Judicial Update of the Meaning of a Legal Text in Three Questions

Keywords: Interpretation, construction in changing circumstanceseparation of powers, courts, dynamic interpretation, lawmaker.

English abstract: The aim is to illustrate the complexity of the process of judicial updating of the meaning of a  legal text in changing circumstances (e.g. developments in technology and science, social  changes) and to answer the question of the role of courts and the legislator in making updates.  On the basis of an analysis of literature, legislation and judicial practice, the basic problems of  updating a legal text and their selected solutions were presented. The topic has been widely  discussed in the context of the Constitution, while the literature on updating statutes is still  relatively rare. Meanwhile, the dynamics of diverse external changes is intense. It has become  urgent to develop a theoretical framework for this issue. Courts, when updating, must ask themselves three questions. First, has there been a change? Second, what is the impact of the  change on the meaning? Third, is the judiciary allowed to update? Within each of them, the  question arises as to who is entitled to make a binding conclusion: the courts or the legislature.  Ad 1. The determination of a change is often not difficult, but in doubtful cases where there is  no general agreement that circumstances have changed, the courts would be well advised not to  update on their own, but to rely on the legislature’s assessment of the extent in dispute. Ad 2. Courts determine the updated meaning, primarily guided by the purpose of the regulation.  However, even when updating the same provisions, two different courts may come to different  conclusions. Ad 3. Courts update, inter alia, when they conclude that the failure to update is an  omission on the part of the legislature and consider themselves entitled to correct this error.  Significantly, in some countries, the ability of the courts to update arises from legislation: the  Irish and Spanish provisions governing the issue is set out in the text. 

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