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4 - The interpretation of the laws

Published online by Cambridge University Press:  05 June 2012

Richard Bellamy
Affiliation:
University of East Anglia
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Summary

A fourth consequence. Nor can the authority to interpret the laws devolve upon the criminal judges, for the same reason that they are not legislators. The judges have not received the laws from our fore-fathers as if they were a family tradition or a will which leaves its inheritors no duty but that of obedience. Rather, they receive them from the living society or from the sovereign which represents it as the legitimate repository of the current sum of the will of the whole of society. The judges do not receive the laws as obligations of an ancient oath, which is void because it enchains the wills of those not yet born, and iniquitous because it reduces men from a state of society to the state of a herd. Rather, they receive them as the result of a tacit or express oath which the united wills of the subjects have made to the sovereign, as the bonds necessary to curb and control the domestic turbulence of particular interests. Such is the laws' physical and real authority. Who, then, shall be the rightful interpreter of the law? Shall it be the sovereign, that is the repository of the current will of all, or the judge, whose task is merely that of enquiring whether a given man has committed an unlawful act or not?

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Publisher: Cambridge University Press
Print publication year: 1995

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