INTERPRETATION. — In legal language, the logical operation whose object is the investigation and explanation of the genuine meaning of the law, with the aim of determining its scope and defining its practical efficacy in juridical relations.
I. GENERAL DOCTRINE
Legal hermeneutics is a highly complex function, which is at once an art and a science: an art, insofar as it makes use of a specific system of rules; a science, insofar as the use of such rules presupposes a logical process that develops according to scientific principles.With regard to the nature of this function, doctrine disputes whether, in the hermeneutical process, the object of inquiry should be the objective content of the norm (voluntas legis) as it emerges from the words, or the subjective thought of the legislator (mens, voluntas legislatoris). The Roman sources undoubtedly favor the first hypothesis (D. 32, 1, 25, 1; 1, 3, 21; 14, 1, 1, 20); but at the same time they point out that the law is nothing other than the will declared by the legislator (D. 1, 4, 1), which must be presumed to be expressed and contained in the verbal formula used (nemo aestimandus est divisse quod non mente agitaverit, D. 1, 3, 19), and that, moreover, the true scope of the law, as the object of knowledge and interpretation, is something that stands above the merely philological and grammatical value of the words (scure leges non hoc est verba eorum tenere, sed vim ac potestatem, D. 1, 3, 17; 1, 3, 29; C. 1, 14, 5).
In reality, since the law is essentially a declaration of the legislator’s will, the function of interpretation can be none other than to reconstruct this will as accurately as possible. But since, insofar as it is declared, this will is authentically expressed and contained in a specific verbal formula, it necessarily follows that the object of interpretation is indeed the reconstruction of the legislator’s will, but only insofar as that will is expressed and contained in the verbal formula used by him. To interpret the law therefore means to reveal its objective content through the meaning of the words used in the declaration, since they must be presumed to contain and express what the legislator actually intended. The object of interpretation is not only the norm that is objectively obscure and uncertain, but also that expressed in clear and precise terms; moreover, not only statutory norms but also customary norms are subject to interpretation.
According to the organ from which it emanates, interpretation is distinguished as follows: authentic (or legislative), when carried out by the legislative power itself; judicial (or forensic, jurisprudential), when applied by the judge in his judgments; doctrinal, when resulting from the work of scholars; and usual, when induced by custom: « optima enim est legum interpres consuetudo » (D. 13, 47; CIC, can. 29).
Authentic interpretation is distinguished from the others by the binding force with which, like the law itself, it obliges everyone to understand and apply the norm in the sole meaning attributed to it by the legislator. In itself, however, it does not create new law and is therefore retroactive by its nature, since its effect is traced back to the very moment when the law that is the object of interpretation was enacted. But if it compels or extends the norm beyond the proper and common meaning of the expressions, it itself comes to constitute a new norm, acquires the force of an independent law, and consequently has no retroactive effect.
Judicial interpretation has effect only for the parties to whom the judgment is addressed; with respect to others, its effect is merely moral, more or less significant according to the authority of the judge from whom it proceeds. Even when consistently applied in identical cases, it does not restrict the freedom of other magistrates to decide otherwise, since the autoritas rerum similiter iudicaturum and the usufari are not sources of law (v. GIUBIERUDENZA). Civic consciousness and professional seriousness nevertheless require judicial interpretation to be as consistent as possible in deciding identical cases, in order to avoid arbitrariness and dangerous fluctuations, which facilitate fraud, offend, and create a sense of injustice. Uniformity in judicial interpretation is secured, in their regulatory capacity, by the higher courts (the Court of Cassation and the Supreme Tribunal of the Apostolic Signatura, respectively for the Italian and canonical legal orders).
Canonical doctrine, on the basis of the wording of can. 17, makes judicial interpretation a subspecies of authentic interpretation, placing under the latter category every interpretation possessing binding force. This attribution does not appear consonant with the sources or with general doctrine; it was not predominant in canonical doctrine before the CIC, nor does it seem informed by strict legal logic, since judicial interpretation lacks the essential attributes of authentic interpretation.
Doctrinal interpretation is entirely private in character; it is carried out by competent scholars for speculative and scientific purposes and possesses no authority other than the wholly moral authority deriving from the external standing of its authors and the intrinsic value of the arguments on which it rests.
Neither authentic interpretation nor usual interpretation can be called interpretation in the proper sense, since, above the genuine concept of interpretation, the character of law predominates in the former and the form of custom in the latter.
