Originalism
Originalismus (English Originalism ) is a legal doctrine to the interpretation of standards. The term " Originalismus " itself originated in the U.S. constitutional law of the 1980s, although proposed by the Originalisten methods are already much older.
The originalistischen methods
There are two main streams of Originalismus who are defined by each other interpretation methods:
- The historical- teleological method (English original intent ). According to this method the decisive importance of a standard determined by the purpose to which it pursues its creators. This can be seen eg in legal writings of the past or parliamentary debate protocols. Clarence Thomas, Judge of the United States ( Supreme Court ) Supreme Court agreed with this attitude.
- The grammatical- historical method (English original meaning or textualism ). According to this method the decisive importance of a standard determined according to its terms, and that according to that meaning of the words that would ascribe to them a reasonable person during the time when the norm. Antonin Scalia, also a judge at the Supreme Court, is the most prominent representative of this view.
Both varieties of Originalismus common is that retribution temporal design elements, so contemporary conceptions or the modern meaning of the words, are not taken into account.
Arguments for the Originalismus
To the main thing want the Originalisten, which are generally attributed to the conservative political camp, prevent the legal users in the wild - so the judges - usurp the powers of the law or constitutional legislator, by giving a different or another meaning of the norm than its original intent or understood, and thus actually change the substance of the standard itself.
After Originalisten considers the democratic separation of powers is safeguarded, since it is the task of the law or constitutional legislator, and not the judiciary to adapt outdated decrees by changes in the text new circumstances. It considers that legal certainty is thus created and prevents non-democratic " dictatorship of the judges " or "elite".
Arguments against the Originalismus
Opponents of Originalismus (generally from the left-liberal political camp ), however, are of the opinion
- That "the " opinion of the original legislative body could not be determined objectively,
- That just static and commonly held standards such as constitutions for a flexible interpretation demanded,
- That the "dead hand" of the past legislative body for the present time should not be determinative,
- That altered the meanings of words and sentences, which the majority of the people nowadays are familiar and accepted the request and subsequent changes in the prevailing doctrines would bring to expression. The Constitution then stand in line with the current views of what constitutes an element of democratic participation, which could be revoked by the legislature, if necessary,
- That the Originalismus a representative of the judicial activism is also: One reason that the legal text does not entirely reflect the intention of the ( manifesting itself ) sympathizers of a law or opinion of the people of yesteryear, could well be that for further regulations no majority was present in Parliament. Visionary or moderate parliamentarians would otherwise have denied the relevant consent decree because they would rather saw it that some matters are regulated by means of differing interpretations, and in consideration of the zeitgeist and progress. Because of this, who is accused of Originalismus to give the opinion of flows force already for the ratification date reflected the minority of the Parliament.
The methodological counterpart to Originalismus is sometimes referred to as "living Constitution" ( living constitution ) apostrophized. Representatives of this view include the Supreme Court as a liberal force - Judge Stephen Breyer and Ruth Bader Ginsburg.
Political significance of Methodenstreit
This methodological dispute is in the United States is of great political importance, especially against the backdrop of the 200 -year-old Constitution of the United States, which can be very difficult to change, and given the very powerful role of the Supreme Court as a constitutional court.
In the U.S. constitutional history, especially in the 20th century, significant constitutional changes were brought about by a very broad interpretation of the Constitution by the Supreme Court, particularly in the area of civil rights and the centralization by extending the powers of the federal government. A consistent turn of the Supreme Court to Originalismus with simultaneous task of the principle stare decisis would therefore result in extremis, that protected by the Constitution - and widely accepted in today's extent as applicable law - Fundamental rights at the level of the 19th or 18th century would fall, and that large parts of federal law would be repealed as unconstitutional competence.
Similar doctrines outside the U.S.
A line parallel to the method of " Originalismus " can be found in the constant case law of the Austrian Constitutional Court in the form of so-called " Versteinerungstheorie " (also: " Versteinerungsprinzip "). In public law, in particular constitutional law, therefore, is considered a special kind of historical interpretation, which emphasizes the importance of a term, which he had at the time of entry into force of the constitutional provision according to the state and the system then in force ( constitutional or ordinary law ) Legal, . It refers generally to a concrete Versteinerungszeitpunkt, namely 1 October 1925 ( the effective date of the relevant articles of the constitutional amendment of 1925). The Versteinerungstheorie is primarily used in the interpretation of the competence items, the organizational-legal rules and fundamental rights. (see Kreuzbauer, Legal interpretation methodology and gap filling)
- Constitution of the United States