INTERPRETATION. – In legal language, it is the logical operation whose object is the investigation and explanation of the genuine meaning of the law, with a view to measuring its scope and defining its practical efficacy in relation to legal relationships.
I. GENERAL DOCTRINE
Legal hermeneutics is a highly complex function, which is at once an art and a science: an art, inasmuch as it employs a determinate system of rules; a science, inasmuch as the use of such rules presupposes a logical process that unfolds according to scientific principles.As regards the nature of this function, there is a doctrinal dispute over whether, in the hermeneutic 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). Roman sources undoubtedly favour the first hypothesis (D. 32, 1, 25, 1; 1, 3, 21; 1, 4, 1, 1, 20); yet they also warn 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 (minus aestimandus est divisse quod non mente agitaretur, D. 1, 3, 19), and that, moreover, the true purport of the law, as the term of knowledge and of interpretation, is something that transcends the merely philological and grammatical value of the words (scire leges non hoc est verba earum tenere, sed vim ac potestatem, D. 1, 3, 17; 1, 3, 29; C. 1, 14, 5).
In reality, since the law is, by its very essence, a declaration of the legislator’s will, the function of interpretation can only be that of reconstructing this will as accurately as possible. Yet since this will, as declared, is authentically expressed and contained in a determinate verbal formula, it necessarily follows that the object of interpretation is indeed the reconstruction of the legislator’s will, but only insofar as it is expressed and contained in the verbal formula he has used. To interpret the law is therefore to reveal the objective content through the meaning of the words employed in the declaration, on the assumption that they contain and express what the legislator truly intended. The object of interpretation is not merely the norm that is objectively obscure or uncertain, but also one expressed in clear and precise terms; moreover, interpretation applies not only to statutory law, but also to customary law.
According to the organ from which it emanates, interpretation is distinguished into: authentic (or legislative), which is issued by the legislative power itself; judicial (or forensic, jurisprudential), that applied by the judge in his decisions; doctrinal, deriving from the work of scholars; and customary, induced by usage: «optima enim est legum interpres consuetudo» (D. 1, 3, 47; CIC, can. 29).
Authentic interpretation is distinguished from the others by the obligatory force with which, like the law itself, it binds all to understand and apply the norm in the single meaning attributed by the legislator. In itself, however, it does not produce new law and is therefore by its nature retroactive, inasmuch as its efficacy is traced back to the very moment when the law subject to interpretation was enacted. But if it constrains or extends the norm beyond the proper and common meaning of the expressions, it itself comes to constitute a new norm, acquires the value of law, and stands as such, thereby exercising no retroactive efficacy.
Judicial interpretation has efficacy only for the parties to whom the decision is addressed; in relation to others, its efficacy is merely moral, more or less significant according to the authority of the judge from whom it emanates. Even if consistently applied in identical cases, it does not bind other magistrates to decide differently, since the authority of res judicata does not indicate what is to be decided in future, and the usus fori is not a source of law (v. GIURISPRUDENZA). Civil conscience and professional seriousness nonetheless demand that judicial interpretation be as consistent as possible in deciding identical cases, so as to avoid arbitrariness and dangerous fluctuations that lend themselves to fraud and strike at the sense of justice. To ensure constancy and uniformity in judicial interpretation, higher courts (the Court of Cassation and the Supreme Tribunal of the Apostolic Signatura, respectively for Italian and canon law systems) perform a regulatory function.
Canonist doctrine, on the basis of can. 17, treats judicial interpretation as a subspecies of authentic interpretation, subsuming under the latter every interpretation that has obligatory force. This attribution does not accord with the sources and general doctrine, nor does it prevail in canonist doctrine prior to the CIC, nor does it seem consonant with strict legal logic, since judicial interpretation lacks the essential attributes of authentic interpretation.
Doctrinal interpretation is entirely private in character, produced by competent scholars for speculative and scientific purposes, and possesses no authority other than the purely moral one derived from the extrinsic credit of the authors and the intrinsic value of the arguments adduced.
Neither authentic interpretation nor customary interpretation can properly be called interpretation in the strict sense, since in the former the character of law predominates over the genuine concept of interpretation, and in the latter the figure of custom prevails.
