Non-Originalism Differently: Obligation of the Legislator to Respond to Changing Conditions

Result code in IS VaVaI

<a href="https://www.isvavai.cz/riv?ss=detail&h=RIV%2F00216224%3A14220%2F18%3A00104175" target="_blank" >RIV/00216224:14220/18:00104175 - isvavai.cz</a>

Result on the web

<a href="http://ppuam.amu.edu.pl/uploads/PPUAM%20vol.%208/15%20Kokesowa.pdf" target="_blank" >http://ppuam.amu.edu.pl/uploads/PPUAM%20vol.%208/15%20Kokesowa.pdf</a>

DOI - Digital Object Identifier

<a href="http://dx.doi.org/10.14746/ppuam.2018.8.15" target="_blank" >10.14746/ppuam.2018.8.15</a>

Result language

angličtina

Original language name

Non-Originalism Differently: Obligation of the Legislator to Respond to Changing Conditions

Original language description

The question that the paper answers is formulated through reflections on the issues of non-originalism. Non-originalism refers to an approach to the interpretation of the Constitution where the text of the Constitution adapts to new conditions without any formal change. This approach is applied by courts which, in the light of new circumstances, interpret the Constitution in a different way. The question is whether the same approach should be applied also by the legislator. Should the legislator himself monitor whether the Constitution has changed in substance as a result of changes in society and that some existing statutes thus have become unconstitutional? The paper concludes that the legislator has an obligation to monitor and respond to such changes by amending or abolishing certain statutes or by adopting new ones. If the legislator fails to respond, then his behaviour – inaction – is unconstitutional. However, the paper does not claim that the legislator must respond to all the changes in society, but only to those that are significant and obvious. The legislator is understood as an institution, not as a member of the legislative body (based on the theory of the legislative intent). However, the institution of the legislator is a human creation and composed of individuals, and it is their knowledge that makes up the knowledge of the legislator. And it is precisely their possibilities that determine the boundaries of what the legislator should know. In this text, the creation of law is understood as communication between the legislator, who is the author of statutes, and public bodies, who interpret and apply them. As with any communication, context is what determines it. The legislator's obligations are derived from the content of the context, its function, and its essential position in communication.

Czech name

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Czech description

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Type

J_ost - Miscellaneous article in a specialist periodical

CEP classification

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OECD FORD branch

50501 - Law

Project

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Continuities

S - Specificky vyzkum na vysokych skolach

Publication year

2018

Confidentiality

S - Úplné a pravdivé údaje o projektu nepodléhají ochraně podle zvláštních právních předpisů

Name of the periodical

Adam Mckiewicz University Law Review

ISSN

2450-0976

e-ISSN

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Volume of the periodical

8

Issue of the periodical within the volume

1

Country of publishing house

PL - POLAND

Number of pages

20

Pages from-to

217-236

UT code for WoS article

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EID of the result in the Scopus database

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