INTERPRETATION. - In legal language it is the logical operation whose object is the search for and explanation of the genuine meaning of the law, with the aim of measuring its scope and specifying its practical effect on legal relations.
I. GENERAL DOCTRINE
Legal hermeneutics is a highly complex function, which is at once art and science: art, insofar as it makes use of a determinate system of rules; science, insofar as the use of such rules presupposes a logical process that develops upon scientific principles.
Concerning the nature of this function, there is doctrinal dispute as to whether in the hermeneutic process the object of the inquiry should be the objective content of the norm (voluntas legis) as it results 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 they warn, at the same time, 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 dixisse quod non mente agitaverit, D. 1, 3, 19), and that on the other hand the true scope of the law, as the term of knowledge and of interpretation, is something that stands above 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 will of the legislator, the function of interpretation can be none other than that of reconstructing this same will as exactly as possible. But since this will, insofar as it is declared, is authentically expressed and contained in a determinate verbal formula, it follows necessarily that the object of interpretation is indeed the reconstruction of the will of the legislator, but only insofar as it is expressed and contained in the verbal formula he used. To interpret the law therefore means to reveal its objective content through the meaning of the words used in the declaration, insofar as it must be presumed that they contain and express what the legislator really intended. The object of interpretation is not only the norm that is objectively obscure and uncertain, but also that rendered in clear and precise terms; moreover, not only the legislative norm but also the customary one is subject to interpretation.
According to the organ from which it emanates, interpretation is distinguished into: authentic (or legislative), which is made by the legislative power itself; judicial (or forensic, jurisprudential), that applied by the judge in his sentences; doctrinal, that deriving from the work of scholars; customary, that induced by custom: « optima enim est legum interpres consuetudo » (D. 13, 47; CIC, can. 29).
Authentic interpretation is characterized, in comparison with the others, by the binding efficacy with which, on a par with the law itself, it obliges everyone to understand and apply the norm in the single meaning attributed to it by the legislator. In itself, however, it does not produce new law and is therefore by its nature retroactive, insofar as its efficacy is traced back to the very moment in which the law that is the object of interpretation was issued. 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 value of a law standing on its own, and therefore exercises no retroactive efficacy.
Judicial interpretation has efficacy only for the parties to whom the sentence is addressed; with respect to others its efficacy is only moral, more or less relevant according to the authority of the judge from whom it proceeds. Even if constantly applied in identical cases, it does not bind the freedom of other magistrates to decide differently, since the autoritas rerum similiter iudicaturum and the usus fori are not sources of law (v. GIURISPRUDENZA). Civil conscience and professional seriousness require, however, that judicial interpretation be as constant as possible in deciding the same cases, in order to avoid arbitrariness and dangerous fluctuations, which lend themselves to frauds, offend and give the sensation of injustice. To ensure this uniformity of judicial interpretation, the tribunals of higher degree provide, with a regulating function (the Court of Cassation and the Supreme Tribunal of the Apostolic Signatura, respectively for the Italian and the canonical systems).
Canonistic doctrine, on the basis of the dictate of can. 17, makes judicial interpretation a subspecies of authentic interpretation, bringing under the figure of the latter every interpretation that has binding value. Such an attribution does not seem consonant with the sources and with general doctrine, does not appear prevalent in canonistic doctrine prior to the CIC, nor does it seem informed by juridical logic, since judicial interpretation lacks the essential attributes of authentic interpretation.
Doctrinal interpretation has an entirely private character, is made by the competent for speculative and scientific purposes, and has no authority other than that, entirely moral, which derives to it from the extrinsic credit of the authors and from the intrinsic value of the arguments on which it rests.
Neither authentic nor customary interpretation can be called interpretation in the proper sense, since, above the genuine concept of interpretation, the character of law predominates in the first, the figure of custom in the second.
