Justice from ‘The Dead Hand of Past’? On Evolving Interpretation and the Principle of Legality in Criminal Matters

Abstract

The ‘dead hand of the past’ problem refers to an issue posed in the theory of legal interpretation, as to how far we should remain faithful to those who adopted our current constitutional provisions. This claim is widely discussed by those who defend some sort of evolving interpretation of basic rights. Nevertheless, this approach introduces a subtle challenge when interpreting the extension of the principle of legality in criminal matters, as the intention of achieving effectiveness through criminal laws should not be derived from any kind of analogical application of the law. We may therefore wonder: Is evolving interpretation necessarily incompatible with the principle of legality in criminal issues, as required by Rule of Law? Is evolving interpretation plainly an excuse for eluding prohibitions of analogical application of criminal provisions? This article attempts to provide answers to these questions.