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Purpose in Law and in Interpretation
Published online by Cambridge University Press: 15 December 2025
Abstract
The common law tradition has always been sceptical of philosophy, prioritising the importance of practical experience in real world cases over abstract general ideas. This article attempts to demonstrate how the ideas of two philosophers—Fuller and Wittgenstein—help to explain the widespread use of the notion of purpose in real world case law. Fuller’s conception of law as the enterprise of subjecting human conduct to the governance of rules illuminates the common law’s respect for the agency of legal subjects, whether that be respecting parties’ purposes in making a contractual bargain or using purpose as a basis for limiting liability in tort. Similarly, Wittgenstein’s conception of language demonstrates the necessity of resort to purpose in interpretation, as the open-textured nature of words means that legal rules only become determinate when used in specific contexts for specific purposes. The article focuses primarily on the United Kingdom’s (UK) legal system, with its two tracks of the common law and parliamentary legislation, but also extends the argument to examples drawn from forms of supranational law to demonstrate that the analysis is capable of being generalised beyond the UK’s legal system.
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References
1 Oppenheimer v Cattermole [1976] AC 249.
2 See L Collins, ‘The Influence of FA Mann on English Case Law: The Validity of Acts of State Contrary to Human Rights and International Law and the Enforcement of Foreign Public Law’ in J Grant Allen and G Dannemann (eds), FA Mann: The Lawyer and His Legacy (OUP 2024) 135.
3 FA Mann, ‘The Present Validity of Nazi Nationality Laws’ (1973) 89 LQR 194.
4 ibid 198–200.
5 Oppenheimer (n 1) 268E–F (Lord Cross).
6 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
7 Arnold v Britton [2015] UKSC 36, para 15 (Lord Neuberger).
8 R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, para 8.
9 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, arts 31–32.
10 M Lane, ‘Functions of Lawgivers from Solon to Fuller’ (The Isaiah Berlin Lectures 2024, Lecture II, University of Oxford, 5 November 2024) <https://media.philosophy.ox.ac.uk/berlin/MT24_Lec2.mp4>.
11 L Fuller, The Morality of Law (Yale University Press 1969) 106.
12 ibid.
13 ibid 38–39.
14 Fuller illustrates this through the allegory of the hapless lawgiver ‘Rex’: ibid 33–38.
15 ibid 96.
16 ibid.
17 ibid 153.
18 ibid 96.
19 K Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Hart Publishing 2012) 72.
20 ibid especially 2, 9–11, 97–101.
22 In this section, I draw on P Sales, ‘Contractual Interpretation: Antinomies and Boundaries’ in E Peel and R Probert (eds), Shaping the Law of Obligations (OUP 2023) 153.
23 In particular, in L Wittgenstein, Philosophical Investigations (GEM Anscombe trans, 3rd edn 1968), and writers drawing on his work. See also HP Grice, Studies in the Way of Words (Harvard University Press 1989).
24 See GP Baker and PMS Hacker, Wittgenstein: Understanding and Meaning (2nd edn, Wiley 2005) 15 and, in particular, ch VIII (‘Meaning and Use’), ch XI (‘Family Resemblance’), ch XVII (‘Understanding and Ability’).
25 Fuller was well-attuned to this feature of language. The emphasis on purpose in his jurisprudence was influenced by Wittgenstein: see, e.g. L Fuller, ‘Human Purpose and Natural Law’ (1958) 3 AmJJuris 68, 71; Fuller (n 11) 186.
27 JF Manning, ‘What Divides Textualists from Purposivists?’ (2006) 106 ColumLRev 70, 78.
28 Sales (n 22) 153.
29 The use of the term ‘High Contracting Parties’ to describe signatories to a treaty substantiates this analogy.
30 See, e.g. ParkingEye Ltd v Beavis [2015] UKSC 67, para 13 (Lord Neuberger and Lord Sumption) (‘[l]eaving aside challenges going to the reality of consent, such as those based on fraud, duress or undue influence, the courts do not review the fairness of men’s bargains either at law or in equity’).
31 R v Secretary of State for the Home Department ex parte Pierson [1998] AC 539, 573G (Lord Browne-Wilkinson), 587C (Lord Steyn).
