Misunderstandings happen all the time. Imagine you are texting a friend to make dinner plans and she suggests you meet ‘next Saturday’. If we interpret her message literally, we would take it to mean the next Saturday occurring in the calendar. But colloquially, ‘next Saturday’ refers to the Saturday the following week.
Although the meaning of a sentence might seem straightforward to us, language is always open to interpretation - which can lead people to arrive at different conclusions. Similarly, the way we interpret texts changes over time based on evolving social and ethical norms.
So how do these considerations apply to the written law?
For people to work together on a community scale, we need rules about how we are supposed to behave with each other. When everyone is on the same page, it is easier to get things done. But for this to be effective, we should all have a shared understanding about what the law says.
Figuring out the meaning of the law is easier when it is written by our contemporaries - but many laws still in effect today were written a long time ago. Take constitutional law as an example, which embodies the fundamental principles by which a nation is governed. Most countries’ constitutions were written when the state was formed, and are many decades (if not centuries) old. How can legal texts written during a time unrecognisable to ours remain relevant in modern society?
This is where judicial interpretation plays an important role.
What is judicial interpretation?
Judicial interpretation is the way in which the judge understands the meaning of the law. When both sides present their case to the court, the judge will rely on their interpretation of the law to decide which side should win.
Judicial interpretation has played a huge role in the evolution of human rights law. Human rights standards and treaties and constitutions are by design not very detailed, leaving lots of scope for interpretation and flexibility. This gives judges the possibility to interpret law to accommodate changes in society and social norms. Because of this flexibility, judicial interpretation has played a huge role expanding human rights law.
As impartial figures, judges shouldn’t rely on their personal or political beliefs when reaching a decision. Their job is to objectively apply the law based on the case before them. When deciding whether a particular law applies to the case or how it should be applied, judges will rely on a method of judicial interpretation.
How a judge interprets the law can have a profound impact on society.
Supreme courts can overturn previous decisions or laws made by their legislature via a process called judicial review if the law is incompatible with higher ranking laws such as the constitution or international law.
The significance that these decisions can for individuals was abundantly clear in the United States when the Supreme Court, with a majority of conservative-leaning, Republican-appointed judges overturned the landmark decision in the Roe v Wade case, which first established a constitutional right to abortion. In the Roe v Wade decision the court found that the constitutional “right of privacy” gave women the right to decide themselves choose to have an abortion, and that it was not the role of the government to interfere in such personal decisions. This meant that all uterus-holders in the U.S. had a right to abortion, which prevented individual states from introducing legislation making abortion illegal. However, once the court overturned this decision there was nothing preventing states from introducing legislation restricting abortion. Following this decision, 1 in 3 women in the U.S. lost access to nearly all elective abortion because of how the court interpreted the law.
Judicial Interpretation by European Courts
Turning to Europe, how is judicial interpretation applied in European Union courts?
EU treaties (unlike the EU Charter) contain no instructions about which interpretative method should be applied, nor in which order. Free to choose of their accord, the European Court of Justice (ECJ) relies on classical methods of interpretation, which are also recognised by national courts: literal interpretation, contextual interpretation, and teleological interpretation (explained in more detail below).
Human rights standards in European treaties tend not to be overly detailed, which has allowed the European Court of Human Rights (ECHR) to act as an engine of human rights development. There are a number of landmark decisions handed down by the ECHR which changed the landscape of human rights in Europe to better reflect the realities and attitudes of EU citizens.
Examples of how judicial interpretation expanded human rights in Europe
In Lopez Ostra v. Spain (1994) and Guerra and others v. Italy (1998), the ECHR expanded Article 8 of the European Convention on Human Rights (Right to respect for private and family life, home and correspondence) to include environmental rights. This was in response to a lack of domestic protection to protect the rights of the applicant and an increased international focus on environmental protection after the Chernobyl disaster.
ECHR judges can also factor in international trends when interpreting European law, which led to an extension of the rights the LGBTQIA+ community. During the period in the late 90s and early 2000 transsexual people in Europe enjoyed few rights and legal recognition, and there was little European agreement on the issue. In Christine Goodwin v. the United Kingdom (2002) the court acknowledged an international trend of increased social acceptance of transsexual individuals and legal recognition of their new gender identity following surgery. The Court ruled that the United Kingdom had failed to respect Ms. Goodwin’s Article 8 rights as she continued to be labelled as a man in government records, and was denied advantages she was entitled to as a woman.
