Chapter 2 explores the outer limits and techniques of judicial law-making applied by English and German courts under conventional modes of interpretation. The term “ conventional ” modes of interpretation refers to statutory interpretation in a purely domestic context without regard to EU law or the ECHR. It also excludes the interpretation of ordinary legislation in the light of a constitutional statute or constitutional principles. Chapter 2 is structured as follows: Section 1 discusses the aim of statutory interpretation. Section 2 explains the interpretative criteria and their weighing in both jurisdictions. The next two sections introduce the reader to judicial law-making in Germany These two sections provide some background to the main themes of this book. (Section 3) and England (Section 4). Both sections will focus on the outer limits and techniques of judicial law-making. Section 5 provides a concluding comparative analysis.
AIM OF STATUTORY INTERPRETATION
When German courts interpret statutory provisions, they aim to ascertain the intention of the legislature. This presupposes that intentions can reasonably be ascribed to the legislature. According to the BVerfG, the task of the judge is limited to applying as accurately as possible the sense and purpose of the provision as determined by the legislature to the facts of the particular case even if the circumstances have changed or to fill an unintended (planwidrige) gap with the recognised methods of statutory interpretation. The question of the appropriate aim of statutory interpretation is a highly controversial topic in German legal scholarship. Existing theories can roughly be grouped into (a) subjective theories, (b) objective theories and (c) mixed theories. According to subjective theories, the notion of legislative intention and the aim of statutory interpretation to determine this intention refer to the original intention of the historical (or enacting) legislature at the time the statute was created (fixed or original meaning). This original intention is binding on the court. Objective theories argue that the aim of statutory interpretation is determined by the normative (or reasonable) sense and purpose inherent in the provision as understood at the time of its application (evolutionary or current meaning). Objective and subjective theories are not always that clear cut in legal scholarship; they can come in different shapes.