Interpretation of Law in the Age of Enlightenment: From the Rule of the King to the Rule of Law (Law and Philosophy Library Book 95)

A collaboration of leading historians of European law and philosophers of law and politics identifying and explaining the practice of interpretation of law in the 18th century. The goal: establishing the actual practice in the Age of Enlightenment, and explaining why this was the case. The ideology of the Age was that law, i.e., the will of the sovereign, can be explicitly and appropriately stated, thus making interpretation redundant. However, the reality was that in the 18th century, there was no one leading source of national law that would be the object of interpretation. Instead, there was a plurality of sources of law: the Roman Law, local customary law, and the royal ordinance. However, in deciding a case in a court of law, the law must speak with one voice. Hence, interpretation to unify the norms was inevitable. What was the process? What role did justification in terms of reason, the hallmark of the Enlightenment, play? These are some of the questions addressed. Foreword 6 Preface 8 Contents 13 Contributors 15 About the Authors 16 Part I Introduction 19 1 Judicial Interpretation in Transition from the Ancien Rgime to Constitutionalism 20 I The Concept of Sovereignty 21 II The Judge as an Agent of the Prince 22 III On the Way to Independence 24 IV The Independent Judge as Limited Interpreter 27 V Interpretation and the Will of the Parliaments 30 Part II The Case of France 35 2 Legal Interpretation in France Under the Reign of Louis XVI: A Review of the Gazette des tribunaux 36 The Context of the Gazette des Tribunauxs Publication (17751789) 37 A Clear Evolution in the Method of Publishing Judgments 44 Hypothesis Concerning the Conceptions About Legal Interpretation 50 3 Legal Interpretation and the Use of Legal Literature in 18th Century Law Reports of the Parlement de Flandre 59 Part III The Case of Germany 72 4 The Object of Interpretation: Legislation and Competing Normative Sources of Law in Europe During the 16th to 18th Centuries 73 Introduction and Preliminary Methodological Note 73 The Inter-dependency of the Sources of Law 76 The Changing Ranking of Sources of Law 78 The Meaning of the Common Law ius privatum for Legislation and the Theory of Sources of Law 79 The Ranking of Legislation and Case Law 80 Statute as a Problem of Definition 82 Voluntas as the Basis for the Validity of Statutes 84 Concentration and Monopolisation of the Legislative Branch 87 The Variety of Names for the Products of Legislation 88 The Legislator-Sovereign and Legislation as a Hallmark of Sovereignty 89 The Legal Character of Legislation: Binding Force Under Contract or Imperatives 90 Legislation: Between Consistency and Adaptation 91 Generalisation and Differentiation as Alternative Models in Legislation 93 On the Normativity of Case Law and Legal Science 94 The Status of Case Law as a Source of Law 94 The Status of Legal Science as a Source of Law 96 Criticism of the State of Law 97 Comparative Observation of Legislation and Conditions of Law 98 Codification as an Idea and Form for Legislation During the Enlightenment Era 99 5 The Concept and Means of Legal Interpretation in the 18th Century 102 The Concept of Statutory Interpretation 103 Sixteenth and Early Seventeenth Century 103 Late 17th and 18th Century 105 Means of Legal Interpretation 107 Sixteenth and Early Seventeenth Century 107 Late 17th and 18th Century 110 Background: The Modification of the Concept of Law in the Early Modern Period 112 Concluding Remarks 114 6 “Needs” – Pandectists Between Normand Reality 117 Introduction 117 Needs as a Problem of Knowledge 122 ''Intuitive'' Need 122 ''Real'' Need 123 Rational Need 126 Theoretical Classification of the Argument 128 Summary 130 Part IV The Nature of Legal Interpretation 132 7 Interpretation by Another Name 133 Interpretation 134 Judicial Interpretation 141 Bibliography 145 8 What Is Interpretation of the Law for the French Judge? 147 I. 148 II. 153 Conclusion 157 Bibliography 159 9 The Craft of Legal Interpretation 160 Introduction 160 The Case of the Torture Memos 162 Interpretive Judgment 168 The Jurisprudence of Lawyering 177 Conclusion 185 Bibliography 185 Part V Concluding Remarks 186 10 Legal Interpretation in 18th Century Europe: Doctrinal Debates Versus Political Change 187 Name Index 194 Subject Index 196 Front Matter....Pages i-xix Front Matter....Pages 1-1 Judicial Interpretation in Transition from the Ancien Régime to Constitutionalism....Pages 3-17 Front Matter....Pages 19-19 Legal Interpretation in France Under the Reign of Louis XVI: A Review of the Gazette des tribunaux ....Pages 21-43 Legal Interpretation and the Use of Legal Literature in 18th Century Law Reports of the “Parlement” de Flandre....Pages 45-57 Front Matter....Pages 59-59 The Object of Interpretation: Legislation and Competing Normative Sources of Law in Europe During the 16th to 18th Centuries....Pages 61-89 The Concept and Means of Legal Interpretation in the 18th Century....Pages 91-105 “Needs” – Pandectists Between Norm and Reality....Pages 107-121 Front Matter....Pages 123-123 Interpretation by Another Name....Pages 125-138 What Is Interpretation of the Law for the French Judge?....Pages 139-151 The Craft of Legal Interpretation....Pages 153-178 Front Matter....Pages 179-179 Legal Interpretation in 18th Century Europe: Doctrinal Debates Versus Political Change....Pages 181-187 Back Matter....Pages 189-193 Part I. Introduction. Judicial interpretation in transition from the ancien régime to constitutionalism / Michael Stolleis Part II. The Case Of France. Legal interpretation in France under the reign of Louis XVI : a review of the Gazette des tribunaux / Jean-Louis Halpérin Legal interpretation and the use of legal literature in 18th century law reports of the "parlement" de Flandre / Serge Dauchy Part III. The Case Of Germany. The object of interpretation : legislation and competing normative sources of law in Europe during the 16th to 18th centuries / Heinz Mohnhaupt The concept and means of legal interpretation in the 18th century / Jan Schröder "Needs"-pandectists between norm and reality / Hans-Peter Haferkamp Part IV. The Nature Of Legal Interpretation. Interpretation by another name / Morigiwa Yasutomo What is interpretation of the law for the French judge? / Michel Troper The craft of legal interpretation / W. Bradley Wendel Part V. Concluding Remarks. Legal interpretation in 18th century Europe : doctrinal debates versus political change / Jean-Louis Halpérin. This book examines the actual practice of the interpretation of law in the Age of Enlightenment versus the ideology of the Age and explains the reason for and difference between the two. The ideology of the Age of Enlightenment was that law, i.e., the will of the sovereign, can be explicitly and appropriately stated, thus making interpretation redundant. However, the reality was that in the 18th century, there was no one leading source of national law that would be the object of interpretation. Instead, there was a plurality of sources of law: the Roman Law, local customary law, and the royal ordinance. Yet, in deciding a case in a court of law, the law must speak with one voice, making interpretation to unify the norms inevitable. This book discusses the process involved and the role played by justification in terms of reason - the hallmark of Enlightenment.