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29 Cardozo L. Rev. 1109 (2007-2008)
Intention Is all There Is: A Critical Analysis of Aharon Barak's Purposive Interpretation in Law

handle is hein.journals/cdozo29 and id is 1131 raw text is: INTENTION IS ALL THERE IS: A CRITICAL
ANALYSIS OF AHARON BARAK'S PURPOSIVE
INTERPRETATION IN LAW
Stanley Fish*
INTRODUCTION
In the body of the Article that follows, I shall be describing and
assessing the arguments of Aharon Barak's Purposive Interpretation in
the Law.1 My interest in that book, however, is parasitic on a larger
interest in what has been called, variously, originalism, original intent,
intentionalism, and subjective intentionalism. It has been for some time
the prevailing view that by whatever name it is called, this view of
interpretation is no longer taken seriously. It has been referred to as a
dead horse, a discredited idea, a patent absurdity, and a misguided
attempt to bind us to the dead hand of the past.''2
What is it, exactly, that stirs up so much opposition? Here is
Robert Bork's definition, offered in an opinion piece lamenting the
reluctance of any but members of the Federalist Society to identify
themselves as originalists:
Originalism simply means that the judge must discern from the
relevant materials--debates at the Constitutional Convention ...
newspaper accounts of the time, debates in the state ratifying
conventions, and the like-the principles the ratifiers understood
themselves to be enacting. The remainder of the task is to apply
* Davidson-Kahn University Professor and Professor of Law at Florida International
University. B.A. University of Pennsylvania, 1959; Ph.D. Yale University, 1962.
1 AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW (Sari Bashi trans., Princeton
University Press 2005).
2 Randy E. Barnett, Scalia 's Infidelity: A Critique of Faint-Hearted Originalism, 75 U.
CIN. L. REV. 7, 8 (2006); see, e.g., H. J. Powell, The Original Understanding of Original Intent,
98 HARV. L. REV. 885 (1985); Paul Brest, The Misconceived Quest for the Original
Understanding, 60 B.U. L. REV. 204 (1980). Powell argues that the framers were not themselves
originalists. But the question is not what view of interpretation the framers happened to have, but
which view of interpretation is correct. If the correct view is originalism, in one of its versions,
the fact that the framers had a contrary view is only of biographical, not interpretive interest. If
interpretation works a certain way, but you think it works in some other way, the interpretation of
your words will proceed in accordance with interpretation's correct definition, not yours.

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