Interpretation of Law in the Age of Enlightenment From the Rule of the King to the Rule of Law

INTERPRETATION OF LAW IN THE AGE OF ENLIGHTENMENT


Law and Philosophy Library
VOLUME 95

Series Editors:
FRANCISCO J. LAPORTA, Department of Law,
Autonomous University of Madrid, Spain
FREDERICK SCHAUER, School of Law, University of Virginia, U.S.A.
TORBEN SPAAK, Uppsala University, Sweden
Former Series Editors:
AULIS AARNIO, MICHAEL D. BAYLES† , CONRAD D. JOHNSON† ,
ALAN MABE, ALEKSANDER PECZENIK†
Editorial Advisory Board:
AULIS AARNIO, Secretary General of the Tampere Club, Finland
HUMBERTO ÁVILA, Federal University of South Brazil, Brazil
ZENON BANKOWSKI, Centre for Law and Society, University of Edinburgh,
United Kingdom
PAOLO COMANDUCCI, University of Genoa, Italy
HUGH CORDER, University of Cape Town, South Africa
DAVID DYZENHAUS, University of Toronto, Canada
ERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft, Johannes
Gutenberg Universitat, Mainz, Germany
RICCARDO GUASTINI, University of Genoa, Italy
JOHN KLEINIG, Department of Law, Police Science and Criminal Justice
Administration, John Jay College of Criminal Justice, City University of New York,
U.S.A.
PATRICIA MINDUS, Università Degli Studi di Torino, Italy
YASUTOMO MORIGIWA, Nagoya University, Japan

GIOVANNI BATTISTA RATTI, “Juan de la Cierva” Fellow in Law, Faculty of
Law, University of Girona, Spain
WOJCIECH SADURSKI, European University Institute, Department of Law,
Florence, Italy
HORACIO SPECTOR, Universidad Torcuato Di Tella, Argentina
ROBERT S. SUMMERS, School of Law, Cornell University, U.S.A.
MICHEL TROPER, Membre de l’Institut Universitaire de France, France
CARL WELLMAN, Department of Philosophy, Washington University, U.S.A.
For further volumes:
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INTERPRETATION
OF LAW IN THE AGE
OF ENLIGHTENMENT
From the Rule of the King to the Rule of Law

Edited by

MORIGIWA Yasutomo
Graduate School of Law, Nagoya University, Nagoya, Japan

Michael STOLLEIS
Max Planck Institute for European Legal History, Frankfurt/Main,
Germany

Jean-Louis HALPÉRIN
École Normale Supérieure, UMR 7074 “Centre de Théorie
et Analyse du droit”, Paris, France

123

Editors
M ORIGIWA Yasutomo
Graduate School of Law
Nagoya University
Furo-cho 1
464-8601 Nagoya Aichi
Japan

Jean-Louis H ALPÉRIN
École Normale Supérieure,
UMR 7074 “Centre de Théorie
et Analyse du droit”
boulevard Jourdan 48
75014 Paris
France


Michael S TOLLEIS
Faculty of Law
University of Frankfurt
Frankfurt
Germany
and
Max Planck Institute for European
Legal History
Hausener Weg 120
D-60489 Frankfurt/Main
Germany

ISSN 1572-4395
ISBN 978-94-007-1505-9
e-ISBN 978-94-007-1506-6
DOI 10.1007/978-94-007-1506-6
Springer Dordrecht Heidelberg London New York
Library of Congress Control Number: 2011929885
© Springer Science+Business Media B.V. 2011
No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by
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Springer is part of Springer Science+Business Media (www.springer.com)


Foreword

Our project: the “Hermeneutic Study and Education of Textual
Configuration” (HERSETEC), commenced in June 2007, after official
notice was delivered by the Society for the Promotion of Science. The
Society organized peer reviews with advice from distinguished scholars both
within and beyond the borders of Japan, and authorized us to launch. As
this project was to focus upon the pedagogical dimensions of the doctorate
course, we called upon doctorate students for their willing participation in
our project, in order to enrich both their knowledge and their experience in
their respective research fields.
Our scientific assumptions about textual configuration can be explained
as follows: in general, texts constitute a kind of imaginary constellation