By reason of the manner in which it is made and of the technical aids it employs, interpretation is distinguished into literal (or grammatical) and logical. In reality these are not two distinct figures, but two moments of 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 effective scope through their proper and common meaning. The second, which takes over from the grammatical when this proves unsuitable and, in any case, in order to check its results, investigates and reconstructs the meaning of the law through a complex inquiry, on the basis of recourse to the motives that led the legislator to issue the law itself (ratio or finis legis), to the various concrete circumstances that provoked it (occasio legis), to the connection and parallelism with other laws of the same system and, finally, to the subjective intention (mens) of the legislator. This is, that is to say, recourse to the various subsidiary criteria, logical-psychological, systematic and historical, which logical interpretation employs and upon which it moves, corresponding, if one wishes, to as many auxiliary forms of it.
There is thus logical interpretation in the proper sense (logical-psychological) when the inquiry goes beyond the proper meaning of the words either by enlargement (extensive) or by restriction (restrictive), in order to establish the objective scope of the laws on the basis of their motives and intrinsic purposes and of the intention of the legislator; systematic, when, for the same purpose, the individual norm is studied in relation to the whole legislative system of which it forms part; historical, when the norm is placed in comparison with its historical precedents in 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 deduced, for example, from the so-called preparatory works with respect to the Italian codes, and from the schemata with respect to the codification of canon law. These are not, it is repeated, truly distinct forms of interpretation, but subsidiary criteria or elements, which together contribute to constituting the various phases of the single logical procedure.
Depending on the results it reaches, interpretation may be either declaratory or innovative (extensive and restrictive). It is declaratory when the results of the logical examination coincide with those of the literal exegesis, and it is called merely declaratory when the coincidence occurs upon words that are in themselves clear and unambiguous, and declaratory-explanatory when, without departing from the proper meaning of the terms, it resolves a conflict between the logical examination and the literal exegesis in relation to doubtful or ambiguous expressions. Literal exegesis, in turn, is called broad or narrow according as, within the scope permitted by the elasticity of the expressions, it adheres more or less strictly to their proper meaning. It is innovative (modificative, constitutive) when the logical examination, forcing the propriety 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 sense, on the assumption that the legislator has either said less than he intended (plus voluit, minus dixit), which leads to extensive interpretation, or has intended less than he said (minus voluit, plus dixit), which gives rise to restrictive interpretation. When the coercion is such as in part to destroy the proper meaning of the words, there is interpretatio abrogans, also called immutative. Innovative interpretation and, all the more, immutative interpretation do not constitute interpretation in the proper sense: they are rather new laws, which, in order to have general effect, require formal promulgation and have no retroactive force.
Analogy, or analogical extension, which many authors are wont to record alongside logical interpretation under the name of analogical interpretation, does not strictly constitute a true and proper form of interpretation, but is a procedure of its own, substantially different from extensive interpretation, aimed at filling the gaps and supplying the deficiencies of objective law in cases not provided for by the legislator and not contemplated by the law (v. ANALOGIA). It consists in extending to the aforesaid cases the application of already existing laws (analogia legis) or of norms drawn from the general principles by which the legal order is informed (analogia iuris), on the basis of the similarity existing between them by reason of 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, all the more, in all cases in which extensive interpretation is not admitted, that is to say, in general laws and, in general, in laws that constitute an exception to other laws.
The common method for the interpretive procedure is summed up in the two phases or rules, set out above, of literal and logical interpretation. In opposition to this, which is the classic and traditional logical method, handed down to us from Roman wisdom, other methods and procedures, profoundly different, are today gaining ground, such as the method of free inquiry, the historical-evolutionary and the positive or purely teleological, stemming from the so-called school of free law, which, albeit by different paths, generally agree in advocating so-called evolutive interpretation, that is, in keeping 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 the concrete exigencies that have arisen after its enactment. There would be nothing to object to, were there not the real danger that, by wholly freeing the judge from the operation of the norm, that objectivity of judgment which is the surest guarantee of justice might be lost.
II. ITALIAN LAW
In Italian law the method of interpreting laws 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 other meaning may be attributed to it than that made manifest by the proper meaning of the words according to their connection and by the intention of the legislator."
