Interpretive legislation: comparative legal analysis

Abstract

The author tries to show and explain a rather controversial legal mechanism called "authentic interpretation” of legal norms or "interpretative legislation”. By showing a comparative overview of different legal systems in Romano-German and Common law families, the author wants readers to guess whether interpreting laws (statutes, by-laws) with retrospective power is purely a judicial task. Why have we gotten used to thinking this way, and what in the separation of powers thesis excludes lawmakers from the authority to interpret their laws? At the same time, it is mentioned that the retrospectivity of laws does not necessarily violate the rule of law requirements when it is aimed at lacuna in laws or fixing technical defects in law.
 Specific attention is paid to constitutional case law in different countries that classify the authority of abstract interpretation as a part of legislative power. Judicial deference as a doctrine developed by the US Supreme Court also described in this article. Having analyzed the experience of Slovenia, Croatia, Italy, Belgium, Australia and the USA, the author returns to Ukraine and shows some tendencies towards authentic interpretation, though not fully realized so far neither by the Supreme Court nor by Verkhovna Rada of Ukraine.
 There are many questions on how justifiable it is to employ the authentic interpretation and whether it is instead an ultima ratio than regular practice. On the other hand, taking into account the current state of development and complexity of legislation in all spheres of social life, there is a need not only for legal monitoring, but also for preventive interpretive measures to eliminate ambiguity in judicial practice, correct judicial errors in interpretation and prevent undermining of legislation by courts due to incorrect interpretation.