What is interpretation of the law for the French judge?
There are in France two different and to some extent contradictory conceptions of the role of judges in interpretation. According to the first, which goes back to the Enlightenment, the function of judges is limited to a strict application of the law, i.e. statutory law. Because of a widespread belief that interpreting the law would be equivalent to rewriting them, interpretation was strictly forbidden. However, since judicial interpretation is obviously unavoidable, it had to be practiced in disguise through a complex mechanism that allowed judges to interpret without acknowledging it and thus exercise a huge, but hidden, power. In the 20th century, a second conception, which gradually gained considerable importance, recognized that judges interpret and indeed have law creating function that allows them to exercise some degree of political power. The second conception has not replaced the first. Although they are very different and contradictory in many ways, they coexist and even have the same effect: judges are not prevented from creating law, and their power is even reinforced by being concealed.
Troper, M. (2011)., What is interpretation of the law for the French judge?, in Y. Morigiwa, M. Stolleis & J. Halpérin (eds.), Interpretation of law in the age of enlightenment, Dordrecht, Springer, pp. 139-151.
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