Evolutionary (dynamic) interpretation of legal norms in the context of doctrinal views

Vitalii Serediuk^*, Illya Shutak^**, Ihor Onyshchuk^***

Evolutionary (dynamic) interpretation of legal norms in the context of doctrinal views****

DOI: 10.26350/18277942_000153

Summary: 1. Introduction. 2. Materials and Methods.                    3. Results. 4. Discussion. 5. Conclusions.

1. Introduction

For modern legal systems, the interpretation of legal norms plays an extremely important role because, during the period of major transformations in public relations, there are also changes in the understanding of legislative acts and regulations, especially those that were adopted 50 years ago. The issue of applying an evolutionary (dynamic) interpretation of legal norms is not new, but it is still extremely controversial and relevant. Ultimately, it is the use of such an approach to the interpretation of the law that allows adapting legislative acts at all levels to real-life circumstances and the prevailing views of society. The process of interpretation consists not only in clarifying the formal meaning of legal terms and expressions but also in a deeper understanding of the fundamental principles of law, which correspond to the modern needs of society. Therefore, the study of dynamic interpretation, its content, and its features will allow understanding the norms of law outside the textual content and through the prism of objective perception of the realities of today.

Some papers that would fully cover this issue show that the main issue with the study is how poorly understood the topic of evolutionary (dynamic) interpretation is. Due to the biased attitude towards this method of interpretation in the post-Soviet space, separate scientific publications devoted to highlighting dynamic interpretation in the sense that prevails in countries with the Anglo-American legal system only recently began to appear^[1].

This issue was investigated by foreign and Ukrainian researchers. In particular, O.V. Lukyanchuk^[2] conducted a general theoretical analysis of the problems of interpretation of the law. It identified the importance of systematic and methodological interpretation of legal norms at all levels and raised issues of static and dynamic approaches to the interpretation of legal norms. Researcher G. Vidiga^[3] considered the issues of evolutionary interpretation in international law. The author studies in detail the very essence of evolutionary interpretation and notes that this type of interpretation is inevitable and natural. The role of judges in the implementation of interpretation and the use of evolutionary interpretation as a law enforcement tool are also covered.

I. Rumadan^[4] considers the evolutionary approach in the interpretation of legal values and the problems of customary law in the activities of the judicial system. German researcher C.R. Brunschwig^[5] investigated the legal design and legal visualisation. The author considered the problem of how the visualisation of legal norms affects the understanding of the law itself. Researchers N. Deitelhoff and L. Zimmermann^[6] examined the dynamics of the reliability of international legal norms, factors of reducing the strength, aspects of legal understanding, and the correspondence between the meaning of the law and its authority for society and the state. P. Lacki^[7] study analyses the model of European consensus as a basis for using a dynamic interpretation of the provisions of the European Convention on Human Rights. The researcher notes that the consensus model is based on elements of positivism and believes that the evolutionary interpretation reflects the currently dominant social axiological views, which refer to the philosophical or ethical perspectives that individuals or societies hold regarding values and their role in social life.

The purpose of the study is a deep theoretical examination of the concept and features of evolutionary (dynamic) interpretation of legal norms from the perspective of various doctrinal views, determining the positive and negative aspects of using this approach to the interpretation of law. In addition, the goals are:

-                to determine the role and importance of dynamic interpretation in ensuring the effectiveness of legal norms;

-                to justify the need to use such an approach in the interpretation of Ukrainian legislation;

-                to review the dynamic interpretation on the example of real cases, in particular, on the example of decisions of the European Court of Human Rights (ECHR).

2. Materials and Methods

For a complete and detailed study of the subject, a number of scientific papers and publications describing various views and approaches to the implementation of evolutionary (dynamic) interpretations of legal norms were taken as a theoretical basis. A number of general theoretical textbooks were also considered, which provide a general understanding of interpretation and define the specific features of sources of law in countries with different legal systems. The normative basis was the decisions of the ECHR and the Constitutional Court of Ukraine (CCU), and the Law of Ukraine “On the Ratification of the Convention on the Protection of Human Rights and Fundamental Freedoms of 1950. The First Protocol and Protocols No. 2, 4, 7, and 11 to the Convention”^[8] and The Law of Ukraine “On the Constitutional Court of Ukraine”^[9].