32 Rainy Sky SA v Kookmin Bank [2011] UKSC 50, para 14 (Lord Clarke).
33 See, inter alia, M van den Brink, Legislative Authority and Interpretation in the European Union (OUP 2024).
34 See, inter alia, Case C-621/18 Wightman v Secretary of State for Exiting the European Union ECLI:EU:C:2018:999, paras 4, 61, 67.
35 Consolidated Version of the Treaty on European Union [2008] OJ C115/13, art 5, and Case C-156/21 Hungary v European Parliament and Council of the European Union ECLI:EU:C:2022:97, para 127. For discussion of such reasoning on the basis of ‘identity’ in relation to the EU, see J Scholtes, The Abuse of Constitutional Identity in the European Union (OUP 2023).
36 e.g. in the area of consumer law, see M Durovic and HW Micklitz, The Internationalization of Consumer Law: A Game Changer (Springer 2016).
37 Directive (EU) 2024/2853 of the European Parliament and of the Council of 23 October 2024 on liability for defective products and repealing Council Directive 85/374/EEC[2024] OJ L1. See, for further discussion, Bingham Centre for the Rule of Law ‘Post-Brexit Regulatory Models and Delegated Powers in the UK: Summary of Panel Discussion Held at BIICL, 12 March 2025’ <https://binghamcentre.biicl.org/events/1443/post-brexit-regulatory-models-and-delegated-powers-in-the-uk>.
38 e.g. in ruling that a party presented itself as the producer of a product by virtue of the fact that ‘the name of that supplier or a distinctive element thereof is the same, on the one hand, as the name of the manufacturer and, on the other hand, as the name, trade mark or other distinguishing feature put on the product by the manufacturer’, the CJEU opined that ‘Article 3(1) of Directive 85/374 must be interpreted, in the light of the context of that provision and the objective pursued by the rules of which it forms part’: Case C-157/23 Ford Italia v ZP, Stracciari SpA ECLI:EU:C:2024:1045, para 46.
39 Spartan Steel v Martin & Co [1973] QB 27.
40 Manchester Building Society v Grant Thornton [2021] UKSC 20.
41 ibid para 4 (Lord Hodge and Lord Sales).
42 Tomlinson v Congleton BC [2003] UKHL 47, paras 45–47 (Lord Hoffmann).
43 For detailed discussion, see, inter alia, van den Brink (n 33) ch 2; O Garner, Constitutional Disintegration and Disruption: Withdrawal and Opt-Outs from the European Union (OUP 2025) ch 2.
44 See, inter alia, van den Brink (n 33) especially chs 5, 7, 8.
45 See, e.g. R (O) v Secretary of State for the Home Department [2022] UKSC 3, paras 29–31 (Lord Hodge).
46 River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763–64 (House of Lords).
47 P Sales, ‘In Defence of Legislative Intention’ (2019) 48 AustBarRev 6.
48 JF Manning, ‘Without the Pretense of Legislative Intent’ (2017) 130 HarvLRev 2397. For a list of others taking a similar position, see R Ekins, The Nature of Legislative Intent (OUP 2016) especially 3–4, ch 2.
49 J Gardner, ‘Some Types of Law’ in DE Edlin (ed), Common Law Theory (1st edn, CUP 2007) 51, 57–60.
50 I was previously attracted by this view, see Sales (n 47). But, whilst a form of group agency is exercised by Parliament, this particular metaphor is inexact.
51 This is from a work in progress kindly shared by Timothy Endicott, his forthcoming book, Words and Rules.
52 P Sales, ‘Legislative Intention, Interpretation and the Principle of Legality’ (2019) 40 StatLR 53, 59.
53 HM Hart Jr and AM Sacks, The Legal Process: Basic Problems in the Making and Application of Law (WN Eskridge Jr and PP Frickey eds, West Academic 1994) 1124–25.
54 Ekins (n 40) 113–17, ch 5.
55 HLA Hart, The Concept of Law (3rd edn, OUP 2012) 128.
56 ibid 124–36.
57 See on these Sales (n 52) 59–60.
58 F Nietzsche, Beyond Good and Evil ([1886] W Kaufmann trans, Random House 1966) para 19: willing is a complex activity and ‘something that is a unit only as a word’. S Hampshire, Justice is Conflict (Princeton University Press 1999) ch I, ‘The Soul and the City’, discussing the Platonic analogy between conflict in the divided minds of individuals and in the polis. H Frankfurt, The Importance of What We Care About (CUP 1998).
