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)

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. 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. 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.