The methodological basis of the research is a number of general theoretical scientific methods, in particular: analysis and synthesis, induction and deduction, analogy, comparison, and generalisation. The formal-logical method was the most important one. It was used to look into the main ideas behind evolutionary interpretation of legal norms, figure out the main features and benefits of dynamic interpretation, and do consistent research on laws and court decisions. Through the historical-legal method, the genesis and development of the idea of dynamic interpretation of law and the decisions of the ECHR were investigated, which initiated the practice of evolutionary interpretation of the norms of the Convention on Human Rights. Using the method of analysis, the effectiveness and expediency of using a dynamic approach in the process of interpreting legal norms were determined. The analysis of the decisions of the ECHR in the context of the use of evolutionary interpretation was conducted, and the influence and causal relationship between the interpretation of the norms of the ECHR law and national legislation was determined.

In addition, various doctrinal views on the interpretation of law in different legal systems were analysed. Using the synthesis method, a combination of the main features of dynamic interpretation was conducted, and it was defined as a separate type of legal interpretation. The theory of dynamic interpretation is examined in relation to various methods of legal interpretation. A comparative analysis is conducted to highlight the distinctive features of dynamic interpretation compared to other methods. These distinctive features include its focus on dynamic changes in public relations, responsiveness to shifts in public opinion, and application to outdated formal norms. Induction and deduction methods were also used. By employing induction, the principles and methods of applying the evolutionary approach to the interpretation of law were derived through the analysis of individual features and dynamic interpretation. Deductive reasoning based on a full understanding of the general patterns of legal interpretation was used to figure out what the evolutionary interpretation of legal norms is all about and how it works.

Through the concretization method, independent theories and doctrinal views were investigated that justify or refute the need to use an evolutionary (dynamic) interpretation of law. Through analogy, the analysis of approaches to interpretation in different legal systems and at different legal levels was conducted, from the fundamental principles that consolidate human rights to ordinary norms that consolidate narrow legal relations in their content. Using the generalisation method, the main features of this approach to interpretation and the role of its use in law-making and law enforcement activities were determined. Summarising similar opinions of various researchers, the essence, signs, and importance of this approach for the development of legal interpretation activities were clarified.

3. Results

The legal system is able to perform its regulatory function if a unified and systematic approach to understanding the norms of the law is used. It is the interpretation of legal norms that plays a key role in effective law enforcement because, without understanding the true will of the subject of law-making, it is impossible to understand the meaning of the law norm and apply it correctly. There are different approaches and ways of interpreting legal norms; in particular, one of the most controversial and debatable is the evolutionary (dynamic) interpretation of legal norms. This approach is the opposite of static interpretation and means the interpretation of legal norms, the content of which changes in accordance with the realities of the time. In the Soviet Union, a static approach to interpretation prevailed, reflecting a policy of rigid formalism in which any deviation from the content of the norm was unacceptable. The law was devoid of flexibility and was based on the principle of strict compliance, regardless of any factors^[10].

However, as new social legal relations arise, the law is also constantly evolving. In the course of interpreting norms, there has always been a dilemma: whether it is necessary to understand the legislative prescription subjectively, that is, attach the importance that the legislator invested, or give preference to an objective approach, that is, give the norm the meaning that it has acquired over time due to objective circumstances^[11].

There are different opinions about the very nature of dynamic interpretation. On the one hand, evolutionary interpretation is an inevitable independent process because social relations are in constant development, so the understanding of the rule of law is changing and adapting to a new worldview^[12]. On the other hand, law enforcement entities deliberately change and interpret the norms of the law to bring them in line with objective circumstances^[13].

Legislative, administrative, and judicial bodies can conduct the process of making legal decisions and creating legal norms, according to evolutionary (dynamic) interpretation of law. Thus, a dynamic process of rulemaking takes place and creative judgement is conducted, due to which gaps in law can be closed. This type of interpretation and rulemaking is more inherent in the Anglo-American legal system, where the main source of law is judicial precedent. In countries with Romano-Germanic legal systems, the dynamic interpretation of legal norms causes many disputes and doubts^[14]. In the post-Soviet space, the attitude towards the evolutionary type of interpretation of legal norms is often negative because a certain flexibility in understanding certain legal positions could lead to abuse and manipulation. Today, in the context of the even more active development of society, it becomes clear that the use of dynamic interpretation of legal norms is an inevitable and natural process that allows for more effective protection of human rights and interests in a country with any legal system^[15].

Since the norms of law are not perfect and universal, specialists who are professionally proficient in legal terminology usually interpret certain norms that require additional explanation and interpretation. Therefore, the nature of dynamic interpretation is closely related to the concepts of the letter of the law and the spirit of the law, or the differences between formal and actual content. Ultimately, not always what is formally expressed in the rule of law means the same in reality. This approach is not new and has been used since ancient times. For example, dynamic interpretation was used in ancient Rome and mediaeval South and Southeast Asia. Historical experience shows that evolutionary (dynamic) interpretation of legal norms becomes particularly relevant in periods of economic or political crises when an expanded or narrowed interpretation of outdated legal norms is necessary^[16].

