Judicial interpretation - Wikipedia Judicial interpretation From Wikipedia, the free encyclopedia Jump to navigation Jump to search Ways courts interpret laws, especially Constitutional laws Judicial interpretation Forms Constitutional interpretation Statutory interpretation General rules of interpretation Plain meaning rule Mischief rule Golden rule General theories of interpretation Living Constitution / Living tree / Living instrument Originalism (original meaning) Original intent (legislative intent, legislative history) Strict constructionism Textualism Purposive approach v t e Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review. For example, the United States Supreme Court has decided such topics as the legality of slavery as in the Dred Scott decision, and desegregation as in the Brown v Board of Education decision, and abortion rights as in the Roe v Wade decision. As a result, how justices interpret the constitution, and the ways in which they approach this task has a political aspect. Terms describing types of judicial interpretation can be ambiguous; for example, the term judicial conservatism can vary in meaning depending on what is trying to be "conserved". One can look at judicial interpretation along a continuum from judicial restraint to judicial activism, with different viewpoints along the continuum. Phrases which are regularly used, for example in standard contract documents, may attract judicial interpretation applicable within a particular jurisdiction whenever the same words are used in the same context. Contents 1 Basis for judicial interpretation 2 Frequently used vocabulary 3 See also 4 References 5 External links Basis for judicial interpretation[edit] In the United States, there are different ways to do judicial interpretation: Balancing happens when judges weigh one set of interests or rights against an opposing set, typically used to make rulings in First Amendment cases. For example, cases involving freedom of speech sometimes require justices to make a distinction between legally permissible speech and speech that can be restricted or banned for, say, reasons of safety, and the task then is for justices to balance these conflicting claims. The balancing approach was criticized by Supreme Court justice Felix Frankfurter who argued that the Constitution gives no guidance about how to weigh or measure divergent interests.[1] Doctrinalism considers how various parts of the Constitution have been "shaped by the Court's own jurisprudence", according to Finn.[1] Functionalism.[citation needed] Founders' Intent involves judges trying to gauge the intentions of the authors of the Constitution. Problems can arise when judges try to determine which particular Founders or Framers to consult, as well as trying to determine what they meant based on often sparse and incomplete documentation.[1] Originalism involves judges trying to apply the "original" meanings of different constitutional provisions.[1] To determine the original meaning, a constitutional provision is interpreted in its original context, i.e. the historical, literary, and political context of the framers. From that interpretation, the underlying principle is derived which is then applied to the contemporary situation. Former Supreme Court justice Antonin Scalia believed that the text of the constitution should mean the same thing today as it did when it had been written. A report in the Washington Post suggested that originalism was the "view that the Constitution should be interpreted in accordance with its original meaning — that is, the meaning it had at the time of its enactment."[2] "Meaning" based on original principles. Prudentialism discourages judges from setting broad rules for possible future cases, and advises courts to play a limited role.[1] Precedent is judges deciding a case by looking to the decision of a previous and similar case according to the legal principle of stare decisis, by finding a rule or principle in an earlier case to guide their judgment in a current case.[1] Strict constructionism involves judges interpreting the text only as it was written; once a clear meaning has been established, there is no need for further analysis, based on this way, which advocates that judges should avoid drawing inferences from previous statutes or the constitution and instead focus on exactly what was written.