Washing the Last Grain of Truth Away: The Distinction between Legislative and Judicial Lawmaking

  • Date: –12:00
  • Location: Faculty Room of the Law Faculty, Trädgårdsgatan 1
  • Lecturer: Triantafyllos Gkouvas, Researcher in Philosophy of Law, Former Research Fellow in Legal Theory and Public Law, Monash University
  • Organiser: The Department of Philosophy and the Department of Law at Uppsala University in cooperation with Uppsala Forum on Democracy, Peace and Justice
  • Contact person: Elena Prats
  • Föreläsning

The seminar will provide a brief examination of the way in which both civilian and common law courts seek to fend off criticism of judicial rewriting of statutes.

These developments can have instructive relevance for a parallel jurisprudential debate about whether the contribution of statutes and other legal sources to the content of the law can change over time and, if so, what can account for this modification.

In this paper it is argued that the philosophical discussion about the modifiability of legal rules inherits the ambiguity sustained by doctrinal theories of statutory interpretation and judicial review of legislation. More precisely, it shall be argued that, regardless of the degree of abstraction at which the problem of legal modification (as I plan to term it) is addressed, there persists a failure to distinguish between three dimensions in which changes in pre-existing law can occur. For the sake of bypassing the arduous task of exactly matching or reducing doctrinal terms used by different traditions of legal thought and practice to their philosophical counterparts, generic expressions “legal vehicle”, “legal content” and “legal fact” will be used in order to capture three distinct instances of legal modification which affect the validity, meaning and application of the law respectively.

Following a brief explanation of how to tell apart cases of phenomenal and actual legal modification, the paper defends the claim that available analyses of the distinction between legislative and judicial avenues for changing the law underestimate the importance of the distinction between the invalidation, re-interpretation and disapplication in particular cases of primary or delegated legislation. The importance of this distinction is evidenced by the observation that the three abstract variants of legal change (validity, meaning, application) can directly track actual institutional variations in how different legal systems or doctrinal traditions model the interaction between statutes and other laws or legal principles.

What remains to be explained is what can account for the variable treatment of similar cases of statutory interaction in different institutional contexts. The idea defended towards the end of this paper is that only considerations of political legitimacy can ultimately explain why, in a given institutional context, a law should be subject to modification with respect to its validity, meaning or applicability to particular cases.