METHODS OF LEGAL INTERPRETATION, LEGITIMACY OF JUDICIAL DISCRETION AND DECISION-MAKING IN THE FIELD OF THE POLITICAL: A THEORETICAL MODEL AND CASE STUDY

Rafał Mańko

Abstract


This article examines, on the one hand, the relationship between methods of legal interpretation used by judges, and on the other hand, the legitimacy of judicial discretion and the impact of judicial decisions upon structural social antagonisms (known as ‘the political’). The paper explores these matters by means of a case study, namely, the judicial activity of the European Court of Justice (‘Court’). The article posits a direct correlation between the method of interpretation chosen by the court, and the legitimacy of its discretion as well as the level of decision-making with regard to the political. Accordingly, if the Court chooses a linguistic method of interpretation, adhering to the objective will of the treaty-makers and legislators, the legitimacy of a decision has more weight, and the extent of judicial decision-making in the field of the political is correspondingly lower. However, this is not possible due to the general features of legal language, and especially specific features of the language used in European case law since the judge is unable to decide cases solely on the basis of the language of legal texts. This creates a need for the judge to arrive at a decision, which must be legitimised on the basis of the axiological choices made, and interests protected. To this end, a tentative normative theory of interpretation for the Court is proposed.

Keywords


legal interpretation, legitimacy, the political, social antagonisms, substantive justice, ECJ

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DOI: https://doi.org/10.13165/j.icj.2020.12.001

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