of homologues: both those of pre-textuality – a prerequisite for textual
existence – and other related texts, which realize inter-textuality through
cross-references among them; meta-texts, which assign annotations or interpretations to texts; and para-texts, which are titles that indicate genres of
texts or categories to which the texts belong, as well as their forms and
constitutions. A particular text exists as a closely-knit gathering of textual
constituents, and their overall configuration is characterized as “text” in the
broad sense. Based on the theoretical ideas explained above, which have
already been cultivated and elaborated on in the sphere of literature, we
have examined what is called the “hermeneutical point of view,” which is,
as I see it, one of the most important devices of modern science for the
understanding of the written text.
As the fruits of labor in the educational sphere are, regrettably, less visible when compared to the research results, I would explain the activities of
our project over the past four years by presenting the trajectory of various
international meetings that we have organized and hosted.
First, we inaugurated the series with a conference entitled “Philological
and Grammatical Studies of English Historical Texts,” which was held in
Nagoya, in September 2007. The late Professor AMANO Masachiyo was
v


vi

Foreword

its organizer and the proceedings were published in 2008 from Peter Lang.
The second international colloquium that we organized was named Balzac,
Flaubert. La genèse de l’oeuvre et la question de l’interprétation and was
held in December 2007. The third was held in February 2008, titled “Identity
in Text Interpretation and Everyday Life”. In July 2008, we hosted the
fourth international conference on the subject of “The Global Stature of

Japanese Religious Texts: Aspects of textuality and syntactic methodology”. The fifth international conference was organized by MATSUZAWA
Kazuhiro in collaboration with Gisèle SÉGINGER : La mise en texte des
savoirs, in March 2009, at the Université de Paris-Est, of which proceedings were published in November 2010 from Presses Universitaires de
Strasbourg. Almost simultaneously, we held the sixth international meeting
with the theme Herméneutique du texte d’histoire: orientation, interpretation et questions nouvelles on the 7th and 8th of March in 2009, in Tokyo.
The seventh, titled “The Sixth Workshop on Altaic Formal Linguistics” was
held in September 2009 in Nagoya. The proceedings of this colloquium were
published by the MIT Press in 2011. Once again, almost contemporaneously, the eighth international meeting was hosted in association with the
Charles University of the Czech Republic, in Prague: “Historical Trajectory
of the Written Text in Japanese: Interpretation, Re-contextualization and
Configuration”. The ninth meeting was based on the theme “Japanese
Academic Knowledge Aiming for Language” in September 2010. Finally, it
was the tenth international meeting that our colleague MORIGIWA Yasutomo
organized in association with Professors Drs. Michael STOLLEIS and JeanLouis HALPÉRIN , titled “Interpretation by Another Name: The Uses of
Legal Texts in the Age of Enlightenment”, from which this book has ensued.
I would stress the fact that the conference was our first to discuss the problem of law and juridical texts. I do not doubt that our scientific attempt ended
successfully, thanks to the collaboration of all the contributors gathered at
this meeting. To conclude, I would like to express my sincere gratitude to my
colleague MORIGIWA Yasutomo, and Professors Drs. Michael STOLLEIS
and Jean-Louis HALPÉRIN for their scientific patronage and advice.
Academician of the Japan Academy
Professor at Nagoya University
Project leader of HERSETEC

SATO Shoichi


Preface

Legal interpretation was a matter of great controversy in 19th century

Germany. The conflicts that took place between the historical school and
what was deemed the school of Begriffsjurisprudenz is well known. This
debate increasingly broadened divisions between the Germanisten and the
Romanisten, and Savigny, Puchta, Jhering are just some of the names that
come to mind as the major actors at play. The issue of legal interpretation has
continued to be discussed in the 20th century; a great part of the works of
Zitelmann, Ehrlich, Gény, Kelsen, Holmes, Cardozo, Llewellyn, Hart and,
more recently, of Ronald Dworkin, Joseph Raz, and Neil MacCormick have
been devoted to pressing interpretive questions. These questions include
those concerning the issues of “judge-made law,” silences in the law, the
idea of “one right answer”, the Janus-faced character of legal interpretation, and the nature of legal reasoning itself. In addition, the “linguistic
turn,” influenced by the views of L. Wittgenstein, J. L. Austin, and H.-G.
Gadamer, among others, accentuated this focus on the role of interpretation
in the creation of legal norms.
Compared to what we know of the 19th and 20th centuries, our understanding of what occurred in 18th century Europe on this issue is much less
evident. However, just as the knowledge of 19th century controversies aids
our understanding of those of the 20th century, a sound understanding of
how legal interpretation was regarded in the eighteenth ought to help us
better understand these later developments.
Further, legal interpretation in the Age of Enlightenment is a topic of great
interest from the point of view of legal theory. How did the ideology of the
era, with its emphasis on the power of reason, affect the practice of legal
interpretation in the courts? As in the case of Kant, the 18th century was
the period during which the concept of public reason was developed. Is it
possible that the judiciary had been operating upon such a concept, perhaps
without being aware of it? If there were enlightened judges, would they not