In 2010, Article 14 of the Convention which prohibits discrimination was broadened in Kozak v Poland (2010) to recognise that LGBT+ couples should have equal rights. In its judgement the court acknowledged the fluid nature of the Convention: “The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions.”
Right of access to courts
Airey v Ireland (1979) provided for a right to free legal aid. The case concerned a woman who was unable to obtain a judicial separation order from her abusive husband because she lacked the funds to pay for a lawyer. The ECHR found that in order for citizens to be able to effectively exercise their right of access to courts, they required free legal aid.
The rule of the ECJ in Defrene v Sabena (1976) (1976) was a huge step forward for gender equality due to the landmark judgement which established that women are entitled to equal treatment in the workplace. The case concerned a woman who worked as a flight attendant and was paid less than her male colleague who did the same work. This decision marked an expansion of Article 119 of the Treaty of the European Community (equal pay for equal work) so it was enforceable between private parties - rather than merely between individuals and the government.
Judicial interpretation has also been used to expand minority rights. In Ostrava, Czech Republic Roma children were placed into special majority-Roma schools where they followed a more basic curriculum and were separated from the wider community. To make it easier to prove that the Roma children were experiencing indirect discrimination, in D. H. and Others v. the Czech Republic the ECHR loosened the evidence rules. This resulted in the Court ruling that the special schools discriminated against the Roma children’s right to education.
The ECHR also broadened Article 4 of the Convention, which prohibits forced labour and slavery, to include domestic slavery. This stemmed from the Court’s acknowledgment in Siliadin v. France (2005) that modern slaves are domestic migrant workers, usually female, who travel abroad to work in private households in Europe.
Methods of Judicial Interpretation: European Court of Justice
1. Textualism (Literal Interpretation)
Also known as literal interpretation, textualism holds that the meaning of a text is contained within its words. If it is clear from reading a sentence what a reasonable person would understand is being communicated to them, then we should accept this “plain meaning” without needing to rely on more convoluted methods of interpretation. It underlines the judge’s role as the enforcer of the written law and minimizes their role interpreting or creating law.
As mentioned above, the meaning and outcome of a particular law should be clear, otherwise this leads to confusion about how it should be implemented. This is what is meant by the principle of legal certainty, which applies to national and international law. Textualism lends itself to the principle of legal certainty; when we interpret the law according to its plain meaning, this increases the predictability of European Court of Justice judgments.
However, the downside of literal interpretation is that in some situations it can result in an outcome that was not intended by the law because it is unreasonable or unjust.
2. Contextual Interpretation
Contextual interpretation asks us to look beyond the words of a text and to examine the context in which the law exists. This interpretation has two possible perspectives:
A. Systemic interpretation
The ECJ can look inward and consider the EU law provision in question as being a cog in the system, and ask which interpretation makes the most sense based on how this law should function as part of the overarching system. This method of interpretation assumes that the legislator is rational and emphasises the effect a law will have when it is put into practise. The aim of this is to bring more consistency to EU law and to avoid an interpretation which clashes with the broader system.
B. Travaux Préparatoires (preparatory work)
Alternatively, the ECJ can consider what the legislators (the Commission, the Parliament, and the Council) intended by looking at what they said during negotiation. This can be accessed from preparatory documents produced during the various stages of the legislative and budgetary process. It is important to note that the interpretation of EU law can only be based on documents which are accessible to the public.
This type of interpretation has traditionally been met with suspicion and historically its use by the ECJ was limited for several reasons, including a dissatisfaction with the level of precision and clarity of the documents themselves and the fact that not all preparatory documents were publicly available. However, this is gradually starting to change. As access to more documents is granted to the public, the use of preparatory documents is expected to become increasingly important in the years to come.
3. Teleological interpretation
Teleological interpretation has been very important for EU law. It looks at the objective of the law, considering the purpose, values, legal social and economic goals it aims to achieve. It is regarded as the method of interpretation relied on most heavily by the ECJ, who relied on it to establish that EU law had to be in line with human rights standards. Therefore, any EU laws that were incompatible would be invalidated by the ECJ. Although this was no longer relevant once the Charter of Fundamental Rights of the European Union came into force, this was a major step forward to ensure the human rights of EU citizens were respected.
