University of Transnational Business Law

Teleological Argumentation

by Eveline Feteris


I. Introduction

When applying legal rules judges often justify their decision by showing that this decision is instrumental in promoting a certain legal goal or value. From a functional perspective, legal rules can be considered as an instrument to realize certain legal, social and economic goals and values. When applying a legal rule in a concrete situation, a judge can justify this application from the perspective of its instrumental function in relation to such goals and values. He can do this by justifying the interpretation of the rule for the concrete case by means of teleological argumentation in which he shows that the interpretation is coherent with a particular legal goal or value.[1] In legal theory, generally speaking, two different forms of teleological argumentation can be distinguished. When using subjective teleological argumentation the judge justifies the interpretation by referring to the subjective intention of the actual historical legislator. When using objective teleological argumentation he refers to the objective reconstructed intention of a rational legislator. Although teleological argumentation is often used and has an important function in the justification of legal decisions, there are different views as to the question which purposes (subjective or objective) should govern the interpretation process and which material can be used in determining these purposes.
In section II I will first discuss the two forms of teleological argumentation. Then, in section III I will address the role of teleological argumentation in the justification of a legal interpretation. In section IV I will discuss different opinions about the adequacy of the different forms of teleological argumentation from the perspective of the role of the judge in applying the law.
II. Two forms of teleological argumentation

In legal theory two forms of teleological interpretation, subjective and objective teleological interpretation are distinguished.[2] This distinction is based on questions about what kind of goals and purposes should govern the interpretation, which materials can be used in determining the goals or purposes of a legal rule and hence how the interpretation can be justified in an acceptable way.
In a subjective approach of teleological interpretation the aim of interpretation is to find out the actual purpose and intention of the historical legislator.[3] The interpreter tries to find the goals the legislator had in mind when enacting the rule. This amounts to finding out which social interests were to be protected and to what degree the legislator wanted to give these interests priority above other interests. The materials that can be used for determining the purpose in question is restricted to the so-called travaux préparatoires, the discussions in parliament and the written texts accompanying the statute that are produced during discussions about the proposal in parliament, historical background information, legal historical developments and explicitly stated purposes of the legislator in related legal areas.[4]
The most important problem related to the quality of the material that must constitute the justification is that a judge must find sufficient and reliable information about the intentions of the legislator. Problems in this respect are due to the fact that the legislative history is part of a discussion between various political groups with often differing 'intentions' which makes it impossible to reconstruct one clear univocal intention. Often it is difficult to establish who is the subject of the 'will of the legislator' and what exactly is the 'will of the legislator'.[5]
Because the history of a legal rule (consisting of the legislative history, and in common-law systems also consisting of past judicial decisions) is often ambiguous or unclear, the purposes and aims often have to be reconstructed. Further, although the history might be clear, new developments in society that the legislator could not foresee can make it necessary to give the rule a meaning that is in accordance with the actual situation in order to avoid drafting mistakes and over- or under-inclusive interpretations of the law. It is for this reason that advocates of an objective-teleological approach argue that the judge should also be able to articulate the objective goal of a rule by reconstructing the rational ends attributed to an ideal legislator who tries to organize society in a rational way.
In an objective approach the aim of interpretation consists in finding the law's reasonable meaning, the purpose to be imputed to the legislature as an ideally rational legislator. Here the purpose or goal can also be reconstructed by referring to the rational goals or purposes of the rule.[6] On this view, while travaux préparatoires will have a certain value in elucidating the relevant historical and political background, they will have less compelling evidentiary value than in a subjective teleological interpretation. MacCormick and Summers (1991, pp. 522-525) explain that in objective-teleological argumentation judges often refer to values that are considered to belong objectively to the legal order thereby justifying interpretations and decisions which impute to the legislature the intention of upholding fundamental values because of their fundamental character. Judges will also try to reconstruct the purpose by referring to general legal principles and values in relation to the ideal of the legal order as an instrument for ordering society. The idea is to reconstruct the underlying structure of (part of) the legal system by making explicit the basic legal principles and values and their role in the legal ordering of society.
Objective-teleological argumentation is often used to correct a prima facie clear rule if a literal interpretation would lead to an absurd or unreasonable result. Here objective-teleological argumentation becomes part of argumentation referring to absurd consequences (argumentum ad absurdum) or argumentation on the basis of justice. In this context it becomes clear that objective-teleological argumentation is a crucial element in various justification contexts in which a judge uses what MacCormick and Summers (1991, pp. 414-525) call teleological-evaluative argumentation, argumentation in which a judge refers to purposes, principles and values to justify the interpretation of a legal rule. Teleological argumentation here becomes the core of complex forms of justification in which different other forms of argumentation such as linguistic argumentation, systematic argumentation (also including argumentation from analogy and e contrario argumentation), argumentation from consequences, purposes, principles, values and interests are together used for balancing the acceptability and unacceptability of various possible interpretations.
III. The role of teleological argumentation in the justification of the interpretation of a legal rule

