Subjective or Objective Legislative Intention: An Australian/German Perspective

Abstract

Abstract ‘Legislative intention’ as the aim of statutory interpretation has attracted increased attention in the Australian High Court, reinvigorating scholarly attention on the elusive concept. A subjective approach regards it as having an empirical reality. The competing objective view denies any conceptual connection to empirical circumstances and demotes it to a metaphor for the proper application of rules of statutory interpretation. This antagonism prevails in civil law jurisdictions as well. In Germany specifically, it goes back to the 1830s. The article juxtaposes the two local debates so as to mutually provide an additional perspective on the subject matter that can inspire future cross-system discourse. It highlights how similar arguments from both theoretical camps have formed in the two countries over time. And it not only documents striking similarities in how Australia’s and Germany’s highest courts declared commitment to an objective approach but it also reveals contrary curial trends that have most recently emerged.