Analogy, as an integrative source for any gaps, is provided for under 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 the provisions that regulate similar cases or analogous matters; if the case still remains doubtful, it is decided according to the general principles of the legal order of the State" (art. 12, cited, second paragraph).
Neither analogical extension nor extensive interpretation is admitted in penal laws and in "those that make an exception 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 held that the exclusion still applies to laws "that restrict the free exercise of rights," as was provided, in the old code, in art. 4 of the preliminary provisions, inasmuch as such laws, although not explicitly mentioned in the new text, are themselves to be regarded in general as "an exception to general rules or to other laws."
III. CANON LAW
The current canonistic discipline concerning interpretation generally reproduces the common general doctrine and is summarized in cann. 17-20.
An exception, in part, is the concept of authentic interpretation, which in the CIC is not conceived in a specific sense as made by the legislative power alone, but in a more general sense as interpretation given by ecclesiastical authority with binding force. For this reason, besides a general authentic interpretation, given per modum legis, a particular authentic interpretation is also distinguished, which includes, as subspecies, the judicial (per modum sententiae iudicialis) and the administrative (per modum rescripti). As was mentioned, this criterion, which brings judicial interpretation under the heading of authentic interpretation, cannot be said to be consonant with the Roman and canonical sources, nor with the doctrine prevailing before the CIC, for which reason it might perhaps figure as the subject of a useful adjustment in a possible revision of can. 17.
As to efficacy, only the general authentic interpretation has binding force for all; the particular authentic interpretation, on the other hand, binds only the parties to the suit or the addressees of the rescript, while for others it has only moral indicative value, as a norm of jurisprudence or administrative practice. If the authentic interpretation is merely declarative, it does not require promulgation and is retroactive; but if it is extensive or restrictive, or even merely explanatory of formulas objectively doubtful and obscure, it must be considered as a new law, it 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 who have been expressly delegated by them (can. 17 § 1). Authentic are the decisions given by the Pontifical Commission for the Interpretation of the CIC (motu proprio Cum iuris, 15 Sept. 1917; AAS, 9 [1917], p. 483 ff.).
As to the method to be used in doctrinal interpretation, the rules provided in the CIC reproduce in substance the same rules assigned by the classical method. As a primary rule, the literal exegesis of the words is prescribed first of all, considered in text and context, in order to reach their proper meaning on the basis of grammatical value or the usage of common language and of juridical terminology (cann. 18, 49, 67 etc.). If doubt and obscurity of the norm continue notwithstanding this, there is provided, as a subsidiary norm, recourse to legal parallelism, where possible; to the ratio legis, deriving 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).
Can. 11 also has the value of an interpretive norm, in which it is prescribed that the prohibitions contained in the law import nullity of the prohibited acts or incapacity of persons only when such efficacy is expressly or equivalently conferred upon them in the provision. Also important, as a norm of interpretation, is the provision of can. 15, where it is determined that laws of which no positively certain and sure interpretation can be given (dubium iuris) do not oblige.
Extensive interpretation remains explicitly forbidden in laws that establish a penalty or that restrict, in any way, the free exercise of rights or that have the character of an exception with respect to the general law. For these laws, indeed, and for certain other provisions, strict interpretation is further prescribed (cann. 19, 50, 68, 85, 200 § 1).
Analogical extension is accepted by the CIC for cases lacking any juridical regulation, that is, for which no express provision of law, whether general or particular, is in force. For such contingencies, the norm must be derived from laws issued for similar cases (analogia legis) and from the governing principles of the canonical order (analogia iuris), tempered, in application, by aequitas canonica. Moreover, as subsidiary means for filling gaps, there are indicated 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 direction of doctrine (can. 20).
Analogy is not admitted in penal laws, in laws that contain an ius singulare or that determine incapacity of persons (inhabilitantes) or nullity of acts (irritantes), and in all other laws in general for which extensive interpretation is forbidden (cann. 20, 19, 11, 983, 2219 § 3).
Bibliography11 works
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