If you’re looking for the short answer, then I lean towards originalism, structuralism, and textualism, but I think this is a case of putting round pegs in square holes. Definitionally, these terms seem to fit, but loosely and imperfectly—and relying on these categories alone, we’d be misled into thinking that the square hole is, in fact, round.
Translating real-world interpretive approaches into our regional law is a delicate matter. Relying too heavily on real-world analogues may seem divorced from regional realities; ignoring them may seem to indicate intellectual hubris. In truth, I am sure that all of us are influenced to an extent by ideas about the judiciary first developed long before the South Pacific ever existed. We know that justices should be impartial, even if Article VII of the Charter, which establishes the High Court, does not say so explicitly. We know that justices should respect the separation of powers, even if Article VIII of the Charter, which concerns the separation of powers, does not use those exact words. We know these things because they are deeply ingrained in the very idea of what it means to wield “judicial authority,” an idea that certainly did not originate within our region’s borders.
That alone, however, does not mean that the categories we may use to distinguish jurisprudential approaches in real life will translate easily into our regional context. Half of our justices aren’t from the United States, but there’s a reason why the Wikipedia articles on ‘originalism’ or a ‘Living Constitution’ refer only to American law. Our Charter is not nearly as difficult to amend as the United States Constitution; as a consequence, even at just a strictly textual level, it has adapted more easily to changing circumstances. Likewise, our Charter is not nearly as old as the United States Constitution; as a consequence, there is far less of a difference between contemporary principles of government and those at the time it was drafted. In some cases, we encounter a provision that has not changed since 2016; in others, we encounter a provision that was only recently added. Maybe the moniker of ‘originalism’ is definitionally accurate when a justice looks to the original meaning of a provision adopted just a month ago, but it seems to me like it doesn’t quite capture the deeper idea about judicial interpretation that it typically refers to in real life.
It’s not even clear to me that our laws demand distinct approaches to constitutional and to statutory interpretation. In practice, constitutional laws are often not written in any different style or with any different concerns than general laws, and yet those constitutional laws are no more difficult to amend than the Charter itself. At times, the Assembly even adopts bills that amend some combination of the Charter, constitutional law, and general law. Why, then, is originalism applicable to constitutional interpretation but not statutory interpretation? Why is textualism applicable to statutory interpretation but not constitutional interpretation? I don’t know that I would view these as separate boxes to tick.
I don’t want to seem like I’m ducking all of your questions—though if you’re interested in real-world analogues, maybe that’s one. And I also don’t want to suggest that I believe our jurisprudence should not be guided by some broader principles. To your point about textualism versus purposivism, I trust that my answers to the Judicial Selection Survey two years ago may be of some use:
But can real-world sources inform the spirit of regional law? In some of my opinions—I believe this is probably what you mean when you say that amici “frequently” cite real-life case law—I have cited dozens of real-world authorities. In others, I cited none. (I can’t recall perfectly from memory, or discern easily from scanning the briefs—such is the value of footnoted citations!—but I don’t believe amici cited any either; I feel your view of real-world citations as being frequent might be skewed by some of our recent cases.) Where our law references but does not define an existing concept, I believe it is reasonable to look to the general understanding of that term. Just as a dictionary might contain the accepted meaning of a commonly used term, real-world case law might contain the accepted meaning of a legal term of art. But that is distinct from the wholesale incorporation of centuries of common law. For one, our community welcomes members from all across the (real) world; and admittedly, we speak the English language, but we certainly do not require our members to hail from jurisdictions steeped in English legal traditions. And for another, we should be a court for all South Pacificans. Every South Pacifican can read our laws. Every South Pacifican can read the Court’s opinions. But can we really expect them to have read Blackstone’s commentaries cover to cover? To know the judicial precedents of the dozens of countries where English is an official language? There are always boundaries to our laws, and there are times when the text seems to reach beyond those boundaries to some existing real-world concept. Taken to an extreme, we certainly don’t maintain our own dictionary; a “majority” in the South Pacific means the same thing as a “majority” in the real world. But we need not reach beyond those boundaries when our laws have already sought to address the particular concerns or questions presented; and when we reach beyond those boundaries, we should remember that we are doing so—and that incorporating real-world ideas that the Assembly did not reasonably intend to refer to runs the risk of legislating from the bench.
In the case you allude to, and without addressing the merits, I think we should be wary of overbroad incorporation of common law on issues that our region has already legislated. For years, the Court has found its powers of judicial review under Article VII, Section 4 sufficient to review the actions of government officials, and its injunction powers under Article 9, Section 1 of the Judicial Act sufficient to compel action prior to an opinion that holds, for legal questions, the full force of law. That might be different if there was an argument presented that our laws incorporate a common law principle—but as a general matter, if the Assembly has legislated a materially and substantially similar area of concern without evidence of incorporation, we should remember that the Assembly is the only legislative authority of the Coalition.