Textualism is the doctrine of statutory interpretation propounded by a small group of US federal court judges, including the late Justice Antonin Scalia. Whilst the doctrine has attracted a great deal of scholarly attention, few have considered its historical development. In this dissertation, textualism is analysed in order to uncover the core principles and sets of rules from which it is comprised. Then, the development of these principles and sets of rules is traced back through the treatises on statutory interpretation published in England and America in the Victorian era, which were well-known to and frequently cited by Justice Scalia. Textualism is revealed to be an Anglo-American doctrine that emerged over the course of the nineteenth century; and it was made explicit in the treatises on statutory interpretation, which developed via a transatlantic scholarly dialogue. The doctrine fell out of favour in the US as the nineteenth century drew to a close; and around the same time, the rule prohibiting recourse to legislative history, a core feature of textualism, became subject to significant judicial challenge in England. The matter was resolved by a landmark decision in 1906, after which time the doctrine became firmly entrenched in England until approximately the 1980s. Textualism's long tenure in England demonstrates how a doctrinal common law theory typical of the late Victorian era persisted for more than a century despite variations in judicial application of the rules from which the doctrine is comprised, criticism from within the legal community, and significant social change over time. The modern US revival of this doctrine is further testament to textualism's tenacity. Whilst many scholars have found the doctrine to be problematic, it has remained attractive to common law judges from the time of its emergence in the middle of the nineteenth century through to the present. This is so because textualism was developed and refined through doctrinal legal scholarship, and as a result, it is consistent with traditional common law modes of reasoning, and it is tailor-made to meet the needs of judges deciding cases.

In June 2007, the Court of Appeal in New Zealand disallowed the taxpayers appeal and decided that Trinity Scheme is a tax avoidance arrangement. The decision is significant not only for NZD3billion which is at stake but also for its jurisprudence on tax avoidance. This paper analyses the implication of Accent decision on the development of judicial approach on tax avoidance. Purposive approach of interpretation is codified in New Zealand since mid-19th century. Although New Zealand courts are not reluctant in using purposive approach in judicial reasoning, the final decisions rarely depart from literal meaning of the Act. The tension between general anti-avoidance provision and the specific provision within the Act has long been recognised by the court. The Court of Appeal in Accent proposed a judicial technique which would involve seeing tax avoidance cases in three different categories.

In June 2007, the Court of Appeal in New Zealand disallowed the taxpayers appeal and decided that Trinity Scheme is a tax avoidance arrangement. The decision is significant not only for NZD3billion which is at stake but also for its jurisprudence on tax avoidance. This paper analyses the implication of Accent decision on the development of judicial approach on tax avoidance. Purposive approach of interpretation is codified in New Zealand since mid-19th century. Although New Zealand courts are not reluctant in using purposive approach in judicial reasoning, the final decisions rarely depart from literal meaning of the Act. The tension between general anti-avoidance provision and the specific provision within the Act has long been recognised by the court. The Court of Appeal in Accent proposed a judicial technique which would involve seeing tax avoidance cases in three different categories.

This thesis considers interpretive provisions in human rights legislation in the United Kingdom (UK), New Zealand and two Australian jurisdictions: the Australian Capital Territory and the State of Victoria. It deals with the relationship between certain common law interpretive principles which protect human rights and the rules under the interpretive provisions. It also considers what effect the interpretive provisions have on the overall approach to statutory interpretation, particularly in terms of their impact on the roles of intention and purpose. One of the themes of the thesis is that it is possible to identify a common methodology for the application of the various interpretive provisions. This is facilitated by an emphasis on the concept of purpose, which is flexible and capable of being identified and applied at higher levels of abstraction than the concept of intention as commonly applied by the courts. Despite this common methodology, the results of attempts at legislative rights-consistent interpretation in the relevant jurisdictions differ. We shall see that the UK courts have taken a broader interpretive approach than have their New Zealand and Australian counterparts. This will be explained by reference to the respective contexts of the human rights legislation in each jurisdiction, particularly in terms of legislative history. It will be argued that the purpose of the UK legislation to provide remedies in domestic courts for breaches of the European Convention on Human Rights provides the basis for the UK courts’ approach. The absence of this factor is the primary point of distinction between the UK on the one hand, and New Zealand and Australia on the other, though other issues will be explored. Finally, while as a matter of the interpretation of the UK legislation, and especially of the relevant interpretive provision, the approach of the UK courts is defensible, the significant risk to the principle of legal certainty which it poses will be highlighted.