A number of criteria should be mentioned that distinguish it from other types of interpretation to determine the features of evolutionary interpretation. The interpretation of a dynamic phenomenon that depends on various circumstances of human existence must consider changes in legal practice, public and scientific opinion. However, only changes in the social context in which consensus has been reached should be considered. This type of interpretation is used when the law is outdated but still formally remains the source of ^[17]. Researcher I.V. Sukhodubova^[18] defines the essence of dynamic interpretation as the process of adapting a legal act to the changes that occur in public relations. A rather conservative approach is that the interpretation of law should serve the purpose of establishing the exact content of a formal norm without the right to deviate from the content of legal prescriptions.

The features of dynamic interpretation include the fact that the object of interpretation is precisely the spirit of the law, which is determined by current political, economic, and social conditions. The essence of the norm can evolve over time and change under the conditions of real life. This approach ensures the adaptation of the norms of law to specific historical conditions of public life and the withdrawal of the spirit of the law from the textual content of the rule of law. The use of this approach increases the role of law enforcement agencies in the mechanism of legal regulation of public relations^[19]. Notably, to distinguish between law-making and law-interpretation activities, interpretation should be conducted within specific limits. This feature concerns the Romano-Germanic legal system, where the main source of law is a legislative act^[20]. Ultimately, it is difficult to find the fine line that would separate the creation of a completely new norm from the interpretation of the old norm in a new way. Therefore, the principles, criteria, and procedural form of interpretative practice play a crucial role in establishing these boundaries^[21]. Evolutionary (dynamic) interpretation is designed to eliminate discrepancies between legal norms, conflicts, and inaccuracies. A dynamic approach explains evaluation concepts and outdated norms that have already lost their relevance. The subject performing legal interpretation must have a high level of professionalism and legal consciousness and form a new model of legal understanding. Usually, dynamic interpretation includes norms of increased stability, in particular the provisions of Conventions or the Constitution. Ultimately, the modern interpretation of such norms is crucial for lower-level legislation, and making textual changes is a complex process.

The evolutionary (dynamic) interpretation of such a jurisdictional body as the ECHR is widely used. Despite the fact that some researchers distinguish between the concepts of evolutionary and dynamic interpretation, the ECHR uses these terms in the same sense. The ECHR is defined as a living instrument, which has formed the basis of its doctrine since its inception. The practice of dynamic interpretation was initiated in the case of “Tyrer v. The United Kingdom”^[22]. The essence of this case was that a 15-year-old teenager was subjected to physical punishment in the form of 15 blows with rods. The European Court of Justice has recognised that such violence is a crime against human dignity. The British judge did not agree with this, noting that such punishments are the norm in the value system in which he grew up. However, the ECHR did not agree with this and issued a decision stating that the Convention for the Protection of Human Rights and Fundamental Freedoms is a living instrument and should be interpreted in the light of today, and such types of physical violence are unacceptable in modern times. In the case of “Stafford v. The United Kingdom”, the ECHR stressed that the court must consider changing circumstances and respond to any consensus that arises, considering the need to comply with standards^[23]. It is consensus that plays a key role in evolutionary (dynamic) interpretation and justifies its application.

For the legal system of Ukraine, the evolutionary interpretation of the decisions of the ECHR and the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms is important since, back in 1997, the Verkhovna Rada adopted the Law of Ukraine “On the rationalisation of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The first protocol and protocols No. 2, 4, 7, and 11 to the Convention”, according to which the norms of the Convention and the decision of the ECHR are the source of law in Ukraine^[24]. The body that conducts the official interpretation of the norms of the Constitution in Ukraine is the CCU, the decision and legal position of which are binding on all other parts of the judicial system. In countries with Romano-Germanic legal systems, judicial precedent is not an official source of law, but in practice, a well-established judicial practice still plays an important role in making a court decision. Therefore, the legal position of the CCU is often decisive, although it is often contradictory. Notably, the approach to the interpretation of norms implemented by the CCU is debatable since decisions often contradict each other, and at this stage, a specific method of interpretation that explains constitutional norms has not yet been chosen. The CCU has repeatedly changed its legal positions, and a striking example is the decision of the CCU on social benefits and guarantees. The decision No. 5-rp/2002 established that benefits, compensations, and guarantees are a component of the constitutional right to ensure a standard of living, and narrowing the content or scope of this right is not allowed^[25]. However, a decision of 26 December 2011 No. 20-rp/2011 indicates that socio-economic rights are not absolute^[26]. The state has the authority to alter the procedure for exercising these rights. Thus, the CCU performs dynamic interpretation according to the economic situation and changes. Although there is no practice of evolutionary (dynamic) interpretation of the CCU in its pure form, this approach is developing and is widely used in national legal activities. By reviewing its own legal position, the CCU evolves and adapts the norms of law in accordance with generally recognised democratic legal principles^[27].

