Description
This paper assesses how far English and German judges go when they interpret national legislation. It focuses on the methodological limits of judicial law-making, thus adding an underexplored aspect to the debate about converging / diverging statutory interpretation in civil law and common law jurisdictions. The paper explores reasons that may explain the existing similarities and differences in these limits in England and Germany. Judicial law-making occurs when judges restrict or extend the scope of application of a provision beyond or against the possible semantic meanings of the statutory language. The principle of legal certainty, the rule of law and the constitutional separation of powers are affected to a significant degree when judges engage in judicial law-making. Hence, the paper also investigates the often neglected relationship between statutory interpretation and constitutional law. The wider debate the paper feeds into is the debate about the limits of judicial power.The paper argues that opposing default positions exist in English and German judicial practice in relation to the permissibility of judicial law-making. This is not only due to different underlying constitutional settings but also due to historical factors and tradition that affect judicial attitudes. The paper thus rejects the thesis that statutory interpretation in both countries is fundamentally uniform. In the areas of rights-consistent judicial law-making and interpretation in conformity with an EU directive, the paper discerns contrasting trends in statutory interpretation in both jurisdictions. One effect of these trends is, however, a growing congruence in the general expression of methodological limits of judicial law-making as well as in their application in individual cases in English and German courts. Changes in the UK constitutional framework can partly, but not fully justify this convergent development. Another reason for the high level of convergence is that English courts have exceeded their judicial powers.
| Period | Sept 2018 |
|---|---|
| Event title | Society of Legal Scholars 109th Annual Conference |
| Event type | Conference |
| Location | London, United KingdomShow on map |
| Degree of Recognition | National |