Typically, EU treaties (primary law) are drafted using broad terms and embody general notions, whereas secondary EU law (regulations, directives, decisions, recommendations) is highly detailed and precise. The ECJ harmonizes the generality of EU primary law with the technicality of EU secondary law by considering the aims and objectives of EU treaties. Due to its focus on the effect and purpose of a law, teleological interpretation and systemic interpretation are often interlinked.
The beauty of this method is that it allows the judge to take technological and social advancements into account, so older laws are interpreted in law with changing social norms. For example, the meaning of marriage and family can be expanded to include LGBTQIA+ families, whereas it originally only referred to a union between a man and a woman.
The right to privacy of correspondence originally only applied to letters, however in line with advancements in technology, this was then interpreted to include phone and later email. Similarly, as most of our personal information is shared digitally, the right to privacy was expanded to what we now call data protection.
How does judicial interpretation impact how the law is applied?
In theory, the judiciary should be non-partisan adjudicators who rise above the politics of the government in power and maintain the checks and balances between the different branches of the state. This ensures that autocratic governments can’t abuse their power for their own benefit, such as enriching themselves and their friends using taxpayers' money.
A judge should not make decisions based on their own political beliefs, nor should the sitting government exert political influence. A corrupt government can easily exploit the law to immobilize their critics by fabricating false charges or introducing hostile legislation. The separation of powers between the judiciary and government is intended to safeguard citizens from this type of government abuse by giving them legal protection if they have been treated unfairly. Free courts strengthen democracy because it ensures that political leaders act within the law and do the job they were elected to do - use state resources to meet the needs of the people, rather than for their own personal advantage.
Although judges should be non-biased when handing down their judgments, it doesn’t mean that the outcome will always be the same. Individual judges may interpret the law differently based on the method of interpretation they apply or how they construe certain legal terminology.
Judicial independence as a cornerstone of the rule of law: Hungary + Poland
As a human rights organisation, the erosion of judicial independence in Hungary and Poland – a cornerstone of the rule of law – has been a major concern for Liberties. In our annual rule of law report, our member organisations in Hungary and Poland respectively reported blatant political influence over the judiciary.
These controversial judicial reforms, such as increasing the powers of the President of National Judiciary Office (a position appointed by Parliament) as seen in Hungary, or giving Poland’s justice minister powers to appoint – and then fire – judges to higher courts, undermine the checks and balances function of the courts.
That's why international standards, like those promoted by the Council of Europe, press countries to have a way of appointing judges that minimises partisanship - for example by having judges nominated by their peers rather than politicians or requiring multi-party support for judges.
Captured courts exploiting judicial interpretation: minorities at risk
PiS (Law and Justice party in Poland) or Fidesz (Hungarian Civil Alliance party) didn’t go to all this effort for nothing – they understood that exerting pressure on the judiciary would pave the way for them to introduce legislation targeting marginalised groups, which otherwise would have been deemed unconstitutional. Legal texts by nature have a degree of flexibility built into them so they can adapt to evolving social norms. But that flexibility can be exploited if a captured court is happy to rubber stamp any legislation introduced by the government.
According to political commentators, with the judiciary in Poland under the grip of the government, you are no longer guaranteed a fair trial free from political influence. Since Orban’s government has been in power a whole raft of hostile legislation has come into effect, such as a law threatening prison sentences for people assisting asylum seekers which was upheld by Hungary’s constitutional court in 2019. His government has also brought in anti-LGBT legislation as well as legislation criminalizing the provision of assistance to homeless people.
According to a former judge in Hungary, while most cases won’t be impacted by the judicial reforms, cases of a politically sensitive nature would be heard in the Supreme Court by a “loyal panel of judges who will make decisions in favour of the government”. He went on to say that minorities, NGOs and media outlets would be most affected.This is why Liberties and our member organisations monitor governments’ behaviour in our annual rule of law report, and why we pushed the EU to develop the rule of law conditionality mechanism, which was triggered against Hungary in April.