vii

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Preface

have espoused the idea that through reason, a code could be derived with two
main functions: first, unification of the then various and conflicting sources
of law which necessitated interpretation; and second, to be so clear and
systematic that no interpretation would be needed? Further, because none
existed, that the judges can and should interpret the law according to natural
law principles so that a functional surrogate of such a code could be derived
in practice?
While Friedrich the Great aspired to bring about such a Code, and
although there were attempts to systematize positive law under natural law
principles in the universities, such tendencies seem not to have been the case
with the judges of the courts in his official realm. As the work by Heinz
MOHNHAUPT and Jan SCHRÖDER in this volume demonstrates, history
tends to contradict our expectations. Finding reasonable solutions through
legal interpretation, and reading reason into the law was mainly a pre-18th
century practice. In contrast, what developed in the 18th century was the
replacement of reason by authority. More and more, as Hobbes said, authority, not reason, made the law. The power of absolutist kings controlled the
judiciary, and directed them to follow the wishes of the sovereign; the concept of authority was thus firmly rooted in this century, and the scope for
judicial interpretation became increasingly narrower.
Furthermore, in contrast to the spread of Enlightenment philosophy from
France to Germany, and the high level of communication among the literary and scientific circles of England, Scotland and Continental Europe,
there was relatively little exchange of ideas and practice between the courts
divided by the Rhine. Entirely different ways of addressing the needs of a
new, modern state were developed in each area respectively.
These preliminary findings prompted a more thorough investigation of
the subject, with the aim of finding out in more detail how the German and
French judges interpreted law in their respective courts. This in turn provided a foundation for a better understanding of the development of legal

interpretation during the Age of Enlightenment.
The first idea of this collective work, initiated by MORIGIWA Yasutomo,
was to question the German and the French systems during the Age of
Enlightenment. The working hypothesis was that the well known contrasts
between French legalism (“legicentrism”, prevalent Napoleonic codification, and disallowance of judicial review of statutes), and the German theory
of interpretation (Savigny’s system, later adapted to the Kelsenian context
of constitutional review) could find their roots in 18th century differences
between each country’s philosophical, political and legal contexts. The
working hypothesis was exactly that: nothing more than temporary scaffolding, thus in need of further refinement and elaboration as the enquiry


Preface

ix

progressed. The most well-known writings discussing legal interpretation
during the 18th century – such as Montesqieu’s famous expression of the
judge as the “mouth of the law” – seemed, prima facie, foreign to any interpretivist understanding of the law. It was as if they spoke of interpretation
“by another name” if at all. This was consonant with the changing practice
of the judges in France and Germany, but admitting no room for interpretation is by far an exaggeration. Thus, it was necessary to further investigate
the works of less notorious writers and those engaged in judicial practice.
Thanks to the financial support of the Hermeneutic Study and Education
of Textual Configuration (HERSETEC, a Global Centre of Excellence
Program organized by the Nagoya University Graduate School of Letters),
a symposium was organized and held in Paris, September–October 2010. In
preparation, Michael STOLLEIS (former Director of the Max-Planck-Institut
für europäische Rechtsgeschichte) in concert with MORIGIWA , provided scientific perspective on the issue at hand, and the Centre de Théorie et Analyse
du Droit (UMR 7074 represented by Jean-Louis HALPÉRIN , École normale
supérieure, Paris) kindly provided the venue for the conference, utilizing
both campuses of the École normale supérieure. In addition, as co-organizer,

