2 - Determining the scope of constitutional rights

Summary

Purposive interpretation

The two-pronged analysis distinguishes between the scope of the constitutional right and the extent of the right’s realization. How is the right’s scope determined? The answer is that the right’s scope is determined by the interpretation of the legal text in which the right resides. When the right is within a constitutional text, the process is of constitutional interpretation. There are several theories of constitutional interpretation.The following pages will focus on what is considered the best theory of constitutional interpretation, the theory of purposive interpretation.

Constitutional interpretation comprises part of the general theory of legal interpretation. Like any legal text, the constitution should be interpreted in accordance with its purpose. That purpose is a normative term. It is a judicial construction. It is a “legal institution.” It is the ratio juris. It is the purpose the text was designed to achieve. It is the text’s function. That purpose contains both the subjective purpose, regarding the intentions of the creators of the constitutional text, and the objective purpose, as to the understanding of the text based on its role and function. This interpretation, in turn, should take into account both the role and function played by the text at the time it was created, as well as its role and function at the time of interpretation. Purposive interpretation takes into account the special nature of the constitutional text. This nature is derived from the constitution’s legal status as the supreme law of the land, as well as from its unique role in shaping the nation’s image across generations.