著者

松島 裕一

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2005, pp.176-184,193, 2006-10-30 (Released:2010-02-15)

参考文献数

15

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This article is aimed at clarifying how concepts and techniques of legal interpretation have developed in legal history by introducing “Recht als Wissenschaft” by Jan Schroder, a legal historian in Germany. His study is important for contemporary theory of legal interpretation, especially how he explains the concept of legal interpretation in three periods by showing its connection to the concept of law. According to Schröder, the three theories of legal interpretation from 1500 to 1850 can be characterized as follows: (1) From 1500 to 1650, legal interpretation was to pursue rational reason of law, for jurists considered law as God's commands or human rational commands. In this period, jurists were able to extend rational reason of law quite freely. So jurists were not aware of the difference between analogy and interpretation. (2) From 1650 to 1800, legal interpretation was to pursue actual legislator's intensions, for jurists considered (positive) law as mere commands of a sovereign. Positive law had nothing to do with rationality. In this period, jurists were able to go beyond the meanings of words by interpretation, but not legislator's intensions. (3) From 1800 to 1850, legal interpretation was to clarify the historical meanings of words by means of philology, for jurists (of the historical school) considered law as historical documents that a nation had produced over a long time. In this period, jurists could not go beyond the meanings of words by interpretation because interpretation was philological exegesis. Therefore, the concept of legal interpretation became the narrowest of the three periods. Historically, it is obviously that the theory of legal interpretation is strongly connected with the concept of law. To construct the best theory of legal interpretation today, we must always consider not only what interpretation is but also what law is.