H ALPÉRIN provided a wealth of ideas for the conference.
At the conference, the discussion was particularly rigorous, not only on
the papers presented, but also concerning the subject matter as a whole,
especially on the links between older and more recent debates. It became
apparent, first, that the Age of Enlightenment should be understood as a
period beginning in the middle of the 17th century (with Hobbes’ Leviathan)
and concluding after the French Revolution with the German debates on the
works of Savigny. Differences between French and German doctrine were
also more precisely contextualized, and were shown to be linked with the
developments of the modern State on both sides of the Rhine.
The changes that intervened during the Age of Enlightenment came to be
considered as beacons for our contemporaneous understanding of the nature
of legal interpretation. These changes can be aptly described by the sub-title:
“from the Rule of the King to the Rule of Law”, which depicts the transition
from judges devoted to the service of the Prince to judges subjected to a
significantly more abstract sovereignty. Through the historical investigation
of legal interpretation in Germany and France during this era, the legacy of
legal cultures created by the Age of Enlightenment began to appear as clues
that could fuel renewed debates about legal interpretation today.
The chapters in this volume were organized with the idea above in mind.
The volume begins with a work by STOLLEIS, which goes well beyond the
introductory function it serves. The second and third parts are comprised of
works in legal history written by representative legal historians of France


x

Preface

and Germany, and concentrate on the issue of legal interpretation. Heinz

MOHNHAUPT and Brad WENDEL kindly joined us post-conference, which
allowed us to change this volume from a record of proceedings to a wellbalanced and informative collection of essays.
Part IV is a collection of chapters by philosophers of law. MORIGIWA
provides an introduction discussing the way in which a theory of general interpretation can illuminate legal interpretation, given the heritage of
philosophy stemming from the “linguistic turn.” Michel TROPER then illustrates the modern French judge’s broad interpretive scope, despite the official
ideology that the French judge merely applies and never interprets law.
This may give the appearance that the French judge has liberal scope in
interpretation that may be little more than arbitrary. Contrary to this perspective, WENDEL discusses the interpretation of law by American lawyers,
and demonstrates that they ought to be responsible for the quality of the
reasons given to explain and justify their legal interpretations. This may be
understood as an anti-thesis to TROPER , as it claims that there is (in the case
of lawyers) a normative reason to rule out discretion in interpretation, a fortiori for the case of the judge. In this sense, modern day theories of legal
interpretation may be seen to return to the system of reading reason into law.
This is the position MORIGIWA takes, in arguing that the interpretation of
law is a never-ending spiraling process of reason-giving.
The volume closes with a synthesis of the findings, presented by
HALPÉRIN. We hope that this will give the reader a panoramic view of the
state of legal interpretation in the Age of Enlightenment. The book should
offer as well a taste of the contemporary theoretical situation on the issue
of legal interpretation. With this prospect in mind, we hope that the collection of these texts, made possible with the kind support given us by Springer
Verlag, will provoke further research and debate surrounding the question of
interpretation on the use and creation of law.
Last but not least, the editors would like to thank everyone who made this
volume possible. We were fortunate enough to receive papers from the leading writers in the field. The audience at the Paris symposium, their questions
and critique from the floor were most helpful. Professor SATO Shoichi of
the Japan Academy and leader of the HERSETEC project gave invaluable
moral as well as financial support. The Max-Planck-Institut für europäische
Rechtsgeschichte and the École normale supérieure were generous in allowing us the use of their premises for our meetings and the symposium. Our
special thanks go to Thomas R OBERTS for his speedy and excellent translation of the work by Heinz MOHNHAUPT, NODA Yukari for her always timely
secretarial work, Leah HAMILTON for her tireless polishing, formatting

Preface

xi

and all types of editorial work, and Neil and Diana at Springer for their
warm support; without their help, this book would not have seen the light
of day.
Nagoya, Japan
Frankfurt, Germany
Paris, France
February 2011

MORIGIWA Yasutomo
Michael STOLLEIS
Jean-Louis HALPÉRIN



Contents

Part I

Introduction

1 Judicial Interpretation in Transition from the
Ancien Régime to Constitutionalism . . . . . . . . . . . . . . .
Michael S TOLLEIS
Part II

3

The Case of France

2 Legal Interpretation in France Under the Reign of
Louis XVI: A Review of the Gazette des tribunaux . . . . . . .
Jean-Louis H ALPÉRIN

21

3 Legal Interpretation and the Use of Legal Literature
in 18th Century Law Reports of the “Parlement” de Flandre .
Serge DAUCHY

45

Part III

The Case of Germany

4 The Object of Interpretation: Legislation and
Competing Normative Sources of Law in Europe
During the 16th to 18th Centuries . . . . . . . . . . . . . . . .
Heinz M OHNHAUPT
5 The Concept and Means of Legal Interpretation
in the 18th Century . . . . . . . . . . . . . . . . . . . . . . . .
Jan S CHRÖDER

