theory-of-law
Is there any modern theory of functional law which emphasizes the purpose of a law over the implementation?
<p>I was thinking about loopholes and how there can reasonably often be unintended side effects of certain laws - the specific terms of the law serve a higher-level telos, a rationale, but the law manifests itself as more precisely interpretable rules, the what, not the why; or, the how, more than the what. To give just one example, in Denmark I have been told that it is illegal to grow and possess cannabis but not to buy or sell cannabis seeds. One could imagine that the intention in general is to make cannabis a forbidden substance, particularly consumption of it as a drug. But for various reasons, perhaps unrelated to cannabis specifically, they decided it may be excessive, or unjust, or undesirable, to ban.. some associated plant structure or something that is not itself psychoactive.</p>
<p>But this slightly forced, arbitrary division between allowed and not allowed only invites weird ways of toying with or working around the law. You cannot hold a marijuana leaf in your hand, or something, but you may legally be able to unload a dump truck of cannabis seeds on a farm or in a forest, provided you did not tend to them, so as to not be guilty of having “grown” them.</p>
<p>The key point is that the intention of the law is not actually present in the law; it may be that lack of clarity, in which the law is not so straightforward, does not really say what it wants to, says it in an indirect, and hence slightly inaccurate way, which makes it less that optimally effective.</p>
<p>I was just thinking about functional programming vs declarative. I am not sure I understand it totally, but I feel like functional programming is based on a much higher level of abstraction where it becomes much more possible to state abstract intentions in an exactly precise, non-circumlocutory way.</p>
<p>It made me wonder if there is a more modern legal philosophy in which laws are not slightly antique dictations sort of like a literal reading of Moses’s 10 commandments but rather attempt to make the actual purpose the clear part and eliminate pedantic misinterpretations or legal backfiring.</p>

<h2>Yes - its called <a href="https://en.wikipedia.org/wiki/Purposive_approach" rel="nofollow noreferrer">purposive</a> interpretation</h2>
<p>It is the most common approach in most jurisdictions.</p>
<p>That said, if a statute is clear and unambiguous in what it means or provides a specific definition of a term then that is what the court will apply. However, for your example of whether dumping seeds and then returning later to see if any had germinated counts as &quot;grown&quot; they would look to the intention of the legislature including any objective explicitly stated in the Act, committee reports, speeches in the chamber, law reform commission reports etc. to determine if the activity ios caught by the law.</p>

<p>No. Even the approach of purposive interpretation does not emphasize purpose <em>above</em> implementation. Rather, purpose is an integral part of determining what the implementation actually is.</p>
<p>Under the purposive approach (<a href="https://en.m.wikipedia.org/wiki/Purposive_approach" rel="nofollow noreferrer">also called</a> the &quot;modern principle&quot; or &quot;modern approach&quot;):</p>
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<p>the words of an Act are to be read in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.</p>
<p><em>Rizzo &amp; Rizzo Shoes Ltd. (Re)</em>, [1998] 1 S.C.R. 27 at <a href="https://canlii.ca/t/1fqwt#par21" rel="nofollow noreferrer">para. 21</a>.</p>
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<p>There are not two separate steps of first deciding whether the words have an unambiguous meaning and <em>then</em> looking to purpose if necessary. Instead, the <em>purpose</em> of the statute is <em>part</em> or what must be considered in the single step of deciding <em>whether</em> the meaning in its full context is ambiguous:</p>
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<p>What, then, in law is an ambiguity? To answer, an ambiguity must be “real”. The words of the provision must be “reasonably capable of more than one meaning”. By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. ... “It is only when genuine ambiguity arises between two or more plausible readings, <strong>each equally in accordance with the intentions of the statute</strong>, that the courts need to resort to external interpretive aids”, to which I would add, “including other principles of interpretation” [in this case, the principle of lenity, or strict construction].</p>
<p><em>Bell ExpressVu Limited Partnership v. Rex</em>, <a href="https://canlii.ca/t/51s6" rel="nofollow noreferrer">2002 SCC 42</a>.</p>
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