According to the manner in which it is performed and the technical aids it employs, interpretation is distinguished into literal (or grammatical) and logical. These are not, in fact, two distinct figures, but two moments in the interpretive process. The first is based on the literal exegesis of the words, considered in their text and context, so as to deduce their actual scope through their proper and common meaning. The second, which follows upon the grammatical and, in any case, serves to verify the results, investigates and reconstructs the meaning of the law through a complex inquiry based on the motives that led the legislator to enact the law (ratio or finis legis), the various concrete circumstances that occasioned it (occasio legis), the connection and parallelism with other laws in the same system, and, finally, the subjective intention (mens) of the legislator. In other words, it involves recourse to the various subsidiary criteria—logical-psychological, systematic, and historical—upon which logical interpretation draws and by which it is guided, corresponding, if one wishes, to as many auxiliary forms of interpretation.
Thus, logical interpretation in the proper sense (logical-psychological) occurs when the inquiry goes beyond the proper meaning of the words, whether by extension (extensive) or by restriction (restrictive), so as to establish the objective scope of the laws on the basis of their motives and intrinsic purposes and the intention of the legislator; systematic, when, for the same purpose, the individual norm is studied in relation to the entire legislative system of which it forms part; historical, when the norm is compared with its historical antecedents 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, such as may be inferred, for example, from the so-called preparatory works with respect to Italian codes, and from the schemata with respect to canon codification. These are not, it should be repeated, truly distinct forms of interpretation, but rather criteria or subsidiary elements that together contribute to the various phases of the single logical procedure.
Depending on the results it reaches, interpretation may be declaratory or innovative (extensive or restrictive). It is declaratory when the results of logical examination coincide with those of literal exegesis, and it is said to be merely declaratory when the coincidence is given in words that are clear and unambiguous in themselves; it is declaratory-explanatory when, without departing from the proper value of the terms, it resolves a conflict between logical examination and literal exegesis in relation to doubtful or ambiguous expressions. Literal exegesis, in turn, is said to be broad or narrow according as, within the scope permitted by the elasticity of the expressions, it adheres more or less rigorously to the proper meaning of the terms. It is innovative (modificatory, constitutive) when logical examination, by straining the propriety of the terms, leads to a meaning that expands or restricts the expressions beyond or below what the proper meaning of the terms would allow. This is done to highlight for the law the inconveniences of an absurd or inconclusive sense, on the assumption that the legislator either said less than he intended (plus voluit, minus dixit), which leads to extensive interpretation, or intended less than he said (minus voluit, plus dixit), which gives rise to restrictive interpretation. When the coercion is such as to evade in part the proper meaning of the words, there is interpretatio abrogans, also called immutative. Innovative interpretation, and immutative interpretation to an even greater extent, do not constitute interpretation in the proper sense: they are rather new laws, which, to have general efficacy, require formal promulgation and do not have retroactive force.
Analogy or analogical extension, which many authors customarily record alongside logical interpretation under the name of analogical interpretation, does not strictly constitute a true and proper form of interpretation, but is a distinct procedure, substantially different from extensive interpretation, aimed at filling gaps and supplementing deficiencies in objective law in cases not foreseen by the legislator and not contemplated by the law (v. ANALOGIA). It consists in extending to the aforementioned cases the application of existing laws (analogia legis) or of norms derived from the general principles on which the legal system is based (analogia iuris), on the basis of the similarity that exists due to the identity of the ratio legis or of the higher principles to which they are connected.
Analogy is not admitted in the interpretation of a ius singulare, and, to an even greater extent, in all cases where extensive interpretation is not admitted, namely in penal laws and, generally, in laws that constitute exceptions to other laws.
The common method for the interpretive procedure is summarized in the two phases or rules, set out above, of literal and logical interpretation. In opposition to this, which is the classical and traditional logical method handed down from Roman wisdom, other methods and procedures, profoundly different, are gaining ground, such as the method of free research, the historical-evolutionary, and the pure positive or teleological, stemming from the so-called school of free law, which, although by different paths, generally agree in advocating the so-called evolutionary interpretation, that is, in maintaining the legislative apparatus in more direct contact with the multifarious manifestations of modern life, allowing the judge greater discretion or freedom to decide according to the dictates of his conscience, with the aim of adapting the norm to concrete needs that have arisen after its enactment. There is nothing to be said against this, if it were not for the real danger that, by completely freeing the judge from the imperative of the norm, the objectivity of judgment that is the surest guarantee of justice might be lost.