As stated above, teleological argumentation is used to justify a teleological interpretation of a legal rule in which a judge establishes the meaning of the rule on the basis of the goal the rule is intended to realize. It is often used when an interpretation based on the literal meaning of the rule (linguistic interpretation) or an interpretation based on the place of the rule within the legal system (systematic interpretation) does not offer an acceptable solution.[7] When giving a teleological interpretation, a judge asks himself the question what the purpose of the rule is. From the perspective of the purpose he establishes how he can given an interpretation that is consistent with this purpose and how he can avoid giving an interpretation which would impede realizing the goal presupposed by the rule and the legal system as a whole.
The rationale for using teleological argumentation in the justification of an interpretation of a legal rule lies in treating legal rules as instruments for realizing certain legal, social and economical goals.[8] As Fuller (1958:665) states it, 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.[9] Legal rules are designed to promote certain values that are considered essential from the perspective of justice or the public good. [10]
Various authors who write about legal theory and legal philosophy such as Bell (1983), Eskridge (1994), Fuller (1948, 1958, 1964), Gottlieb (1968), Larenz (1903), Lyons (1993:41-63, 125-126), MacCormick (2005, p. 132), MacCormick and Summers (1991, pp. 518-519), Nozick (1993, pp. 133 ff), Summers (1978), Wróblewski (1992, pp. 103-107) contend that in the application of legal rules judges should apply and interpret them in such a way that the consequences are conducive to realizing particular goals and values. The purpose so understood forms an evaluative ground for judging the consequences of possible interpretations as favourable or unfavourable for realizing the postulated purpose. An application of a rule that would lead to consequences contrary to its purpose would be undesirable from this perspective. Authors call arguments that refer to the goals or purposes of a legal rule different names such as contextual arguments, functional arguments, goal reasons, arguments from intention, policy arguments, arguments from purpose, substantive arguments, teleological arguments. The common 'core' of all these forms of argumentation is that they rely on the purpose or goal of the rule as an instrument to promote a certain legal, social or economic value that is considered essential from the perspective of justice or the public good.
In their international research project on the use of different methods of statutory interpretation MacCormick and Summers (1991, pp. 514-525) conclude that teleological-evaluative argumentation referring to goals and values is an important form of argumentation. It can be considered a sound justification in situations in which the meaning of the statute cannot be established in an acceptable way on the basis of a linguistic or systematic interpretation. For this reason, teleological arguments often have a crucial role in the justification as the 'ultimate' argument in the sense that they offer the decisive reason in a weighing or balancing of arguments that point in opposite directions.
In this role as an 'ultimate' argument objective-teleological argumentation can have two different functions. First, teleological-evaluative argumentation can be used as an argument to justify a choice between two competing interpretations that are both justified from the perspective of the meaning of the rule or from the perspective of the legal system. As such the teleological argument functions as an 'outweighing' argument that supports a preference for one alternative. Second, it can be used to correct the meaning of a prima facie.[11] According to MacCormick (2005, p. 133) ‘relatively less ‘plain’ or ‘obvious’ interpretations of terms can be supported by reference to the injustice entailed by practical implications of an alternative interpretation’. As such the teleological argument functions as a 'cancelling' argument that may nullify the justificatory force of other arguments such as linguistic arguments. Regarding this last function as an argument for making an exception to a legal rule or broadening the area of application of a legal rule there is a difference of opinion as to how far a judge may go in reformulating the content of a legal rule. clear rule if its literal application would have absurd results inconsistent with the goal of the rule. Here the claim would be that the legislator would not have meant the rule to apply to the present case if he had foreseen it.
IV. The soundness of the two forms of teleological argumentation from the perspective of the role of the judge in the application of law