Univerzita Karlova v Praze Právnická fakulta Patrik Koželuha Abstract: Teleological interpretation and the case law of Czech courts The purpose of my thesis is to analyze teleological interpretation from both the theoretical and the practical point of view. Since the use of teleological interpretation by Czech courts has increased in the last two decades, the reason for my research is to present recent legal discussions related to the teleological interpretation. The thesis also examines the arguments which support or criticise such method of interpretation and compares them to contemporary judicial decisions. The thesis is composed of two main chapters; each of them explores the teleological interpretation from a different perspective. The first part is a theoretical part which summarizes acquired knowledge of legal theory concerning teleological interpretation. The second part deals with detailed analysis of selected judicial decisions. The aim of the thesis is to provide a reader with a comparison between theoretical and practical approach to the teleological interpretation. The opening subchapters of the theoretical part explicate what the statutory interpretation is. It also attempts to outline the limits of interpretation. Subsequently, the study presents and characterises the main methods of...

本論文對當代美國的法律解釋發展做初步的探討。美國聯邦最高法院近30年來有意識地使用二種法律解釋方法來確認具歧義的法律條文的文義。第一種方法是立法目的主義，它主張法院可以使用各種立法史資料來探究立法者的原意與立法目的，以確認法律的本義。第二種方法是強硬文本主義，它主張法院只能通過法律制定當時的公民對法律的通常理解來發現法律的一般與客觀意義。在過去三十年，當處理不明確法律意義的問題時，這二種方法支配了美國聯邦最高法院的法律解釋論證。 由這二種方法所引發的論爭不僅涉及法律解釋，還涉及立法學與權力分立，這是為什麼它們會成為過去30年間美國法學者間持續爭論不休的議題的原因。我在這篇論文將展示這段論爭，也就是關於聯邦最高法院的判決發展史中的法律解釋的種種爭論，以及它們與立法學和權力分立問題的關聯。本論文使用二種分析方法來釐清以上立法目的主義與文本主義的論爭，它們是聯邦最高法院的判決發展史分析以及法律解釋概念發展史分析。此外我在分析過程中還加入了當代最具爭議的Chevron U.S.A., Inc. v. NRDC案，使我的論證能夠將立法目的主義與文本主義的不同特性放大，並因而能清楚揭示它們之間的關聯。 在本論文第一章，我將提出二個案例，以說明立法目的主義與文本主義對於法律解釋如此重要的理由。在第二章，我介紹1980年代的制定法解釋發展史。我在第三章說明Chevron案，以及圍繞著Chevron案進行的法律解釋論爭。在第四章，我根據先前的分析成果對法律當代法律解釋論爭提出批判。而在作為結論的第五章，我指出強硬文本主義和強硬立法目的主義無法自足地解釋不明確法律，而對於這二個基礎主義法學，我們都應該謹慎看待，不要懷著不切實際的信心。 / The thesis provides a preliminary inquiry for statutory interpretation in modern America. In recent decades in America, Supreme Court of the United States (SCOTUS) intentionally used two types of statutory interpretation to ascertain the meaning of the ambiguous text of a law. The first is moderate purposivism, which contends that the court could use several materials of legislative history to confine the intent or purpose of the legislature so as to ascertain the appropriate meaning of a law. The second is textualism, which argues that the court could only find the ordinary and legitimate meaning of law from the perspectives of citizens when the law enacted. These two approaches have dominated the arguments of statutory interpretation at SCOTUS when she dealt with the cases which involved law with ambiguous text for more than thirty years. The debates caused by these two approaches are not only on statutory interpretation but also legislation and separation of powers. This is the reason why they became the most controversial issues among the legal scholars of American for recently 30 years. In this thesis, I will present the debates of statutory interpretation at SCOTUS, and their connections with problems of legislation and separation of powers. The thesis uses two analytic approaches to clarify the debates of purposivism and textualism. These two approaches are the history of related decisions at SCOTUS and history of concepts of statutory interpretation. In addition, I add the most controversial case Chevron U.S.A., Inc. v. NRDC around the 1990s into the last analysis. Through Chevron, the thesis could amplify the different characters of purposivism and textualism, and hence to disclosure the correlations among them. Chapter I proposes two examples in Taiwan to explain why purposivism and textualism are so important to statutory interpretation. Chapter II mentions the history of statutory interpretation at the 1980s. Chapter III resorts to Chevron and the debates about statutory interpretation encompass Chevron. Chapter IV offers some critical comments on above achievements of analysis. In the conclusion, I argue the hard textualism and purposivism are not self-sufficient to interpret the ambiguous text of a law, and we must carefully consider any version of foundationalism and its impacts.