**Italian Law.** — In Italian law, the manner of interpreting laws is regulated in the first paragraph of article 12 of the "provisions on the law in general" attached to the Civil Code: "In applying the law, one cannot attribute to it any other meaning than that made clear 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 aspects of legal and juridical analogy. It is established, in fact, that "if a controversy cannot be decided by a precise provision, regard is had to provisions that regulate similar cases or analogous matters; if the case remains still doubtful, the decision is made according to the general principles of the legal system of the State" (art. 12, cited, second paragraph).
Analogical extension and even extensive interpretation are not admitted in penal laws and in "those that make exceptions to general rules or to other laws," inasmuch as it is prescribed that these cannot be applied "beyond the cases and times considered in them" (art. 14). It is to be considered that the exclusion still applies to laws "that restrict the free exercise of rights," as was provided in the old code, in article 4 of the preliminary provisions, inasmuch as such laws, although not explicitly mentioned in the new text, are to be considered as themselves, in general, "exceptions to general rules or to other laws."
**III. Canon Law.** — The current canonical discipline regarding interpretation generally reproduces the common general doctrine and is summarized in the following notes.
It makes an exception, in part, to the concept of authentic interpretation, which in the CIC is not conceived in a specific sense as made only by legislative power, but in a more general sense as interpretation given by ecclesiastical authority with obligatory value. For this reason, in addition to a general authentic interpretation, given per modum legis, a particular authentic interpretation is also distinguished, which includes, as subspecies, juridical interpretation (per modum sententiae iudicialis) and administrative interpretation (per modum rescripti). As has been noted, this criterion, which subsumes juridical interpretation under the figure of authentic interpretation, cannot be said to be consonant with Roman and canonical sources, nor with the prevailing doctrine prior to the CIC, so that it might perhaps figure as a term for a useful revision in a possible revision of can. 17.
As for efficacy, only general authentic interpretation has obligatory force for all; particular authentic interpretation, instead, binds only the parties in a trial or the recipients of the rescript, while for others it has only indicative moral value, as a norm 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 or obscure formulas, it must be considered as a new law, has no retroactive force, and to be valid must be promulgated (can. 17 §§ 2-3).
Authentic interpretation can be made only by the legislator or by his successor and by those expressly delegated by them (can. 17 § 1). The decisions given by the Pontifical Commission for the Interpretation of the CIC are authentic (in the proper manner Cum iuris, 15 Sept. 1917; AAS, 9 [1917], p. 483 sq.).
As for the method to be used in doctrinal interpretation, the rules provided for in the CIC essentially reproduce the same rules assigned by the classical method. As a primary rule, literal exegesis of the words is prescribed first of all, considered in the text and context, in order to reach the proper meaning of the same on the basis of grammatical value or the usage of common language and juridical terminology (can. 18, 49, 67, etc.). Nevertheless, if doubt and obscurity of the norm persist, recourse is provided for, as a subsidiary norm, to legal parallelism, where possible; to the ratio legis, derived from the comparison between the intrinsic motive of the law and the subjective reason; and to the occasio legis, that is, to the various circumstances that determined it (can. 18).
It also has the value of an interpretative norm in can. 11, in which it is prescribed that prohibitions contained in the law import nullity of the prohibited acts or incapacity of persons only when such efficacy is expressly attributed to them in the provision.
Also important, as a norm of interpretation, is the provision of can. 15, which determines that laws for which an instructive interpretation cannot be given do not bind.
Extensive interpretation is explicitly forbidden in laws that establish a penalty or, in any case, coerce the free exercise of rights or have the character of exception to the general law. For these laws, indeed, and for certain other provisions, strict interpretation is also prescribed (can. 19, 50, 68, 85, 200 § 1).
Analogical extension is accepted by the CIC for cases lacking any legal regulation, that is, for which there is no express legal provision, whether general or particular. In such contingencies, the norm must be derived from laws enacted for similar cases (analogia legis) and from the governing principles of canon law (analogia iuris), tempered in application by acquired canonical doctrine. Moreover, 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) are indicated, as well as the common and constant direction of doctrine (can. 20).
Analogy is not admitted in penal laws, in laws that contain a ius singulare or that determine the incapacity of persons (inhabilitantes) or the nullity of acts (irritantes), and in all other laws in general for which extensive interpretation is forbidden (can. 20, 19, 11, 983, 2219 § 3).