By reason of the manner in which it is carried out and the technical aids on which it relies, interpretation is distinguished as literal (or grammatical) and logical. In reality, these are not two distinct forms, but two moments in the interpretive process. The first is based on the literal exegesis of the words, considered in their text and context, in order to deduce their actual scope through their proper and common meaning. The second, which follows upon the grammatical interpretation when the latter proves inadequate and, in any event, serves to check its results, investigates and reconstructs the meaning of the law through a complex inquiry based on consideration of the reasons that led the legislator to enact the law (ratio or finis legis), the various concrete circumstances that occasioned it (occasio legis), its connection and parallelism with other laws of the same system, and finally the subjective intention (ment) of the legislator. This involves recourse to the various subsidiary criteria—logical-psychological, systematic, and historical—that logical interpretation employs and through which it proceeds, corresponding, if one wishes, to as many auxiliary forms of that same interpretation.
Thus, there is logical interpretation in the proper sense (logical-psychological) when the inquiry goes beyond the proper meaning of the words, either by enlargement (extensive interpretation) or by restriction (restrictive interpretation), in order to establish the objective scope of the laws on the basis of their reasons and intrinsic purposes and of the legislator’s intention; systematic interpretation, when, for the same purpose, the individual norm is studied in relation to the entire legislative system of which it forms part; and historical interpretation, when the norm is compared with its historical precedents within the evolutionary framework of the institution to which it belongs, or is considered in relation to the various circumstances that determined its birth and development, as may be inferred, for example, from the so-called preparatory works relating to the Italian codes and from the schemata relating to canonical codification. These are not, it must be repeated, genuinely distinct forms of interpretation, but subsidiary criteria or elements that together contribute to constituting the various stages of a single logical procedure.
Depending on the results it reaches, i. may be either declaratory or innovative (extensive or restrictive). It is declaratory when the results of the logical examination coincide with those of the literal exegesis, and is said to be merely declaratory when the coincidence concerns words that are in themselves clear and univocal; it is declaratory-explanatory when, without departing from the proper meaning of the terms, it resolves a conflict between logical examination and literal exegesis with regard to doubtful or ambiguous expressions. Literal exegesis, in turn, is said to be broad or narrow according as, within the scope permitted by the flexibility of the expressions, it adheres more or less strictly to their proper meaning. It is innovative (modifying, constitutive) when the logical examination, forcing the proper meaning of the terms, leads to a meaning that broadens or restricts the expressions beyond or below what their proper meaning would entail. This is done in order to spare the law the drawbacks of an absurd or inconclusive meaning, on the assumption that the legislator either said less than he intended (plus voluit, minus dixit), which leads to i. extensive, or intended less than he said (minus voluit, plus dixit), which gives rise to i. restrictive. When the constraint is such as partially to distort the proper meaning of the words, there is an interpretatio abrogans, also called immutative. Innovative i. and, all the more so, immutative i. do not constitute i. in the proper sense: rather, they are new laws which, in order to have general efficacy, require formal promulgation and do not have retroactive force.
Analogy, or analogical extension, which many authors customarily list alongside logical i. under the name of analogical i., does not, strictly speaking, constitute a genuine form of i., but is an independent procedure, substantially different from extensive i., intended to fill the gaps and remedy the deficiencies of objective law in cases not foreseen by the legislator and not covered by the law (v. ANALOGIA). It consists in extending to the aforesaid cases the application of existing laws (analogia legis) or of rules derived from the general principles informing the legal order (analogia iuris), on the basis of the similarity between them arising from the identity of the ratio legis or of the higher principles to which they are connected.
Analogy is not admissible in the i. of an ius singulare and, all the more so, in all cases in which extensive i. is not admissible, namely in general laws and, in general, in laws that constitute exceptions to other laws.
The common method for the interpretive process is summed up in the two stages or rules set out above, namely literal and logical i. In opposition to this method, which is the classical and traditional logical method handed down to us through Roman wisdom, other profoundly different methods and procedures are gaining ground today, such as the method of free inquiry, the historical-evolutionary method, and the purely positive or teleological method, associated with the so-called free-law school. These methods, although by different paths, generally agree in advocating the so-called evolutionary i., that is, in maintaining the legislative apparatus in more direct contact with the manifold manifestations of modern life, allowing the judge greater discretion or freedom to decide according to the dictates of his conscience, in order to adapt the rule to the concrete needs that have arisen after its enactment. There would be nothing to object to, were there not the real danger that, by entirely freeing the judge from the binding force of the rule, that objectivity of judgment which is the surest guarantee of justice might disappear.
