Q&A: Judicial Legislation
Judicial Legislation
Question
I heard a lecture of yours about intuition and the synthetic a priori problem, and how this problem is expressed on many levels (a fascinating lecture). Regarding judicial legislation, where you tried to resolve the question through intuition, I still didn’t understand how that can explain the fact that judges legislate (interpret) the laws in a way that fits exactly with their worldview (as you showed in several examples). Isn’t this decisive proof that they make use of the dry letter of the law (intuition) in order to interpret it according to their worldview?
I hope I phrased myself correctly and that the question was understood.
Thanks in advance
Answer
My assumption is that it is impossible to stick to the language of the law in its simple sense without interpretation. But I also argue that interpretation is not necessarily subjective. Still, you are right that there is a dependence on the judge’s worldview, and yet his interpretation is certainly not arbitrary and subjective, and there is also no alternative (because, as stated, interpretation is unavoidable).
Discussion on Answer
Indeed.
You are presenting it a bit too crudely. He interprets according to his understanding, and that includes components that depend on his views, but he is not necessarily aware of it. Sometimes he is. But to an outside observer it is clear that he is influenced by his views. By the way, that is also how it is in Jewish law.
So the interpretation of the law is a kind of mixture between his worldview (subjective) and an objective interpretation of the law?
Isn’t it correct to say that a judge has a certain worldview, and when he encounters the law he automatically interprets it according to his worldview, and because he is a judge who only interprets and does not legislate, he finds support for that in the law? My question is whether the judge really believes that his interpretation of the law is more necessary/reasonable than that of his colleague who has a different worldview, or not?