Judicial interpretation in transition from the ancien régime to constitutionalism

Michael Stolleis

pp. 3-17

in: Yasutomo Morigiwa, Michael Stolleis, Jean-Louis Halperin (eds), Interpretation of law in the age of enlightenment, Berlin, Springer, 2011

Abstract

If every law requires interpretation, the central question becomes: who will interpret it? In the time of absolutist kingdoms, the central political power did not allow diverging interpretations. The judge was little more than an instrument in the hand of the sovereign. From the second half of the 18th century onwards (the early modern period) state and (bourgeois) society slowly became more distant. The judge gained his independence, and also his role as an interpreter of the law. Hence, the guiding line for interpretation was no longer the (supposed) will of the sovereign, but rather the (fictitious) will of the parlamentarian legislator.