Given that dynamic interpretation is used to explain and adapt legal norms in most modern states with different legal systems, this approach to interpretation is as acceptable and relevant as possible. Ultimately, identifying the very content of the norm and its compliance with real circumstances is the key to the rule of law and respect for fundamental human rights, not only formally but also from a practical standpoint. The role and importance of a dynamic approach to the interpretation of legal norms are extremely important for law enforcement since, when making decisions by judicial authorities, professional interpretation provides an opportunity to make a decision that effectively protects rights and interests. Evolutionary (dynamic) interpretation corresponds to the very nature of the law, so it will always be used to avoid legal conflicts and inaccuracies.

4. Discussion

A lot of papers were read, and their content was meant to cover the idea and details of the problem of an evolutionary (dynamic) approach to interpreting legal rules in order to fully explain and look into this problem. In most of them, the dynamic interpretation of law is considered in the context of the application of this approach by the ECHR, and its decisions and legal positions are analysed, including the practice of applying them as sources of law in Ukraine. British, German, and American researchers consider the issue of different approaches to the interpretation of international norms. In addition, a substantial number of papers are devoted to the general theoretical examination and coverage of various approaches to the interpretation of legal norms in different legal systems.

U.K. Gulyam^[28] devoted a study to the issue of implementing the practice of the ECHR in the activities of courts in Ukraine. The author examines the problem of interpretation of the norms of the Convention on Human Rights, the use of consensus in the interpretation of the legal positions of the ECHR, the relationship between its positions and national legislation, and the practice of applying international acts in the judicial process. G. Marceau^[29] examines the problems of evolutionary interpretation of World Trade Organisation treaties. The scientist argues that various changes may occur from the moment of the conclusion of the treaty until the need for its interpretation, so an evolutionary or dynamic interpretation of the provisions of the treaty is most acceptable. The study considers different types of changes and forms different groups of transformations, which are considered through the prism of interpretation.

In the textbook by M. Bodig^[30], a detailed description of the field of legal science and a doctrinal and methodological basis for investigating the phenomena of law are provided. Due to this textbook, an understanding of the main concepts of legal research is formed and theoretical knowledge about the essence and types of legal interpretation is structured. Researcher A.S. Utama^[31] examines the interdependence of the dynamics of the development of law and society. The author notes that law is closely related to cultural, technological, and scientific changes, so, admittedly, it should be considered through the prism of objective, real changes in public relations. Researchers D. Tsarapatsanis and N. Aletras^[32] conducted a textual analysis of legal norms, defining methods of natural language processing and adapting legal terms to understand the true meaning of laws. The authors reflect on defining parameters for setting ethical boundaries for using neuro-linguistic programming techniques in the process of creating legal norms.

Most authors emphasise that dynamic interpretation of the law is an extremely effective and important approach to interpreting the norms of the law. The law must constantly meet the current needs of society, so it is variable and flexible in its definition. Evolutionary (dynamic) interpretation of legal norms is the best tool that allows for understanding fundamental norms without changing the formal content. This approach ensures the stability of the highest level of norms because it eliminates the need for textual transformations. Dynamic interpretation is one of the oldest ways to explain the norms of law and is also an organic way to adapt law to existing changes in public relations. In this study, as in other papers on this subject, the issue of defining the concept and features of dynamic interpretation of legal norms is considered. Various doctrinal views on the possibilities and prospects of using dynamic interpretation are investigated. The essence and nature of the evolutionary interpretation are also determined, and the application of this approach to explaining legal norms in a historical context is investigated. Evolutionary (dynamic) interpretation is analysed from the position of the ECHR and highlighted as an appropriate and effective way of interpretation, which has extremely great prospects for wide application in the national legal doctrine.