There are different views regarding the soundness of the different forms of teleological argumentation. These diverging views are based on the different stances to the role of the judge in the application of law.[12] Scholars adhering to a more static approach regarding the application of law contend that, from the perspective of legal certainty, only subjective-teleological arguments can be considered as a sound justification. Scholars adhering to a more dynamic approach regarding the application of law consider it the task of the judge to apply and interpret the law in such a way that it takes into account the goals and fundamental values of the law and therefore should also be allowed to use objective-teleological argumentation.
In a static approach a judge should limit himself to establishing the meaning of the rule in cases in which its meaning in the present case is not clear and other methods of interpretation such as a linguistic or systematic interpretation do not offer a satisfactory solution. From this perspective, teleological argumentation can only be used as an additional 'outweighing' argument to support a choice between two other possible interpretations based on other methods of interpretation.
In a dynamic approach a judge is allowed to also implement a legal rule in a specific way by making it more concrete, by supplementing an exception or by correcting it in such a way that the content of the rule for the present case is made coherent with the goals and values of the legal system. Judges often use this form of objective-teleological argumentation when there is a need to broaden or narrow the scope of a legal rule to evade an unacceptable or absurd result in a concrete case that would be unacceptable from the perspective of the law.[13] The claim in this case is, as Dworkin (1986, 19) states when discussing the famous Riggs v. Palmer case, that 'a statute does not have any consequence the legislators would have rejected if they had contemplated it'.
The burden of proof and problems related to the quality of the supporting argumentation differ in the two situations. With respect to subjective-teleological argumentation the judge will have to provide sufficient and reliable information about the intentions of the legislator. With respect to objective-teleological argumentation the judge will have to explain that a literal interpretation would lead to absurd results and why these results would be unacceptable from the perspective of the legal system. He will have to account for the underlying reasons that make it necessary to limit or broaden the scope of the rule for the present case to make it coherent with the objective purpose of the rule. He can do this by identifying the good rule was intended to promote or the evil it was intended to avert. The discretionary space a judge takes in this second approach obliges him to account for the fact that he has used this space in a reasonable and legitimate way.
Bibliography

Alexy, R. (1989). A theory of legal argumentation. The theory of rational discourse as theory of legal justification. Oxford: Clarendon Press. (Translation of Theorie der juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung. Frankfurt a.M.: Suhrkamp, 1978).

Alexy, R. (1991). 'Statutory interpretation in the Federal Republic of Germany'. In: MacCormick & Summers, pp. 73-122.

Atiyah, P.S., R.S. Summers (1991). Form and substance in Anglo-American law. A comparative study of legal reasoning, legal theory, and legal institutions. Oxford: Clarendon Press. (first edition 1987)

Bell, J. (1983). Policy arguments in judicial decisions. Oxford: Clarendon Press.

Dworkin, R. (1986). Law's empire. London: Fontana.

Eskridge, W.N. (1994). Dynamic statutory interpretation. Cambridge, MA: Harvard University Press.

Feteris, E.T. (2006). 'The rational reconstruction of argumentation referring to consequences and purposes in the application of legal rules: a pragma-dialectical perspective). Argumentation (to appear)

Fuller, L: 1948, 'The case of the Speluncean Explorers' law', Harvard Law Review, Vol. 62.

Fuller, L: 1958, 'Positivism and the fidelity to law - A reply to professor Hart', Harvard Law Review, Vol. 71, pp. 630-672.

Fuller, L. (1964). The morality of law. (Revised edition 1969). New Haven etc.: Yale University Press.

Golding, M.: 1984, Legal reasoning, Knopf, New York.

Gottlieb, G.: 1968, The logic of choice: An investigation of the concepts of rule and rationality, Allen and Unwin, London.

Larenz, K. (1975) Methodenlehre der Rechtswissenschaft. (3rd edition, 1st edition 1903). Berlin etc.: Springer.

Lyons, D. (1993). Moral aspects of legal theory. Essays on law, justice, and political responsibility. Cambridge: Cambridge University Press.

MacCormick, D.N. (1978). Legal reasoning and legal theory. Oxford: Clarendon Press.

MacCormick, D.N. (2005). Rhetoric and the rule of law. A theory of legal reasoning. Oxford: Oxford University Press.

MacCormick, N and R.S. Summers (1991). Interpreting statutes. A comparative study. Aldershot etc.: Dartmouth.

B. McLachlin (2003). ‘Imagining the other: legal rights and diversity in the modern world’. In: A. Aarnio (ed.), The IVR 21st World Congress. Plenary Session Papers. Associations, Vol. 7, nr. 1, pp. 11-22.

Nozick (1993). The nature of rationality. Princeton, NJ: Princeton University Press.

Peczenik, A. (1989). On law and reason. Dordrecht etc.: Kluwer.

Plug, H.J. (2006). 'Reconstructing and evaluating genetic arguments in judicial decisions'. Argumentation. (to appear).

Summers, R.S. (1978). 'Two types of substantive reasons: The core of a theory of Common-Law justification', Cornell Law Review, 63, p. 707-788.

Wróblewski, J. (Edited by Z. Bankowski and N. MacCormick) (1991). The judicial application of law. Dordrecht etc.: Kluwer.
Key references

Alexy, R. (1989). A theory of legal argumentation. The theory of rational discourse as theory of legal justification. Oxford: Clarendon Press. (Translation of Theorie der juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung. Frankfurt a.M.: Suhrkamp, 1978).

Bell, J. (1983). Policy arguments in judicial decisions. Oxford: Clarendon Press.

Eskridge, W.N. (1994). Dynamic statutory interpretation. Cambridge, MA: Harvard University Press.