61

91

6 “Needs” – Pandectists Between Norm and Reality . . . . . . . 107
Hans-Peter H AFERKAMP
Part IV

The Nature of Legal Interpretation

7 Interpretation by Another Name . . . . . . . . . . . . . . . . 125
M ORIGIWA Yasutomo

xiii


xiv

Contents

8 What Is Interpretation of the Law for the French Judge? . . . 139
Michel T ROPER
9 The Craft of Legal Interpretation . . . . . . . . . . . . . . . . 153
W. Bradley W ENDEL
Part V

Concluding Remarks

10 Legal Interpretation in 18th Century Europe:
Doctrinal Debates Versus Political Change . . . . . . . . . . . 181
Jean-Louis H ALPÉRIN

Name Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Subject Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191


Contributors

Serge DAUCHY Centre d’Histoire Judiciaire, CNRS, Lille, France,

Hans-Peter H AFERKAMP Institut für Neuere Privatrechtsgeschichte,
Deutsche und Rheinische Rechtsgeschichte, Universität zu Köln, 50923
Köln, Deutschland,
Jean-Louis H ALPÉRIN École Normale Supérieure, UMR 7074 “Centre
de Théorie et Analyse du droit”, Paris, France, ;

Heinz M OHNHAUPT Max-Planck-Institut für europäische
Rechtsgeschichte (Max-Planck-Institute for European Legal History),
Frankfurt am Main, Germany,
M ORIGIWA Yasutomo Graduate School of Law, Nagoya University,
Nagoya 464-8601, Japan,
Jan S CHRÖDER Faculty of Law, University of Tübingen,
Geschwister-Scholl-Platz, D-72076, Tübingen,
;
Michael S TOLLEIS Faculty of Law, University of Frankfurt, Frankfurt,
Germany; Former Director, Max Planck Institute for European Legal
History, D-60489 Frankfurt/Main, Germany,
Michel T ROPER Centre de Théorie et Analyse du Droit, Université de
Paris Ouest – Nanterre, Paris, France,
W. Bradley W ENDEL Law School, Cornell University, Ithaca, New York,
US,

xv



About the Authors

Prof. Serge DAUCHY has studied history and law at the Universities of
Ghent and Paris. He is the research director at the Centre National de la
Recherche Scientifique, director of the Centre d’Histoire Judiciaire (UMR
8025 CNRS – Lille) and a professor at the Facultés universitaires SaintLouis in Brussels. He is currently working on the history of civil procedure,
case law and on the circulation of legal literature in early modern Europe.
Prof. Dr. Hans-Peter HAFERKAMP PhD in 1994, habilitation in 2002.
From 2003, director of the Institute of the History of Modern Private Law
at the University of Cologne. Fields of study: history of private law in the
modern age, history of jurisprudence, contemporary legal history.
Major publications: Die heutige Rechtsmissbrauchslehre – Ergebnis nationalsozialistischen Rechtsdenkens?, Berlin 1995; Georg Friedrich Puchta und
die Begriffsjurisprudenz’, Frankfurt on the Main, 2004.
Jean-Louis H ALPÉRIN École Normale Supérieure (Paris), UMR 7074
CNRS “Centre de Théorie et Analyse du droit”. Professor of legal history,
successively at the Universities of Lyon (1988–1998) and Burgundy (1998–
2003), then at the Ecole Normale Superieure (Paris) from 2003, author of
various books about French codification.
Major publications: (L’Impossible Code civil, Paris, PUF, 1992), European
legal history (Histoire des droits en Europe, Paris, Flammarion, 2004) and
comparative law (Profil des mondialisations du droit, Paris, Dalloz, 2009).
Heinz MOHNHAUPT Jurist and legal historian, is an emeritus fellow of the
Max-Planck Institute for European Legal History in Frankfurt am Main.
His research is currently focused on the theory and practice of using legal
sources, the history of constitutions and of legal terms, and comparative
history in natural and human sciences.

