A CRITIQUE OF PURPOSIVE AND DYNAMIC INTERPRETATION

Abstract

This paper is concentrated on providing a critical assessment of the two predominant theories of interpretation, purposive and dynamic interpretation, which have gained much traction within the circles of jurisprudence. The core assumption upon which the critique is found is that because these theories endorse some form of departure from the text of the legal documents, the courts that embrace them become entitled to reshape the law and by doing so they intervene with the legislative tasks, which are an exclusivity of the legislative branch. Thus, they create some imbalance between the prerogatives that each of these two branches enjoy. The analysis extends to the accuracy and validity of the central pillars for each approach. Regarding purposive interpretation, it is maintained that the concept of the intent of the legislature as a whole is fictitious and that legislative history, contrary to what is generally acknowledged, cannot reflect intent. Also, as a result of compromises between different groups in the parliaments, laws often serve different interests and functions simultaneously, and therefore establishing one purpose in the light of which to interpret them is erroneous. As for the dynamic interpretation, it is contended that it has no guiding principles on how to estimate in which direction has the law evolved and that despite what is emphasized as a benefit, it does not provide flexibility. Furthermore, it is argued that the only w ay to repeal old laws is through the legislative process, not by extending the discretion of the judiciary. The conclusion is that both forms have some implications regarding the separation of powers in democratic systems and also, when applied, generate some degree of subjectiveness and arbitrariness.