Judicial Law-Making in English and German Courts addresses the often neglected relationship between statutory interpretation and constitutional law. The book is concerned with the limits of judicial power in a legal system. Judicial lawmaking occurs when judges restrict or extend the scope of application of a provision beyond or against the possible semantic meanings of the statutory language. How far do contemporary English and German judges go when they interpret national legislation? Where are the limits of statutory interpretation when judges venture outside the constraints of the text? Do these limits converge or diverge in both jurisdictions? The book critically analyses, reconstructs and compares judicial law-making in English and German courts from comparative, methodological and constitutional perspectives. It maps the differences and commonalities in both jurisdictions and then offers explanatory accounts for these differences and similarities based on constitutional, institutional, political, historical, cultural and international factors.
This book is addressed to a wide audience. It mainly appeals to an academic readership interested in the fields of statutory interpretation, legal methodology, constitutional law and comparative law. Practitioners in either jurisdiction will find it to be an accessible source of reference as this book reconstructs the fragmentary material on conventional, rights-consistent and EU-conforming judicial law-making in judicial opinions in English and German courts into a rational, coherent and systematic whole. Students of legal skills, constitutional law and comparative law will also find it a useful source of reference.
With regard to terminology, I use the term “ case law ” in a broad sense, meaning rulings of courts. The term “ legislation ” is solely used in this book to mean enacted law. “ English courts ” refers to the courts of England and Wales, and “ English law ” refers to the law applicable in England and Wales. The term ” UK constitutional law “ is used to refer to the constitutional law applicable in England. The term “ provision ” in this book refers to a specific section or part of a section either in primary or delegated legislation. “ Construction ” and “ interpretation ” are used interchangeably. All translations from German judgments are my own. Citations of German judgments do not link to the official reports as these are not available online, but rather to law journals where the judgments are published in full (these are available online via Beck-Online).