How far do contemporary English and German judges go when they interpret national legislation? Where are the limits of statutory interpretation when judges venture outside the constraints of the text? Do these limits converge or diverge in both jurisdictions? Judicial Law-making in English and German Courts is concerned with the limits of judicial power in both legal systems. Judicial law-making occurs when judges restrict or extend the scope of application of a provision beyond or against the possible semantic meanings of the statutory language. The book addresses the often neglected relationship between statutory interpretation and constitutional law. It traces the practical implications of constitutional principles by exploring the outer limits of what courts regard themselves as authorised to do in the area of statutory interpretation. It critically analyses, reconstructs and compares judicial law-making in English and German courts from comparative, methodological and constitutional perspectives. It maps the differences and commonalities in both jurisdictions and then offers explanatory accounts for these differences and similarities based on constitutional, institutional, political, historical, cultural and international factors.
Chapter 2 of the book compares judicial law-making under conventional canons of statutory interpretation in England and Germany (conventional judicial law-making), i.e. judicial law-making in a purely domestic context without regard to European Union law or the European Convention of Human Rights. Despite existing parallels in the outer limits and techniques of judicial law-making in England and Germany, I show that considerable differences remain. In contrast to their German counterparts, English judges have not expressly recognised a judicial power to contradict or depart from the intention of the enacting Parliament. A German court that deviates from the intention of the enacting legislature does not necessarily infringe the outer limits of the judicial function. Compared to an English court, a German court can therefore take more “objective” factors of interpretation into account, and that increases the scope of permissible policy considerations. The distinction in the outer limits of judicial law-making in England and Germany is due to different constitutional settings: art. 20(3) German Basic Law as interpreted by the German Constitutional Court on the one hand and the UK constitutional doctrine of parliamentary sovereignty as understood in English courts on the other hand.
The default position in German courts in relation to judicial law-making is that it is a permissible function of the judge. That is not the case in English courts. Even in today’s climate of purposivism, I submit that the default position in England is that conventional judicial law-making is generally impermissible and only available in exceptional cases. The filling of gaps remains an exceptional use of judicial powers under conventional methods of statutory interpretation in England due to concerns of legal certainty under the rule of law and due to the doctrine of parliamentary sovereignty as traditionally perceived by judges. I also show in my book that the different default positions in both jurisdictions ultimately exist because of different constitutional doctrines that affect the outer limits of the judicial function. A consequence of the different default positions are different judicial attitudes towards judicial law-making. English judges have (or at least traditionally had) a stricter understanding of the limits of the judicial function vis-à-vis the legislature compared to their German counterparts. Stefan Vogenauer’s thesis that statutory interpretation in both countries is fundamentally uniform has to be qualified in the area of conventional judicial law-making.
Chapter 3 compares rights-consistent judicial law-making in both jurisdictions. I use the term rights-consistent interpretation to refer to (a) the interpretative obligation of English courts under s. 3(1) Human Rights Act 1998 and (b) the duty of German courts to construe national legislation in conformity with the fundamental rights enshrined in the German Basic Law. Chapter 4 compares the European legal duty of conforming interpretation (the Marleasing duty) in English and German courts. I argue in my book that a fundamental unity of statutory interpretation exists in English and German judicial practice in the sphere of rights-consistent and EU-conforming judicial law-making. A key reason for the considerable degree of convergence in both jurisdictions is that the UK constitutional framework has evolved, mainly due to modifications in the orthodox doctrine of parliamentary sovereignty. This has triggered changes in judicial attitudes towards judicial law-making and in the institutional relationship between the judiciary and the legislature. For example and as opposed to English conventional judicial law-making, I show that the default position for rights-consistent and EU-conforming judicial law-making in English courts is that judicial law-making is generally a permissible function of the judge. As a consequence, the constitutional settings and legal cultures in Germany and the UK have converged in both areas of judicial law-making. Widely assumed differences in the style of legal reasoning between common law and civil law jurisdictions do not exist in the context of rights-consistent and EU-conforming judicial law-making in English and German courts. There is no dichotomy between an allegedly systematic and deductive style in Germany and an inductive and facts-centred style that is driven by the circumstances of the individual case in England. Context is equally important in both jurisdictions.
A key result of my comparison of the techniques of rights-consistent and EU-conforming judicial law-making in both jurisdictions is that differences in terminology and classification, firmly anchored in historical context and in legal practice, are readily apparent. If we turn the focus to substance, however, it becomes equally apparent that English and German courts proceed on converging lines. The extent of the commonalities is quite significant. With regard to the outer limits of judicial law-making, I show that there are no significant differences in the way the highest English and German courts express and apply the outer limits of rights-consistent and EU-conforming judicial law-making. The extent to which the application of these limits is governed by formal legal reasoning, evaluative arguments and judicial discretion appears almost identical in both jurisdictions. I also argue that English and German judges possess an almost identical, considerable amount of flexibility and judicial discretion when applying the outer limits of rights-consistent and EU-conforming interpretation in an individual case. This finding demonstrates that English and German judges share a very similar understanding of the value of legal certainty in rights-consistent and EU-conforming interpretation. All in all, the differences in the interpretative powers of English and German courts that exist under conventional judicial law-making do not exist for rights-consistent and EU-conforming judicial law-making.
Looking into the future, the European Union (Withdrawal) Act 2018 domesticates the European legal duty of conforming interpretation. EU-conforming interpretation will retain an important role in statutory interpretation in the UK after Brexit. I argue that English courts should apply the same outer limits and techniques of conforming judicial law-making before and after exit day. Therefore, the main comparative findings of chapter 4 will continue to hold true after exit day for a comparison between (a) the European legal duty of conforming interpretation as applied in German courts and (b) the retained Marleasing obligation under the terms of the European Union (Withdrawal) Act 2018.
Posted by Dr Martin Brenncke, Lecturer Aston Law School
British Association of Comparative Law 
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