The differences in this study are that various theories of dynamic interpretation are considered, and the effectiveness and necessity of applying dynamic interpretation in the implementation of law enforcement activities are justified. Using the example of the decisions of the ECHR and the CCU, the real practice of using dynamic interpretation and its impact on court decisions are analysed. This approach is considered from the standpoint of expanding rights and guarantees, not vice versa. The importance and prospects of using an evolutionary (dynamic) interpretation of legal norms in the national legal doctrine are considered, and arguments are given that justify the use of this approach as a leading one for adapting legislative acts to the real needs of today. The main features and criteria for applying the evolutionary (dynamic) interpretation of legal norms are also defined.

The limitations of this study are that, despite considering several theories of interpretation, the concept of an evolutionary (dynamic) explanation of legal norms was investigated in the context proposed by the ECHR. Since Ukraine's legal system has started to move towards a model of European integration, the interpretation is thought about in terms of conceptual approaches that will help make more use of dynamic theories in the country's law. The specific features of the interpretation of international law were not sufficiently considered. In addition, dynamic interpretation was not considered from the standpoint of hermeneutics and legal technology but was investigated in the aspect of understanding law at a deep level from the standpoint of new public views. Given that this approach to the interpretation of legislative norms is used by most democratic states, it should be recognised that dynamic interpretation is one of the most acceptable forms of interpretation of law because the adaptation of legal norms to objective conditions avoids conflicts. Regardless of what legal doctrine prevails in the legal system, dynamic interpretation is always present to one degree or another because, one way or another, social relations are constantly developing and require new regulation. The interpretation is considered not just as a formal explanation of certain legislative provisions but as a general system of means and methods by which the basic principles and values of legal norms are clarified.

5. Conclusions

Findings from the study showed that out of all the theories and methods used to explain legal rules, evolutionary (dynamic) interpretation works best in real life because it tries to find the true meaning of a rule by using examples from everyday life. Today, there is a worldwide belief that dynamic interpretation is the most appropriate form of interpretation of legislation and is a factor in the rule of law. Despite the fact that this approach has only just begun to develop in post-Soviet countries, the evolutionary (dynamic) interpretation has already proved its effectiveness and expediency and deserves further research. Taking advantage of the experience of the ECHR, all member states that have ratified the Convention on Human Rights are also transforming the legal system, in which dynamic interpretation plays a leading role and is widely used in law enforcement practice. The prospect of further research is a detailed examination of individual methods and techniques of dynamic interpretation, processing the problems of interpreting law according to a dynamic approach.

The results of this study are of both theoretical and practical importance. This is important from a theoretical point of view because looking at different doctrinal views on the dynamic interpretation of law lets us fully understand what it means to use this method and figure out the rules and limits for using this interpretation of law in different legal systems. The practical importance lies in the fact that professional implementation of dynamic interpretation will allow adapting the norms of law to the needs of today, which is necessary in conditions of high variability in the legislative framework.

In the course of the study, the set goals were achieved. Various theoretical views on the concept and features of applying the dynamic interpretation of legal norms were investigated. The concept of a living instrument, which is the ECHR, was covered. In addition, the decisions of the ECHR were analysed, which clearly demonstrate and directly indicate the use of evolutionary (dynamic) interpretation in practice. The issues of applying this approach to the interpretation of law in the national legal system, in particular the use of its CCU, were investigated.

Abstract:The importance of the subject lies in how evolving or new public relations can necessitate changes in legal norms, which are only effective when universally and accurately understood. The purpose is to examine in detail various doctrinal views on the evolutionary (dynamic) interpretation of legal norms, conduct its theoretical-legal analysis, determine the feasibility and effectiveness of applying such an approach to interpretation, and use an evolutionary approach in the doctrines of various legal systems. The formal-logical method is the primary means of examining the concept, essence, and various interpretations of legal norms. The outcome is a theoretical look at the evolutionary (dynamic) approach to interpreting legal norms, figuring out what those features are and how important they are in the context of different doctrinal views. The advantages of interpretation and its impact on the processes of law-making and law enforcement are investigated. It is identified that dynamic interpretation of legal norms is an important tool for adapting the law to existing realities for the implementation of effective protection of human rights, and it is also determined that legal norms can be flexible and can be established according to the needs of the time.

Keywords: legislative acts - European Court of Human Rights - textual content - judicial practice - sources of law

* Territorial Service Center No. 8049 of the Regional Service Center of the Main Service Center of the Ministry of Internal Affairs in the city of Kyiv, Kyiv, Ukraine (vitalii.serediuk@proton.me).

** King Danylo University, Ivano-Frankivsk, Ukraine (illya.shutak@outlook.com).

*** Constitutional Court of Ukraine, Kyiv, Ukraine (ihoronyshchuk4@ukr.net).

**** Il contributo è stato sottoposto a double blind peer review.

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