xvii


xviii

About the Authors

Major publications: “Potestas legislatoria . . .,” in: Ius Commune 4 (1972),
188–239; “Untersuchungen zum Verhältnis Privileg und Kodifikation,” in:
Ius Commune 5 (1975), 71–121; Verfassung (together with D. Grimm), 2.
ed., 2002; Prudentia legislatoria, 2003.
MORIGIWA Yasutomo is Professor of Law at the Graduate School of
Law, Nagoya University. LL.B., LL.M., University of Tokyo. Teaches philosophy of law, legal ethics and anti-corruption in English and Japanese.
Acting President, International Association for Philosophy of Law and
Social Philosophy (IVR). After beginning his career at the University of
Tokyo as Research Associate, worked on theories of law and language
at Oxford with Profs. Hart, Dworkin, and Raz. Now active in work on
interpretation and in promoting the practical import of legal philosophy;
e.g., uses his findings on legal validation to explain to the practicing jurist
the binding nature of legal ethics. He has also edited a textbook on legal
ethics Ethica Juris Peritorum (Nagoya University Press, 2005), with translations in Chinese and Mongolian. Examples of works available in European
languages: “Die philosophischen Grundlagen der Richterethik,” SchleswigHolsteinische Anzeigen, Teil A Nr. 4, 110–115 (2009), “The Semantic Sting
in Jurisprudence,” Archiv fuer Rechts- und Sozialphilosophie, Beiheft 40,
16–24 (1991), “Authority, Rationality, and Law,” Southern California Law
Review 62, 897–912 (1989).
Jan SCHRÖDER was born in 1943 in Berlin. Professor of law, EberhardKarls-Universität Tübingen. Chair for German legal history and civil law
since 1989, retired October 2009. Member of the Academy of Science and
Literature Mainz 2001. Honorary doctor of the University of Stockholm,
faculty of law, 2003.
Major publications: (1) Wissenschaftstheorie und Lehre der “praktischen Jurisprudenz” auf deutschen Universitäten an der Wende zum 19.

Jahrhundert, 1979; (2) Recht als Wissenschaft. Geschichte der juristischen
Methode vom Humanismus bis zur historischen Schule (1500–1850), 2001;
(3) (Co-author with Gerd Kleinheyer): Deutsche und europäische Juristen
aus neun Jahrhunderten, 5th edition, 2008 (translations of former editions: Japanese 1983, Chinese 2004); (4) Rechtswissenschaft in der Neuzeit:
Geschichte, Theorie, Methode (selected essays), 2010.
Michael STOLLEIS was born in 1941. He was a Professor for Public Law
and History of Law at the University of Frankfurt from 1975 to 2006.
From 1992 to 2009 he also directed the Max Planck Institute for European
Legal History. He has been awarded both the Leibniz Prize of the Deutsche
Forschungsmeinschaft (1991) and the Prize of the International Balzan
Foundation (2000). He is a member of several Scientific Academies and


About the Authors

xix

obtained honorary degrees from the Universities of Lund, Toulouse, Padova
and Helsinki.
Major works: History of Public Law in Germany (1600–1945), 3 vol., 1988,
1992, 1999, second and third volume appeared in english (vol. II 1800–1914,
New York (Berghahn Books) 2001; vol. III. 1914–1945, Oxford University
Press 2004). Collected articles appeared under the title The Law under the
Swastika. Studies on Legal History in Nazi Germany, Chicago 1998. See
also: The Eye of the Law. Two Essays on Legal History, Birbeck Law Press,
London 2009.
Michel TROPER is professor emeritus at the Université de Paris X-Nanterre,
a member of the Institut Universitaire de France. He created and was the
first President of the SFPJ (Société Française de philosophie politique et
juridique). He is also honorary president of the French association of constitutional law. TROPER has taught and lectured in several universities around

the world.
Major publications: La séparation des pouvoirs et l’histoire constitutionnelle française, Paris, LGDJ (new edit. 2010); La philosophie du droit, Paris,
PUF (Que Sais-je?), 3rd edit. 2011; Le droit et la nécessité, Paris, PUF, 2011;
HAMON F. & TROPER M., Droit constitutionnel, Paris, LGDJ, 31st. edit.,
2009; TROPER M. & CHAGNOLLAUD D. (ed.), Traité international de droit
constitutionnel, Paris, Dalloz, 3 vol. (forthcoming).
W. Bradley WENDEL Professor of Law, Cornell Law School. B.A. Rice
University; J.D. Duke University; LL.M., J.S.D. Columbia University.
Major publications: Lawyers and Fidelity to Law (Princeton University Press
2010); Professional Responsibility: Examples and Explanations (Wolters
Kluwer, 3rd ed. 2010); and co-editor of The Law and Ethics of Lawyering
(with Hazard, et al., Foundation Press, 5th ed. 2010).



