Currently, in the legal doctrine of Germany, a heated discussion continues between representatives of the objective and subjective schools of interpretation. Opponents of the objective theory argue that the mistakenly called «objective» method, which largely supplants the will of the legislator, leads to the fact that from a rule of law based on the principle of separation of powers, Germany turns into a «state of judges». The purpose of this work is to study the content and topical problems of objective and subjective theories of interpretation of law in the modern German legal doctrine. To achieve this goal, the following tasks are being solved: the analysis of the content and structure of theories of interpretation in the modern legal doctrine of Germany is carried out; defines the distinction between the concepts of interpretation (Auslegung) and development (Rechtsfortbildung) of law; analyzes the position of the Federal Constitutional Court of the Federal Republic of Germany on the choice of the method of interpretation; the position of German legal scholars on the admissibility of «judicial law» is analyzed. In the course of the study, the following methods were used: analysis and synthesis, hermeneutic, comparative method. As a result of the study, it was possible to come to the following conclusions: 1) in contrasting the subjective and objective theories of the interpretation of normative legal acts in the modern German legal doctrine, the complex difference between the interpretation (Auslegung) and the development of law (Rechtsfortbildung) is considered, for the substantiation of which changing semantic theories are used, which are based not only on a methodological problem, but also, possibly, a different understanding of the Constitution and ideas about the tasks, as well as the boundaries of jurisprudence. Subjective theory attaches decisive importance to the regulative will of the legislator, the correct method of interpretation according to this theory is to first investigate the historical prescription and purpose (Zweck). The objective theory, on the contrary, proceeds from the idea that the law from the moment of publication «breaks away» from the legislator and henceforth is independent, so that the will of the rulemaker no longer matters; 2) the need for a clear delimitation of the judicial development of law from interpretation. The limitation of judicial possibilities in the interpretation and development of law lies in the fact that they must be carried out according to the accepted rules of interpretation. The established methodology, that is, the formal correctness of the trial, provides, to a certain extent, confidence in the material correctness of the decision and prevents arbitrariness.
Read full abstract