Bentham on the interpretation of laws
Source PublicationJournal of Legal History
ISSN17440564 01440365
AbstractA widely accepted view is that, for Bentham, legal interpretation was a mechanical or technical matter. This paper reconstructs Bentham’s complex theory of legal interpretation and challenges the above view. It demonstrates that Bentham’s theory of legal interpretation consists of three major theses. First, when there are different interpretations of a law, the authoritative interpreter ought to be the sovereign legislature. Second, strict interpretation attributes to the legislature the will it actually has when making the law. The strict interpretation of a law ought to take the text of the law itself as the standard, and then be guided by its purpose. Third, liberal interpretation attributes to the legislature a will that it would have had if it had been aware of the case before the court, but which it in fact failed to have through inadvertency. Liberal interpretation is a necessary evil, and must be checked: liberal interpretation ought to be made according to the pattern and materials of the old laws, and be subject to the authority of the sovereign legislature.
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Document TypeJournal article
CollectionUniversity of Macau
Corresponding AuthorZhai,Xiaobo
AffiliationFaculty of Law (FLL),University of Macau,,Taipa,Macao
First Author AffilicationFaculty of Law
Corresponding Author AffilicationFaculty of Law
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GB/T 7714
Zhai,Xiaobo. Bentham on the interpretation of laws[J]. Journal of Legal History,2017,38(3):282-307.
APA Zhai,Xiaobo.(2017).Bentham on the interpretation of laws.Journal of Legal History,38(3),282-307.
MLA Zhai,Xiaobo."Bentham on the interpretation of laws".Journal of Legal History 38.3(2017):282-307.
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