Part I

Introduction



Chapter 1

Judicial Interpretation in Transition from the
Ancien Régime to Constitutionalism
Michael S TOLLEIS

There are few statements more universally accepted than Thomas Hobbes’s
famous gloss: that “All Laws need Interpretation”.1 This idea has remained
an ongoing jurisprudential theme since antiquity, as even before legislation

in the modern sense existed, judges were required to determine “the right”
interpretation of any given law.2 The deficiencies of laws and legal texts
are acknowledged and well known: those both obvious and latent, and those
actual or claimed. Not only this, but the law also contains a well-known
blindness towards the future, and like all texts, can be interpreted differently
depending on the context. Therefore, if society is to function harmoniously,
an authority is required: an authority which ends the battle of interpretation.
This battle has been a constant jurisprudential problem. All texts are
ambiguous, be they divine commandments or human norms; simple directions or instruction manuals. When the word “interpretation” is entered
into Google, sixty-nine million hits are returned, revealing that in any
sense of the word, interpretation is a fundamental problem within human
communication.

1 T.

Hobbes, Leviathan, Oxford 1909, 212.
the often quoted sentence from the speech from Feb. 23rd 1803 concerning the
tabling of the code civil of Portalis, Il y avait des juges avant qu’il y eût lois. . .
(Mohnhaupt, Potestas legislatoria und Gesetzesbegriff im Ancien Régime, in: id.,
Historische Vergleichung im Bereich von Staat und Recht, Frankfurt 2000, 223).

2 So

M. S TOLLEIS (B)
Faculty of Law, University of Frankfurt, Frankfurt, Germany; Former Director, Max
Planck Institute for European Legal History, D-60489 Frankfurt/Main, Germany
e-mail:
3
MORIGIWA , Y. et al. (eds.), Interpretation of Law in the Age
of Enlightenment, Law and Philosophy Library 95,

DOI 10.1007/978-94-007-1506-6_1, C Springer Science+Business Media B.V. 2011


4

M. STOLLEIS

I The Concept of Sovereignty
To determine a starting point within the polemic surrounding juridical
interpretation, we shall begin with Thomas Hobbes. Insofar as Hobbes
appoints the secular sovereign as the final authority – whoever he may be:
whether one man, as in a monarchy; or an assembly of men, as in a democracy or aristocracy – Hobbes simultaneously appoints him as the legislator of
civil law.3 This sovereign is not only able to make, abolish or change laws;
he is also able to interpret them. This was previously noted by Bodin, in
his acknowledgment that the sovereign both donne & casser la loy and can
changer & corriger the law also.4 To support this, here Bodin refers to the
works of Bartolus, Baldus and Accursius, and in a direct way to the Roman
law Digest and institutions.
In addition to this, throughout the High Middle Ages canon law permitted
the pope to omne ius tollere et de iure supra ius dispensare. Thus, whoever
held the right to legislate was also able to interpret the law authentically and
legitimately: Unde ius prodiit, interpretatio quoque procedat (Liber extra
5.39.31, Dekretale Inter alia).
Thomas Hobbes can be situated within this debate on absolutism, which
ran from the era of Justinian to the medieval juristic popes; and from Bodin
to the absolutism of Hobbes’s own time. Hobbes recognized the sovereign’s
inability to make every interpretive and juridical decision alone. Thus,
Hobbes legitimated the judicial right of interpretation as a product of delegation between social actors. Judges are appointed by a sovereign, and make
decisions in the sovereign’s name.5 These decisions do not acquire validity by virtue of being the private sentences of judges, but because they are
made within the authority of the sovereign. In this way, judicial decisions

become not only the sovereign’s sentence, but also binding and enforceable
law. Even interpretations of common or local laws are only legitimate if
they implicitly or explicitly suit the will of the sovereign. In other words: the
sovereign’s power over the law subdues the interpretation of it. In Hobbes’s
model there is no independent justice, no separation of state functions and
no autonomous interpretation by the judge.

3 T.

Hobbes, Leviathan, Oxford 1909, 204: The Soveraign is Legislator.
Six livres, Chap. I, 8. Principi leges a se latas sua voluntate ac sine subditorum
consensu abrogare, vel ex parte legibus derogare vel subrogare vel abrogare licere. In
the French version: Le Prince souverain peut déroger aux lois, ou icelles casser ou
annuler cessant la justice d’icelles.
5 M. Stolleis, Im Namen des Gesetzes, Berlin 2004.
4 Bodin,