What is Statutory Purpose?

Forthcoming in Lisa Burton, Patrick Emerton and Dale Smith (eds), Law under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy, Hart Publishing (2019)

U of Melbourne Legal Studies Research Paper No. 799

35 Pages Posted: 25 Oct 2018

See all articles by Dale Smith

Dale Smith

University of Melbourne - Law School

Date Written: October 25, 2018

Abstract

While there is considerable disagreement about what role statutory purpose should play in the interpretation of legislation, it is widely accepted that purpose has some role to play. This is despite the fact that there is little in the way of agreement about what statutory purpose is. In this paper, to be published in a festschrift in honour of Jeff Goldsworthy, I offer an account of what statutory purpose is. I begin by distinguishing three broad accounts of statutory purpose – the first of which understands it in terms of the intentions of certain legislators, or of the legislature as a whole; the second of which understands it in terms of the intentions that a reasonable legislator would have had if he or she had enacted the statute; and the third of which understands it in terms of the functional role the statute plays within the broader legal system. I contend that each of these accounts faces significant problems.

I then suggest a way of understanding the first approach – which is the approach preferred by Goldsworthy – that overcomes many of those problems. A particular difficulty facing the first approach is in distinguishing statutory purpose from legislative intent. I seek to do so by treating purpose as concerned with what Mark Greenberg has called the legislature’s legal intentions, and by treating legislative intent as concerned with the legislature’s communicative intentions. I then consider whether legal intentions should be understood as directed toward the norm(s) that the statute, or provision, is to contribute to the content of the law (‘norm-intentions’) or toward the state of affairs that the statute is to bring about (‘application-intentions’). While the former suggestion may appear attractive, I argue that we should understand legal intentions in terms of application-intentions. However, the legislature may have multiple application-intentions regarding a single statute, only some of which should count as part of the statute’s purpose. Thus, I go on to suggest some constraints on which of the legislature’s application-intentions count. I finish by addressing the possibility that different legislators have different application-intentions.

Keywords: statutory purpose, statutory interpretation, Jeffrey Goldsworthy, purposivism, legislative intent, Mark Greenberg

JEL Classification: K00, K39

Suggested Citation

Smith, Dale, What is Statutory Purpose? (October 25, 2018). Forthcoming in Lisa Burton, Patrick Emerton and Dale Smith (eds), Law under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy, Hart Publishing (2019); U of Melbourne Legal Studies Research Paper No. 799. Available at SSRN: https://ssrn.com/abstract=3272586

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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