Das nationale Recht wird mehr und mehr durch EG-Recht beeinflussst. In diesem Zusammenhang ergeben sich bei denjenigen EG-Rechtsakten, die anders als EG-Verordnungen nicht unmittelbar in den Mitgliedstaaten gelten, sondern von diesen in nationales Recht umgesetzt werden müssen, vielfältige Probleme. Diese Probleme behandelt der Verfasser aus der Sicht des Anwalts in einer Weise, dass diejenigen, die sich in der Praxis mit derartigen Umsetzungsfragen zu beschäftigen haben, wertvolle Hinweise für eine konkret zu lösende Umsetzungsproblematik erhalten. Ergänzt und damit noch transparenter werden seine Lösungsvorschläge dadurch, dass der Verfasser sie im zweiten Teil der Untersuchung auf die konkrete Fragestellung anwendet, inwieweit es zu einer Umsetzung bzw. ordnungsgemäßen Umsetzung der in den Jahren 1988 bis 2001 erlassenen Fleischhygienegebührenrechtsakte der EG gekommen ist.<br /> Diese Arbeit wurde betreut von Professor Dr. D.C. Umbach an der Universität Potsdam. <br /> <br /> Aus dem Inhalt: Abgrenzung der Umsetzungszuständigkeit zwischen Bund und Ländern. Anforderungen an das Vorliegen eines Umsetzungsaktes sowie an eine ordnungsgemäße Umsetzung. Rechtsfolgen bei Umsetzungsverstößen. Prozessuale Fragen. / National law finds itself more and more influenced by EC law. Within this context those EC legal acts who have no direct legal validity in the member states, unlike EC regulations, and which have to be transposed in national law by them, produce diverse problems. These problems are treated by the author from the point of view of a lawyer in such a way, that those who have to deal with these questions of transposition in their practice, find valuable indications for tangible solutions of transposition problems. The proposed solutions are supplemented and therefore more transparent since the author applies these solutions in the second part of his treatise to a concrete statement of problems, i.e. to what extent the EC legal acts concerning meat inspection fees have been transposed, respectively, transposed in due from in the years 1988 until 2001.<br /> The paper has been tutored by Prof. Dr. D. C. Umbach of the University of Potsdam. <br /> <br /> From the content: Delimitation of the competence of transposition between the federal state and his federal states. Requirements concerning the presence of an act of transposition as well as transposition in due form. Legal consequences of any non-transposition. Procedural questions.

An important change wrought by the post-1994 South African Constitutions is the attempt to have South Africa recognised as a democratic and sovereign state in the "family of nations." The new Constitutions make extensive reference to the state's international obligations and represent an endeavour to [re]define the status of international law vis-a-vis national law. Some provisions utilise international law in the interpretation and formulation of national jurisprudence and represent an [albeit not totally successful] endeavour to attain greater harmonisation between international and national law. This is an attempt to systematize the various criticisms levelled against these provisions to date, and to highlight certain interpretational difficulties and problems that present themselves in the process. The distinction between the various terminologies and branches of international law is also taken to task. Lastly, this paper attempts to determine the extent to which international law is applied at national level under the post-1994 constitutions. / Jurisprudence / LL. M.

The thesis in question is titled “Readjusting Orthodoxy”. It constitutes a discourse in UK constitutional law although legal theoretic, historical, politicial, philosophical, and EU-related complementary themes are also present. It is founded upon, and driven by, two fundamental, inter-related premises. First, that it is the orthodox reading of the UK Constitution which best describes and explains the present constitutional arrangement: the UK Parliament is a sovereign institution sitting at the apex of the UK Constitution and vested with the right to make and unmake any law whatsoever. In the second place, that, notwithstanding the above, this very reading of the UK Constitution is currently deficient in terms of internal cohesion, is plagued by ingrained anachronistic dogmas and enjoys only a limited adaptability. From these premises emerges a third proposition; namely, that the UK constitutional discourse as a whole would stand to lose greatly should alternative constitutional theories that are less suited to describe and explain the current constitutional arrangement replace the orthodox reading of the Constitution by exploiting these conspicuous drawbacks. Thus, the present treatise argues that the orthodox reading should after critical evaluation be readjusted in the various ways to be proposed so as to be rendered coherent, consistent, impervious to the numerous challenges it currently faces and, ultimately, capable of continuing to offer the canonical account of the ever-changing UK Constitution.

An important change wrought by the post-1994 South African Constitutions is the attempt to have South Africa recognised as a democratic and sovereign state in the "family of nations." The new Constitutions make extensive reference to the state's international obligations and represent an endeavour to [re]define the status of international law vis-a-vis national law. Some provisions utilise international law in the interpretation and formulation of national jurisprudence and represent an [albeit not totally successful] endeavour to attain greater harmonisation between international and national law. This is an attempt to systematize the various criticisms levelled against these provisions to date, and to highlight certain interpretational difficulties and problems that present themselves in the process. The distinction between the various terminologies and branches of international law is also taken to task. Lastly, this paper attempts to determine the extent to which international law is applied at national level under the post-1994 constitutions. / Jurisprudence / LL. M.