Interpretation of Law in the Age of Enlightenment: From the by Michael Stolleis (auth.), Yasutomo Morigiwa, Michael

By Michael Stolleis (auth.), Yasutomo Morigiwa, Michael Stolleis, Jean-Louis Halperin (eds.)

This ebook examines the particular perform of the translation of legislation within the Age of Enlightenment as opposed to the ideology of the Age and explains the cause of and distinction among the 2. The ideology of the Age of Enlightenment used to be that legislation, i.e., the desire of the sovereign, might be explicitly and correctly acknowledged, hence making interpretation redundant. notwithstanding, the truth used to be that during the 18th century, there has been not anyone prime resource of nationwide legislation that might be the article of interpretation. as a substitute, there has been a plurality of assets of legislations: the Roman legislations, neighborhood commonly used legislation, and the royal ordinance. but, in figuring out a case in a courtroom of legislation, the legislation needs to communicate with one voice, making interpretation to unify the norms inevitable. This publication discusses the method concerned and the function performed by means of justification by way of cause - the hallmark of Enlightenment.

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Extra resources for Interpretation of Law in the Age of Enlightenment: From the Rule of the King to the Rule of Law

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Fr 21 MORIGIWA , Y. et al. V. -L. HALPÉRIN the judiciary in legal interpretation was complicated by the practice of the courts not to publish their reasons. Fourth, the main goals of the law reports of this period were to construct the reasons behind judgements, and to identify standards of legal interpretation. Finally, the Age of Enlightenment in France provoked a critical examination – led by the French philosophes and their readers – of the discipline known as hermeneutics, and the possibility of a singular text bearing several differing meanings at the same time.

19 One can ask whether this “systematic” (but not fundamentally new) approach to the interpretative functions of the judiciary had any real effect on judicial practice during the second half of the 18th century, and further, whether it conflicted with a more legalistic method as defended by French “philosophers”. It would be an overstatement to say that the French philosophers had developed a coherent theory of legal interpretation. First, the question of legal interpretation is not deeply examined in Montesquieu’s Esprit des Lois (1748), a title which evokes Domat’s reflections upon judicial functions.

Other branches were later established, such as the finance courts in 1919, the labor courts in 1927, and the social jurisdiction in 1951. At the same time, the judiciary also began to develop a system of judicial review, by which they assessed the constitutionality of the civil law. The first stage of this development involved a formal analysis, in which the judiciary examined the legality of the law’s creation and structure. After the First World War, the judiciary also undertook a second stage of review: analyzing the substantive content of the law for compatibility with the constitution.

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