<abstract xmlns="http://www.w3.org/1999/xhtml"><p>Political jurisprudence points out that constitutional court judges sometimes act like political actors, and that their decisions are a function of strategic and ideological as much as legal considerations. Consequently, the proper role of the courts, notably in exercising their review of constitutionality, has been one of the most debated issues in modern political and legal theory. Part of the controversy is also how to measure the interpretative fidelity of judges to the constitutional texts, or conversely, the level of their political engagement. This paper argues for the reconsideration of Aharon Barak’s <italic>Purposive Interpretation in Law</italic> in that light. Barak’s work was intended to provide, in the first place, judges and other lawyers with a sort of judicial philosophy – a holistic system of legal reasoning, applying both to the interpretation of will, contract, statute and constitution. Nevertheless, these conventions of legal reasoning, modified and readapted, could well be used also as heuristic tools by the academics in measuring the interpretative fidelity of judges to various sources of law. Accordingly, this paper clings closely to the presentation of Barak’s precepts for the purposive interpretation of constitutions, by focusing on the notions of subjective and objective purpose in interpreting constitutions, and how the potential conflicts between these purposes are resolved.</p></abstract>

Political jurisprudence points out that constitutional court judges sometimes act like political actors, and that their decisions are a function of strategic and ideological as much as legal considerations. Consequently, the proper role of the courts, notably in exercising their review of constitutionality, has been one of the most debated issues in modern political and legal theory. Part of the controversy is also how to measure the interpretative fidelity of judges to the constitutional texts, or conversely, the level of their political engagement. This paper argues for the reconsideration of Aharon Barak’s Purposive Interpretation in Law in that light. Barak’s work was intended to provide, in the first place, judges and other lawyers with a sort of judicial philosophy – a holistic system of legal reasoning, applying both to the interpretation of will, contract, statute and constitution. Nevertheless, these conventions of legal reasoning, modified and readapted, could well be used also as heuristic tools by the academics in measuring the interpretative fidelity of judges to various sources of law. Accordingly, this paper clings closely to the presentation of Barak’s precepts for the purposive interpretation of constitutions, by focusing on the notions of subjective and objective purpose in interpreting constitutions, and how the potential conflicts between these purposes are resolved.

Barak’s Purposive Interpretation in Law as a Pattern of Constitutional Interpretative Fidelity

Baltic Journal of Law & Politics

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Political jurisprudence points out that constitutional court judges sometimes act like political actors, and that their decisions are a function of strategic...

Barak’s Purposive Interpretation in Law as a Pattern of Constitutional Interpretative Fidelity

Published Online: Mar 04, 2017

Page range: 85 - 101

Received: Nov 21, 2016

Accepted: Dec 19, 2016

DOI: https://doi.org/10.1515/bjlp-2016-0013

Keywords
Political jurisprudence, review of constitutionality, judicial self-restraint, judicial activism, purposive interpretation, subjective purpose, objective purpose

© 2016 Tanasije Marinković, published by De Gruyter Open

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Barak’s Purposive Interpretation in Law as a Pattern of Constitutional Interpretative Fidelity

Published Online: Mar 04, 2017

Page range: 85 - 101

Received: Nov 21, 2016

Accepted: Dec 19, 2016

DOI: https://doi.org/10.1515/bjlp-2016-0013

KeywordsPolitical jurisprudence, review of constitutionality, judicial self-restraint, judicial activism, purposive interpretation, subjective purpose, objective purpose

© 2016 Tanasije Marinković, published by De Gruyter Open

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Keywords
Political jurisprudence, review of constitutionality, judicial self-restraint, judicial activism, purposive interpretation, subjective purpose, objective purpose