Judicial Interpretation of Law

Extract

[...] We will therefore ask ourselves if it is sufficient, likely to produce a certain result, to entail a certain consequence. The subject treated is interesting because one could ask oneself when a law can be interpreted, and how it can be. Thus, the demonstration will aim to demonstrate that the interpretation of the law is an act of knowledge but can also be an act of will. And that the limits on interpretation are weak, even aiming to encourage interpretation by the judge. [...]

[...] Thus, according to him, the judge cannot interpret the law. This subject will call on us to ask if the limits imposed on the interpretative role of the rule of law by the judge are sufficient? To understand the problem posed, several notions need to be defined. We call a limit, the boundary or the point beyond which an action, an influence, a state . cannot go or extend. Here it is associated with the role, which designates the competence, the function or the utility of an institution or a mechanism in the legal organization. [...]

[...] These are denounced by certain lawyers who denounce this power of interpretation. A. Intrinsic and extrinsic methods We speak of interpretation of knowledge when the judge is required to adopt the most literal sense, it is a strict interpretation of the law. Montesquieu will say, 'The judges of the nation are only the mouth that pronounces the words of the law, inanimate beings, who cannot moderate either its force or its rigor.' The judge can then rely on two methods of interpretation, the intrinsic method and the extrinsic method. [...]

[...] This 'judicial government' highlights their full power, in France, several cases can be found where the function of the judges has taken on a completely different dimension and where they have played a central role, through their interpretations of the law and their decisions, sometimes breaking certain lives. As was the case with Judge Burgaud in the Outreau trial with the placement of 18 innocent people in provisional detention. On will call it the ' decisionism » the conception resting on the idea that every interpretation contains a part of decision. II. [...]

[...] Thus, it is up to the judge by his interpretation to complete them. In the case of voluntary legislative gaps, the legislator deliberately delegates their power to the judge, aware of the insufficiency of the law's provisions. Although shocking, these gaps are recognized by the very authors of the Civil Code. This is the case, for example, with the notion of family interest in the event of a change in marital status, thus it is a question of the interest of the spouses or that of the children, the Court of Cassation has thus decided to speak for the entire family. [...]