Historical Arguments, Dynamic Interpretation, and Objectivity: Reconciling Three Conflicting Concepts in Legal Reasoning

The Law between Objectivity and Power, pp. 111-143, Philip Bender, eds., Nomos, May 2022

DOI: 10.5771/9783748927211-111

Max Planck Private Law Research Paper No. 22/13

36 Pages Posted: 1 Aug 2022

See all articles by Franz Bauer

Franz Bauer

Max Planck Institute for Comparative and International Private Law

Abstract

Since the nineteenth century, the notion of a ‘historical’ type of argument is deeply entrenched in the German discourse on legal reasoning. These arguments, based on the historical context or the legislative history of a norm, are sometimes regarded as a more objective basis for legal decision making than ever-contentious normative judgements. At the same time, historical reasoning has been charged for making dynamic interpretation impossible by ‘freezing’ the law in an original state that will soon be outdated by social change. This common image can be exemplified by the Thuringian Constitutional Court’s recent decision on the constitutionality of gender-balanced election lists. In this article, I argue that this image is over-simplistic and misleading on both counts: Historical arguments cannot provide the kind of definite objectivity that is sometimes attributed to them, although they can have an important rationalising effect, depending on how thoroughly the historical enquiry is carried out. Nor are such arguments by their very nature static. With respect to legislative intent, theorists have drawn a useful distinction between ‘intent as meaning’ and ‘intent as purpose’. When legislators choose a particular term with a specific meaning in mind, this intention has to be respected. But when their primary concern is about attaining some legislative purpose, the interpreter is called upon to align this initial purpose with modern day conditions. In this way, historical arguments can provide a useful standard for rationalising dynamic interpretation and, thereby, both support and constrain interpretative change.

Note: This article is published in the Max Planck Private Law Research Paper Series thanks to Open Access. It is distributed under the terms of the Creative Commons Attribution-ShareAlike 4.0 International License (https://creativecommons.org/licenses/by-sa/4.0/). No changes were made to the article.

Keywords: Dynamic interpretation, statutory interpretation, historical arguments, legislative intent, legislative history, meaning and purpose, objectivity, Thüringer Verfassungsgerichtshof, gender-balanced election lists

Suggested Citation

Bauer, Franz Albert, Historical Arguments, Dynamic Interpretation, and Objectivity: Reconciling Three Conflicting Concepts in Legal Reasoning. The Law between Objectivity and Power, pp. 111-143, Philip Bender, eds., Nomos, May 2022, DOI: 10.5771/9783748927211-111, Max Planck Private Law Research Paper No. 22/13, Available at SSRN: https://ssrn.com/abstract=4166026

Franz Albert Bauer (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
Germany

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