Originalism

Originalism (Engl. Originalism ) is a legal doctrine for the interpretation of standards. The term "originalism" itself emerged in US constitutional law in the 1980s, although the methods proposed by the originalists are much older.

The originalistic methods

There are two main currents of originalism, each of which is defined by different methods of interpretation:

• The historical-teleological method (English original intent ). According to this method, the decisive meaning of a norm is determined by the purpose that its creators pursued with it. This can e.g. B. Legislation from the past or parliamentary deliberations can be found. Clarence Thomas , US Supreme Court Justice , takes this position.
• The grammatical-historical method ( original meaning or textualism ). According to this method, the decisive meaning of a standard is determined by its wording , namely by the meaning of the words which a reasonable person would ascribe to them during the time the standard was created. Antonin Scalia , also a judge on the Supreme Court , was the most prominent proponent of this view.

Both types of originalism have in common that elements of interpretation that were valid at the time , i.e. contemporary conceptions or the modern meaning of words, are not to be taken into account. It is important that originalism only has to do with the interpretation of a law, not with the construction. The former tries to grasp the linguistic meaning: What is the communicative message of the law or the legislature? What does the legislator want to achieve when he z. B. the speed on roads limited to 70 km / h? The construction, however, recognizes which legal consequences a law triggers - in the same example this would mean something like: "Fine of € 200 if you exceed 50 km / h". Even if the interpretation agrees, the same construction does not necessarily follow.

Arguments for Originalism

First and foremost, the originalists want to prevent those who apply the law - i.e. the judges - from assuming the powers of the legislature or constitution-maker by giving the norm a different or wider meaning than originally intended or understood, and thus actually the substance of the Change the norm yourself.

According to the originalists, this preserves the democratic separation of powers , since it is the task of the legislature or constitution, and not the judiciary, to adapt outdated norms to new circumstances by making changes to the text. In their opinion, this also creates legal certainty and prevents an undemocratic 'dictatorship of the judges' or the ' elite '.

There are also other reasons for the originalist approach:

• In a democracy, citizens can easily influence the revision of a law to adapt its wording or purpose to today's needs. It is therefore unnecessary to give a law a new, 'modern' interpretation. In this way, the will of the legislature is actually taken into account.
• Originalism provides the only objective way to interpret a law - by researching the will of the (then) legislator. If one does not proceed in this way, there is much greater leeway for the judges to create a personal, political interpretation.
• stare decisis - the imperative to decide in the same circumstances in the sense of earlier court judgments - would remove the basis by rejecting originalism.
• If the meaning of a law is to change due to changing social circumstances, why should the court take this into account - and not the parliament, which is directly elected by the people and is thus closer to the pulse of the times?
• Originalism still allows judges to come to different interpretations. The First Amendment of 1791 guarantees freedom of the press . Can the freedom of the press also be used with new developments such as radio broadcasts and websites, or does the freedom of the press only apply to printed works? The unpredictability that arises from the originalist approach - after all, the original will of the legislature can hardly be fully explored after such a long time - are, in the opinion of the originalists, still less than if a law were to be replaced by a 'living law' every twenty or thirty years 'Interpretation changes its character significantly.

Arguments against originalism

The opponents of originalism (generally from the political camp known as "left-wing liberal" in the USA) are of the opinion

• that 'the' opinion of the original normative cannot be determined objectively,
• that static and general norms such as constitutions demand a flexible interpretation,
• that the 'dead hand' of the historical norm-giver should not be decisive for the present day,
• that changed meanings of words and sentences, which the majority of the population nowadays are familiar with and accepted, express the desire of the citizens to change the prevailing doctrine. The constitution would then be in line with current views of what constitutes an element of democratic co-determination that the legislature could possibly revoke,
• That originalism is also a representative of judicial activism : One reason why the legal text does not fully reflect the intentions of the (expressing) proponents of a law or the opinion of the people of yesteryear could be that there is no majority in the Parliament was present. Visionary or moderate parliamentarians would otherwise have refused to approve the norms in question, as they would prefer that some issues are regulated with the help of different interpretations or taking into account the spirit of the times and progress. Because of this, originalism is accused of giving strength to the opinion of currents that already reflected the minority in parliament at the time the norms were set.

The methodological alternative to the originalism is sometimes as vivid Constitution '( living constitution ) apostrophiert. Representatives of this view include the Supreme Court judges Stephen Breyer and Ruth Bader Ginsburg, who are considered liberal .

Political significance of the method dispute

This methodological dispute is of great political importance in the USA, especially against the background of the United States ' constitution, which is around 200 years old and can only be changed with great difficulty, and in view of the very powerful role of the Supreme Court as a constitutional court .

In US constitutional history, especially in the 20th century , the major constitutional upheavals were brought about by a very extensive interpretation of the constitution by the Supreme Court, namely in the area of ​​civil rights and centralization by expanding the powers of the federal government. A consistent turn by the Supreme Court to originalism while at the same time abandoning the principle of stare decisis would, in extremis, result in the fundamental rights protected by the constitution - and largely accepted as valid law today - on the status of the 19th or 18th century would fall back, and that large parts of federal law would have to be repealed as incompetent.

Comparable doctrines outside of the US

A parallel to the method of originalism can be found in the constant case law of the Austrian Constitutional Court in the form of the "petrification theory" (also: "petrification principle"). In public law, especially in constitutional law, a special type of historical interpretation applies, which emphasizes the meaning of a term that it had at the time the constitutional provision came into force according to the status and systematics of the (constitutional or ordinary) legal situation applicable at that time . As a rule, it refers to a specific time of petrification, namely October 1, 1925 (the date on which the relevant articles of the 1925 constitutional amendment came into force). The petrification theory is mainly used in the interpretation of the articles of competence, the rules of organizational law and the fundamental rights.

Web links

• Lawrence B. Solum: Originalism in Legal Theory Lexicon (accessed July 16, 2020, August 11, 2019).

Individual evidence

1. ↑ Lawrence B. Solum: "The Interpretation-Construction Distinction"
2. ↑ cf. Kreuzbauer, legal interpretation method and gap filling  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.