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

Summary/Abstract: The aim of the article is to illustrate the complexity of the process of judicial updating of themeaning of a legal text in changing circumstances (e.g., developments in technology and sci-ence, social changes) and to answer the question about the role of courts and the legislatorin such updating. On the basis of an analysis of literature, legislation, and judicial practice, thebasic problems of updating a legal text and their selected solutions are presented. The topichas been widely discussed in the context of the Constitution, while the literature on updatingstatutes is still relatively rare. Meanwhile, the dynamics of external changes is intense. It hasbecome urgent to develop a theoretical framework for this issue. Judges, when updating, mustask themselves three questions. First, has there been a change? Second, what is the impact ofthe change on the meaning? Third, is the judiciary allowed to update? Within each of them,a question arises as to who is entitled to make a binding conclusion: the courts or the legislature.As for the first question, determining a change is often easy, but in doubtful cases where thereis no general agreement that circumstances have changed, judges would be well advised notto update on their own, but to rely on the legislature’s assessment of the disputed change. Withregard to the second question, judges determine the updated meaning, being primarily guidedby the purpose of the regulation. However, even when updating the same provisions, two differ-ent judges may come to different conclusions. Finally, as for question three, judges update, interalia, when they conclude that the failure to update is an omission on the part of the legislatureand consider themselves entitled to correct this error. Significantly, in some countries, the abilityof the judiciary to update arises from legislation: the Irish and Spanish provisions governing theissue are discussed in the article.

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