59 I accept that it is not entirely free from criticism. See, e.g. P Benson, Justice in Transactions: A Theory of Contract Law (Harvard University Press 2019) 117–21.
60 Sales (n 52) 59–60.
61 A Burrows, Thinking about Statutes: Interpretation, Interaction, Improvement (CUP 2018) 19–20.
62 P Sales, ‘Modern Statutory Interpretation’ (2017) 38 StatLR 125.
63 See F Schauer, Playing by the Rules (OUP 1993).
65 R (O) v Secretary of State for the Home Department [2022] UKSC 3, para 29.
66 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A.G. [1975] AC 591, 613 (Lord Reid).
67 Pepper v Hart [1993] AC 593.
68 R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28.
69 ibid para 41.
70 ibid para 42.
71 See NN Shuibhne, ‘What Is the Autonomy of EU Law, and Why Does that Matter?’ (2019) 88 NordJIntlL 1. For a recent authoritative analysis of autonomy in German, see C Langenfeld, Die Autonomie des Unionsrechts in der EuGH-Rechtsprechung (Mohr Siebeck 2024). See also C Langenfeld, ‘The “Autonomization” of EU Fundamental Rights Protection: Insights into the Recent ECJ Case Law on Article 52(3) CFR’ (2024) 31 MJ 2.
72 Sales (n 52) 128.
73 A Vermeule, Common Good Constitutionalism: Recovering the Classical Legal Tradition (Polity 2022).
74 ibid 2. In this regard, Vermeule aligns himself with Ronald Dworkin’s theory of interpretation.
75 ibid 96 (emphasis in original). See generally ch 3 (‘Originalism as Illusion’). Cf the doctrine of a statute as ‘always speaking’ to cover new situations identified as falling within the policy of the law as originally enacted, as explained in Quintavalle v Human Fertilisation and Embryology Authority [2005] UKHL 28.
76 Vermeule (n 73) 111.
77 Sales (n 52) 62. See P Sales, ‘A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998’ (2009) 125 LQR 598. See, e.g. R v Secretary of State for the Home Department, ex p. Pierson [1998] AC 539, 573G–575D (Lord Browne-Wilkinson), 587C–590A (Lord Steyn). See also P St J Langan, Maxwell on the Interpretation of Statutes (12th edn) 251ff (‘Statutes Encroaching on Rights or Imposing Burdens’).
78 See R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, 131E–G (Lord Hoffmann).
79 Sales (n 52) 62.
80 R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 2 AC 349.
81 ibid 366.
82 Sales (n 52) 125.
83 Medical Board of Australia v Kemp (2018) 56 VR 51.
84 ibid para 108.
85 ibid para 116.
86 ibid paras 126–127.
87 Sales (n 52) 61.
88 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 (EHCR), art 8(2).
89 Bank Mellat [2013] UKSC 39, para 20 (Lord Sumption).
90 This is illustrated by Ghaidan v Godin-Mendoza [2004] 2 AC 557, where the House of Lords found that there was no legitimate aim pursued by legislation which excluded homosexual couples from benefitting from provisions providing for an assured shorthold tenancy to pass to a person’s partner after they died. The legislation therefore breached the claimant’s rights under art 8 ECHR.
91 See, e.g. the State’s interest in maintaining the economic health of the country in relation to the adoption of social welfare legislation: R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 (SC), para 130 (Lord Reed).
92 As remarked upon in R Gordon, ‘Legitimate Aim: A Dimly Lit Road’ [2002] EHRLR 421. For discussion of the case law, see J Gerards, General Principles of the European Convention on Human Rights (2nd edn, CUP 2023) ch 10.
93 R (Countryside Alliance) v Attorney General [2007] UKHL 52.
94 ibid para 40.
95 SC (n 91).
96 ibid para 192.
97 Bill of Rights 1689 (1 Will & Mar Sess 2 c 2).
98 Wilson v First County Trust Ltd [2003] UKHL 40, paras 51–67 (Lord Wilson).
99 ibid para 67. See also the discussion in SC (n 91) paras 163–185.
100 AL Goodhart, ‘English Contributions to the Philosophy of Law’ (1948) 48 ColumLRev 671.