Interpretation as a ritualistic veil in courts’ law-making

Result code in IS VaVaI

<a href="https://www.isvavai.cz/riv?ss=detail&h=RIV%2F00216224%3A14220%2F18%3A00108941" target="_blank" >RIV/00216224:14220/18:00108941 - isvavai.cz</a>

Result on the web

—

DOI - Digital Object Identifier

—

Result language

angličtina

Original language name

Interpretation as a ritualistic veil in courts’ law-making

Original language description

Continental legal systems are quite wary, if not outright derogatory, when it comes to acknowledging that courts would actively engage in any law-making. Description of the courts’ role is usually centred on their part in the application of law, one that allows for recognising their authoritative role in interpretation of law, but one that denies their active role in the process of making law. Yet there are studies (Lasser 1994-1995, 2003) that show that even a court such as the French Cour the Cassation whose decisions are formulated as simple syllogistic applications of legal rules that do not allow or require detailed description of the interpretative processes that the court might have gone through before pronouncing such a simple sentence of a decision, engage in sometimes complicated interpretive processes, ones that are not dissimilar to active creation of law. Other continental legal systems, such as the German or Czech one, require certain level of justification, including interpretation of applied provisions, but the required depth of such justification often quite differs from what is expected in common law systems. Moreover, there are theoreticians (Knapp 1995) who point out that a legal rule (or, in a more typical continental terminology, a legal norm) is only an end product of interpretation of a text of legal regulation, which would mean that a law becomes law only when interpreted. To avoid sheer subjectivism in interpretation, legal theory provides the interpreters with “methods” (Savigny), yet those methods, when looked into more closely, rather overlap with one another and still provide quite a lot of semantic space in which the interpreter may move. These methods of interpretation are consistently taught, and their usage, often reduced to the level of simple labels, is being reinforced throughout the process of legal education to the extent that they may be analysed in terms of their ritualistic presence in justifications of judicial decisions. In this respect, this paper will tackle interpretation of law as a ritualistic veil behind which the reader-interpreter introduces her own experience and knowledge into the law and thus creates law.

Czech name

—

Czech description

—

Type

O - Miscellaneous

CEP classification

—

OECD FORD branch

50501 - Law

Project

—

Continuities

I - Institucionalni podpora na dlouhodoby koncepcni rozvoj vyzkumne organizace

Publication year

2018

Confidentiality

S - Úplné a pravdivé údaje o projektu nepodléhají ochraně podle zvláštních právních předpisů