法の解釈における必然と自由について

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URI http://shark.lib.kagawa-u.ac.jp/kuir/metadata/4215
Title
法の解釈における必然と自由について
Title Alternative
Theories of freedom and necessity in the interpretation of law
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Description

There are two different views in the interpretation of law. The one is the view that puts stress on justice or pertinency of law which constitutes one of the ends of law, and that insists on changing its meaning if the law is not apposite from the standpoint of social consciousness of justice. Because this view consents to the changes made in the meaning of law, it is called ""free interpretation"" or ""Freirechtstheorie."" The other view puts emphasis on ""social order"" or ""definiteness of law"" which is another end of law, and insists that law should not be arbitrarily changed in its meaning even if it is not appropriate from the standpoint of social consciousness of justice. That is to say it repudiates to change the meaning of law but law should be interpreted in the exact meaning it had when it was codified. So this view is called ""theory of necessity"" or ""Begriffsjurisprudenz."" Whether the interpretation of law should be free or of necessity, is a difficult question to decide on. However, if both justice and order are the ends of law and if appositeness and definiteness are the attributes law must be provided with, both to insist on perfect freedom and to utterly deny freedom in the interpretation of law, are equally erroneous. The interpretation of law must always be free in order to safeguard justice. Of course there must be a limit in freedom in order to prevent law from falling into confusion and indefiniteness. This limit consists either in the meaning of wording and articles or in the harmony of the code itself as a whole. The interpretation of law should be free so far as it does not impair the legitimate meaning of wording and articles, and destroy the harmony of the code itself. Regarding the criterion of interpretation of law, theory of freedom seeks the criterion in the social consciousness of justice existing at the time when the interpretation of law takes place. The theory of necessity, however, seeks the criterion in that existing at the time when law is made. When we ...

Author
著者 清水谷 隆寛
著者(ヨミ) シミズタニ タカヒロ
著者(別表記) Shimizutani Takahiro
Publication Title
香川大学経済論叢
Volume
26
Issue
1
Start Page
1
End Page
25
Publisher
香川大学経済研究所
Published Date
195305
ISSN
0389-3030
NCID
AN00038281
Resource Type
Departmental Bulletin Paper
Language
jpn
Rights
hanges, interpretation of law should accordingly be changed. In this sense alone interpretation of law is free and limitless.
Text Version
publisher
Set
香川大学
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