Beiträge zur Rechtsgeschichte Österreichs 2 / 2013, pp. 528-535, 2014/01/30
recht [durch] setzen - Making Things Legal.
Gesetzgebung und prozessuale Wirklichkeit in den europäischen Rechtstraditionen
Nineteenth century judicial interpretation in the Netherlands has been characterized as legalistic. This article deals with the question whether this legalistic interpretation witnessed a shift in emphasis during the nineteenth century: from the legislature’s intention with a legal rule to focusing on the literal wording of a statutory rule. Such possible shift from legislature to code has been investigated for judicial decisions about the enforcement of marital duties and parental authority. It appears that in these cases, any judicial method of interpretation eventually sought to serve particular purposes identified by the judiciary itself, here the effective enforcement of marital cases, which did not coincide with either the legislature’s intention or the literal wording of a provision.