Feteris, E.T. (2006). 'The rational reconstruction of argumentation referring to consequences and purposes in the application of legal rules: a pragma-dialectical perspective). Argumentation (to appear)

Fuller, L. (1964). The morality of law. (Revised edition 1969). New Haven etc.: Yale University Press.

MacCormick, D.N. (1978). Legal reasoning and legal theory. Oxford: Clarendon Press.

MacCormick, D.N. (2005). Rhetoric and the rule of law. A theory of legal reasoning. Oxford: Oxford University Press.

MacCormick, N and R.S. Summers (1991). Interpreting statutes. A comparative study. Aldershot etc.: Dartmouth.

Peczenik, A. (1989). On law and reason. Dordrecht etc.: Kluwer.

Summers, R.S. (1978). 'Two types of substantive reasons: The core of a theory of Common-Law justification', Cornell Law Review, 63, p. 707-788.

Wróblewski, J. (Edited by Z. Bankowski and N. MacCormick) (1991). The judicial application of law. Dordrecht etc.: Kluwer.
Related entries

Linguistic arguments,  The Argument from Coherence,  genetic arguments,  consequentialist argumentation,  reductio ad absurdum,  argumentation based on legal principles,  practical argumentation,  weighing and balancing in legal argumentation,  Law and Defeasibility,  utilitarianism.
Footnotes

[1]For the use of teleological argumentation in various legal systems in Europe, North America and South America see MacCormick and Summers (1991).

[2]This distinction is introduced by the German legal theorist Larenz (1903). For a revised version of Larenz' book see Larenz (1975, pp. 307-392). See also MacCormick (2005, pp.124 ff.)

[3]Alexy (1989, pp. 236-239) calls subjective-teleological argumentation genetic argumentation.

[4]MacCormick and Summers (1991, pp. 520-521) describe the circumstances under which a subjective-teleological argument is plainly available: where (1) the evidence of ultimate purpose is unambiguous; (2) this purpose is clear from the face of the statute (either explicitly or implicitly); (3) there is no convincing evidence that the legislature deliberately selected implementing language that would be less than fully effective to serve the statutory purpose; and (4) the language is more consistent with the chosen interpretation than with any other interpretation.

[5]For problems with the strategic use of quotations as proof of legislative intention see Plug (2006). MacCormick and Summers (1991, p.520) remark that in the USA there are often conflicting statements of purpose so that there is a broad range of judicial choice.

[6]For reconstructions of the basic structure of objective-teleological argumentation see Alexy (1989, pp. 240-244) and Peczenik (1989:407).

[7]MacCormick and Summers (1991, p. 537) remark that in various legal systems the degree of explicitness with which teleological arguments are stated in judicial opinions as grounds for interpretative conclusions vary. At one end of the spectrum of explicitness we find the French system (least explicit), with that of the USA at the other (most explicit). In some countries teleological interpretation is an accepted method of legal interpretation. For the use of teleological argumentation in different countries see MacCormick and Summers (1991): for Finland (1991, p. 141), France (1991, p.181), Italy (1991, p.228), Sweden (1991, p. 327), the UK (1991, p.370).

[8]For a discussion of functional approaches to the interpretation of law based on the function and purposes of the rule see Wróblewski (1992, pp. 103-113). In the USA, according to functional and dynamic approaches of the application of law found in 20th century legal theory, namely, instrumentalism and legal realism, judges are not bound by the historic formulations of legal statutes and decisions but should look for the goals, the substantive reasons and rationales, of the rules to find a decision for the concrete case. For a discussion of these theories see for example Atiyah and Summers (1991). For a critique of radical instrumentalism see Lyons (1993:41-63).Lyons (1993:48-63) proposes a moderate instrumentalism. For a dynamic approach see Eskridge (1994).

[9]See also Fuller (1964). MacCormick (2005:132-133) argues that, because legislation is a rational and teleological activity and statutes are enacted to remove a defect or suppress a mischief in the law, in establishing their meaning teleological argumentation should play a crucial role.

[10]As McLachlin (2003:17) argues, to ensure the meaningful application of rights in the context of the Canadian Charter of Rights and Freedoms, the purpose of the rule plays an essential role in interpretation to protect liberty not only in the abstract but also in the reality of people’s lives. For this reason the Supreme Court inquires (1) into the purpose of the right in question and (2) the way in which the law or government action complained of actually manifests in the life of the claimant and whether the law in question, viewed in the context of the claimant, abridged this purpose (Law Soicety of Britisch Columbia v. Andrews, (1989) 1 S.C.R. 143.

[11]For a reconstruction of the complex argumentation that has to be put forward in this context see Feteris (2006).

[12]

[13]See also McLachlin (2003) for the obligation of the Canadian Supreme Court in interpreting the Canadian Charter of Rights and Freedoms to check whether the law in question, viewed in the context of the claimant, abridges the purpose of the right in question.