II. ITALIAN LAW
In Italian law, the manner of interpreting statutes is regulated in the first paragraph of Art. 12 of the “provisions on the law in general” prefixed to the Civil Code: “In applying the law, no meaning may be attributed to it other than that made evident by the proper meaning of the words according to their connection and by the intention of the legislator.”Analogy, as a supplementary source for any gaps, is provided for in both forms of legal and juridical analogy. It is established, in fact, that “if a dispute cannot be decided by a precise provision, regard shall be had to the provisions governing similar cases or analogous matters; if the case still remains doubtful, it shall be decided according to the general principles of the State’s legal system” (Art. 12, cited above, second paragraph).
Neither analogical extension nor extensive interpretation is permitted in criminal statutes or in “those that make exceptions to general rules or to other laws,” since it is prescribed that these may not be applied “beyond the cases and times therein contemplated” (Art. 14). It must be held that this exclusion still applies to statutes “that restrict the free exercise of rights,” as was provided, in the former code, in Art. 4 of the preliminary provisions, since these statutes, although not expressly mentioned in the new text, must themselves generally be regarded as “exceptions to general rules or to other laws.”
III. CANON LAW
The current canon-law discipline concerning interpretation generally reproduces the common general doctrine and is summarized in canons 17–20.The concept of authentic interpretation is, in part, an exception: in the CIC it is not conceived in the specific sense as an interpretation made solely by the legislative power, but in the broader sense as an interpretation given by ecclesiastical authority with binding force. Thus, in addition to a general authentic interpretation, given per modum legis, a particular authentic interpretation is also distinguished, comprising, as subspecies, the judicial interpretation (per modum sententiae iudicialis) and the administrative interpretation (per modum rescripti). As mentioned, this criterion, which subsumes judicial interpretation under the category of authentic interpretation, cannot be said to conform to the Roman and canonical sources, nor to the prevailing doctrine prior to the CIC; it could therefore perhaps serve as the subject of a useful amendment in a possible revision of canon 17.
As regards efficacy, only general authentic interpretation has binding force for everyone; particular authentic interpretation, on the other hand, binds only the parties to the proceedings or the recipients of the rescript, while for others it has merely an indicative moral value, as a rule of jurisprudence or administrative practice. If authentic interpretation is merely declaratory, it does not require promulgation and is retroactive; but if it is extensive or restrictive, or even merely explanatory of objectively doubtful and obscure formulae, it must be regarded as a new law, has no retroactive force, and, in order to have validity, “must be promulgated” (canon 17 §§ 2–3).
Authentic interpretation may be made only by the legislator or by his successor, and by one who has been expressly delegated by them (canon 17 § 1). The decisions issued by the Pontifical Commission for the interpretation of the CIC are authentic (motu proprio Cum iuris, 15 September 1917; AAS, 9 [1917], p. 483 ff.).
As regards the method to be used in doctrinal interpretation, the rules laid down in the CIC essentially reproduce the same rules established by the classical method. As the primary rule, a literal exegesis of the words is prescribed first of all, considering them in the text and context, in order to attain their proper meaning on the basis of their grammatical value or of the usage of common language and legal terminology (canons 18, 49, 67, etc.). If, nevertheless, doubt and obscurity in the rule persist, recourse is provided, as a subsidiary rule, to legal parallelism, where possible; to the ratio legis, derived from a comparison between the intrinsic reason of the law and its subjective rationale; and to the occasio legis, that is, the various circumstances that determined it (canon 18).
Canon 11 also has the force of an interpretative rule: it prescribes that prohibitions contained in the law entail the nullity of prohibited acts or the incapacity of persons only when such effect is expressly or equivalently conferred upon them by the provision. Also important, as a rule of interpretation, is the provision of canon 15, which establishes that laws of which no positively certain and secure interpretation can be given (dubium iuris) do not bind.
Extensive interpretation remains explicitly prohibited in laws that establish a penalty, or in any way restrict the free exercise of rights, or that have the character of an exception to the general law. For these laws, moreover, and for certain other measures, strict interpretation is additionally prescribed (canons 19, 50, 68, 85, 200 § 1).
Analogical extension is accepted by the CIC for cases lacking any legal regulation, that is, cases governed by no express provision of law, whether general or particular. In such circumstances, the rule is to be derived from laws enacted for similar cases (analogia legis) and from the governing principles of the canonical order (analogia iuris), tempered in their application by aequitas canonica. In addition, as subsidiary means for filling gaps, the uniform jurisprudence of the apostolic tribunals and the administrative practice of the Roman Curia (stylus et praxis Curiae), as well as the common and constant position of doctrine, are indicated (canon 20).
Analogy is not admitted in penal laws, in laws containing an ins singulare, or determining the incapacity of persons (inhabilitantes) or the nullity of acts (irritantes), nor in all other laws generally for which extensive interpretation is prohibited (canons 20, 19, 11, 983, 2219 § 3).
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