The concept and means of legal interpretation in the 18th century

Jan Schröder

pp. 91-105

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

Abstract

Two developmental tendencies from the 16th to the 18th century are fundamentally apparent: first, the concept of interpretation became more restricted as interpretation came to consist only of determining the meaning of a law; of identifying the legislator's intention. Interpretation no longer allowed the reasonable development of law through the application of the remoter "ratio" of a statute. Second, the means of interpretation were extended by including the history of the statute as a means of determining the legislator's intention. Both factors are easily comprehensible when one considers the modification of the concept of law in the 17th century. Law was no longer perceived as necessarily a reasonable decree; rather, it was merely an expression of the legislator's intention. During the 16th and early 17th centuries, interpretation depended on a reasonable result; during the late 17th and 18th centuries, it depended on the order of the legislator: not truth, but authority made the law.