MISGUIDED COPYING OF ANGLO-AMERICAN PATTERNS? INTENTIONALISM AS A REASONABLE PROPOSAL FOR A CONTEMPORARY CONTINENTAL JUDGE
MISGUIDED COPYING OF ANGLO-AMERICAN PATTERNS? INTENTIONALISM AS A REASONABLE PROPOSAL FOR A CONTEMPORARY CONTINENTAL JUDGE

Summary/Abstract: In this paper, the author defies the thesis that intentionalism, as a concept of interpretation characteristic of Anglo-American legal culture, remains inadequate in continental systems. He then challenges the argument that the use of the intentionalist method in the practice of adjudication poses too many risks due to the alleged powerlessness of restrained judges against bad and archaic regulation. The idea of resolving social conflicts through democratic rather than judicial discretion – and this is at the heart of intentionalism – is common to both common law and civil law. After all, according to the assumptions of the tripartite separation of powers and the rule of law, the shaping of legal norms relating to controversial issues in society must be the domain of democratically elected politicians, not judges. Concepts of interpretation, such as the school of exegesis and subjective theory, developed in 19th-century continental Europe. These bear a strong resemblance to Anglo-American intentionalism. All these concepts limit the freedom of the interpreter (of judgment), without, however, falling into an ossified literalism (textualism) that makes an unauthorized separation between the message, the context and the intention of the sender. Furthermore, they consider legislative history as a useful tool for resolving interpretive disputes. The approach to interpretation defended in this paper does not necessarily mean that judges are helpless against bad or archaic legislation. Firstly, the intention of the legislator behind a given piece of legislation must always be seen in the horizon of the intention of the constitutional or international legislator (i.a., European Convention of Human Rights). In turn, trusting the legislator need not automatically be seen as riskier than trusting the judicature. Secondly, the intention of the legislator very often allows for flexibility for the interpreter, e.g., through vague expressions and general clauses. The interpreter, exercising discretion, should read the historical legislator’s purposes in the context of current realities. However, he or she cannot replace this axiology with any other.

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