scholars have claimed that the subjective purpose of the author at the time of creating the legislation does not form part of the teleological method of interpretation, since they only consider the objective purpose to be relevant for teleological interpretation.19 _{This does not necessarily mean that}

the purpose the original lawmaker had in mind cannot play any role in the interpreta- tion process at all. In the context of the Vienna Convention reference has been made to three schools of interpretation: the textual school, the subjective school and the teleological school.20 _{The textual school emphasizes the importance of the text in}

treaty interpretation. The subjective school considers the intentions of the parties to be of primary importance. This closely resembles the subjective purpose that has been discussed in the context of this chapter.21 _{The teleological school only refers to the}

objective purpose as discussed below, and considers the subjective intent to be irrelevant to teleological interpretation.

The concept of objective purpose has been described by many to constitute the intent of the ‘reasonable author’22 _{or an ‘ideally rational author’}23 _{of a legal text.}

ALEXYconsiders objective teleological arguments to be based on ‘rational aims or

18 See Barak (2005), p. 121.

19 Smith (2005), p. 152. Jacobs makes the same distinction. Jacobs (1969), p. 303. 20 See, among others, Shaw (2008), p. 932-933; Vanneste (2010), p. 221-225.

21 Vanneste (2010), p. 223, indeed argues that this method has a strong teleological component. 22 Barak (2005), p. 148.

23 MacCormick & Summers (1991), p. 520.

Chapter 5

on objectively prescribed aims in the framework of the valid legal order’.24 _BARAK

adds that the objective purpose reflects ‘the need of society’ and is an ‘expression of a social ideal’.25_{It is clear that the objective purpose is thus ‘disassociated from}

the original lawmaker’.26_{The objective purpose is, however, not disassociated from}

the text of the treaty to be interpreted; in fact the objective purpose can only be achieved if the text allows this.27

The preference for one of the two different concepts of purpose depends on one’s view of the importance of each of these concepts. One’s view on the importance again depends on one’s position in the theoretical debate on the proper role of the judge in the legal order.28 _{In general one could say that in a view where the subjective}

intention prevails, the role of the judge in the interpretation process is rather narrow. By using the intention of the author of the text in determining the meaning of a certain term the judge has to respect the role of the original legislator and supposedly limit its own discretion.29 _{This prevents a judge from becoming too activist. Adherents}

of the more objective component of teleological interpretation have a different per- ception of the role of the judge. They allow a judge to establish what a rational lawmaker would consider the purpose to be, which might have even changed over time, as will be discussed below. The judge in this view is thus granted much more discretion to establish the object and purpose in comparison to a judge who is only allowed to determine the purpose the original lawmaker had in mind.30

The preference for either the subjective or the objective purpose also depends on the type of legislative text that needs to be interpreted. BARAK holds that in

constitutional interpretation the objective purpose should prevail.31_{While the focus}

of this thesis is on supranational treaties, this statement has some relevance, since the European Convention and the EU treaties are sometimes considered to contain constitutional elements.32_L

INDERFALK, on the other hand, in discussing teleological

interpretation of treaties, claims that in treaty interpretation only the subjective purpose should be taken into account, because of the specific role of the treaty parties in

24 Alexy (1989), p. 241. 25 Barak (2005), p. 148. 26 Linderfalk (2007), p. 228-229. 27 Barak (2005), p. 148.

28 For a good overview see Barak (2005), p. 221 et seq.

29 The term supposedly is used sinceDworkinhas shown that this method leaves a lot of implications to be made by the judge. Dworkin (1986), ch. 9.

30 See also Vanneste (2010), p. 225. 31 Barak (2005), p. 96.

32 See for example Helfer (2003), p. 199-201 where he discusses the constitutional character of the European Union. On the ECtHR see Gerards (2009), p. 409-412, with further references.

Teleological interpretation

international law.33_{A different position has been taken by BERNHARDT, who focuses}

on the interpretation of international human rights treaties. In his view this type of treaties requires an objective teleological approach, due to their special character.34

The question is which position is most relevant for the treaties that the CJEU and ECtHR are supposed to interpret when dealing with fundamental rights. This is, however, a matter that cannot be determined on a general basis for both legal orders at the same time. Therefore the relation between the subjective and objective purpose will be discussed below, when dealing with both legal orders separately (see sec- tion 5.2).