I lean towards originalism

Recent events from USA has brought this to my attention again. It’s a long time since it was discussed in relation to the Court of Justice of the European Union, because generally speaking the political climate in Europe favours a revisionist Court.

I do not.

Originalism, in relation to legal systems, means that a law is to interpreted corresponding to how it was meant at the time of its creation.

There are of course different ways of doing this and the most extreme version is where you try to imagine how people living a century or more ago would consider modern situations, without leaving space for any modernity.

I lean more towards a compromise, where the original intent is interpreted into the modern reality.

There is an alternative, textualism which the late US Supreme Court Justice Antonin Scalia argued for, where no intent is ever to be considered, only the actual text of the law.

I don’t think that will hold up, as sometimes the actual law is ambivalent while the expressed reasoning can help determine what the actual intent was. But there are good arguments for textualism.

[…] the crucial question becomes which theory of textual interpretation is compatible with democracy. Originalism unquestionably is. Nonoriginalism, by contrast, imposes on society statutory prescriptions that were never democratically adopted […]
— Antonin Scalia

A revisionist court, as many Europeans prefer, would instead interpret the law as if it was written today; how would the law have been, if it was new. Again, there are many ways of doing this and this is the most extreme version.

The reason I dislike that is that I find it democratically problematic; we are allowing a small select group of people to change the interpretation of the law, according to their perception of parliamentary will. That way, the law is changed but no-one is democratically responsible for it, so the public has no way to vote accordingly.

If a law needs to be changed, it should be done by the legislative branch.

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