[3] For example, Justice Hugo Black argued that the First Amendment's wording in reference to certain civil rights that Congress shall make no law should mean exactly that: no law, no exceptions. Structuralism is a way judges use by searching for the meaning of a particular constitutional principle only by "reading it against the larger constitutional document or context," according to Finn.[1] Judges try to understand how a particular ruling fits within the larger structure of the entire constitution. Textualism primarily interprets the law based on the ordinary meaning of the legal text. Frequently used vocabulary[edit] Examples of phrases which have been the subject of judicial interpretation include: The words "arising out of" in relation to insurance policies [4] The phrase "direct loss and/or expense" within JCT construction contract terms and conditions.[5] See also[edit] Constitutional economics Constitutionalism Jurisprudence Rule according to higher law Separation of powers Statutory interpretation References[edit] ^ a b c d e f g John E. Finn (2006). "Part I: Lecture 4: The Court and Constitutional Interpretation". Civil Liberties and the Bill of Rights. The Teaching Company. pp. 52, 53, 54. ^ Blake, Aaron (February 1, 2017). "Neil Gorsuch, Antonin Scalia and originalism, explained". The Guardian. Retrieved February 1, 2017. ...the view that law laid down by the framers in the Constitution remains binding until we legally change it, such as through the amendment process.... ^ "The Judiciary: The Power of the Federal Judiciary", The Social Studies Help Center ^ Cook, S., What do the words 'arising out of' actually mean?, Barry Nilsson Lawyers, published 22 June 2012, accessed 18 December 2020 ^ Robertson Group (Construction) Ltd v Amey Miller (Edinburgh) Joint Venture et al, Inner House, Court of Session, 22 December 2005, accessed 18 December 2020 External links[edit] Quotations related to judicial interpretation at Wikiquote Course notes advantages/disadvantages of different approaches v t e Jurisprudence Legal theory Critical legal studies Comparative law Economic analysis Legal norms International legal theory Legal history Philosophy of law Sociology of law Philosophers Alexy Allan Aquinas Aristotle Austin Beccaria Bentham Betti Bickel Blackstone Bobbio Bork Brożek Cardozo Castanheira Neves Chafee Coleman Del Vecchio Durkheim Dworkin Ehrlich Feinberg Fineman Finnis Frank Fuller Gardner George Green Grisez Grotius Gurvitch Habermas Han Hart Hegel Hobbes Hohfeld Hägerström Jellinek Jhering Kant Kelsen Köchler Kramer Llewellyn Lombardía Luhmann Lundstedt Lyons MacCormick Marx Nussbaum Olivecrona Pashukanis Perelman Petrażycki Pontes de Miranda Posner Pound Puchta Pufendorf Radbruch Rawls Raz Reale Reinach Renner Ross Rumi Savigny Scaevola Schauer Schmitt Shang Simmonds Somló Suárez Tribe Unger Voegelin Waldron Walzer Weber Wronkowska Ziembiński Znamierowski Theories Analytical jurisprudence Deontological ethics Fundamental theory of canon law Interpretivism Legalism Legal moralism Legal positivism Legal realism Libertarian theories of law Natural law Paternalism Utilitarianism Virtue jurisprudence Concepts Dharma Fa Judicial interpretation Justice Legal system Li Rational-legal authority Usul al-Fiqh Related articles Law Political philosophy Index Category Law portal Philosophy portal WikiProject Law WikiProject Philosophy changes Retrieved from "https://en.wikipedia.org/w/index.php?title=Judicial_interpretation&oldid=994946286" Categories: Interpretation (philosophy) Legal reasoning Judiciaries Legal interpretation Hidden categories: Use American English from January 2019 All Wikipedia articles written in American English Articles with short description Short description matches Wikidata Use mdy dates from January 2019 All articles with unsourced statements Articles with unsourced statements from January 2013 Navigation menu Personal tools Not logged in Talk Contributions Create account Log in Namespaces Article Talk Variants Views Read Edit View history More Search Navigation Main page Contents Current events Random article About Wikipedia Contact us Donate Contribute Help Learn to edit Community portal Recent changes Upload file Tools What links here Related changes Upload file Special pages Permanent link Page information Cite this page Wikidata item Print/export Download as PDF Printable version In other projects Wikiquote Languages Български Čeština Deutsch Español 한국어 עברית Lietuvių Bahasa Melayu 日本語 Polski Русский Simple English Slovenčina Suomi Svenska 中文 Edit links This page was last edited on 18 December 2020, at 10:43 (UTC). 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