CC BY
127THEORY OF LAW
svetlana Boshno,
summary.
Keywords:
iNTERPRETATiON OF LEGAL PROViSiONS
DOI: http://dx.doi.org/10.14420/en.2013.44 web-site: http://bar-association.ru/
Doctor of Legal Sciences, Professor, Head of Chair at the Russian Presidential Academy of National Economy and Civil Service
The author examines concepts, views, goals and ways of interpreting the law, and gives the definition and implementation of the rules of interpretation regulations. Provides that the interpretation of the law refers to activities aimed at establishing their content, to the disclosure of the will ruling social forces expressed in them. Special attention is given to the judicial interpretation and its role in ensuring the consistency of enforcement, as well as the problem of interaction of legislation and judicial practice.
interpreting the law, judicial interpretation, judicial practice, legislation, consistency of enforcement, interpretation regulations.
1. Concept of the interpretation of legal provisions
^interpretation of the law means realising and explaining it. Reasons for interpreting legal rules are various: a need for uniformity in the application of the same law by different people; the complexity and ambiguity of regulations; and contradictions between laws and other features of legislative texts. Shortcomings in legislation and defects in texts are also reasons for interpretation.
The interpretation of legal provisions has to serve the purpose of a correct and uniform understanding and application of the law, and of identifying the essence of what is contained in the legislator's verbal formulation.
Interpretation is necessary to promote identification of the exact sense of legal provisions.
Interpretation combines clarifying (for the interpreter) and explaining (for others) the sense of a law. Clarification and explanation are interconnected parts of the process of the interpretation of the law. Interpretation can begin as clarification but move on to explanation. The person who carries out the interpretation is called an interpreter.
Interpretation of the law involves the process of thinking in order to establish the content of legal provisions, by finding out the meaning and sense of terms and expressions (the signs of a natural language) contained in regulations. Interpretation is an internal process of clarification that does not go beyond the consciousness of the interpreter. This characterises the gnoseological (informative) nature of interpretation. Clarifying legal provisions requires creative, intellectual and determined activity by the interpreter. The effect of the realization of the interpretation depends in many respects on the correctness, completeness
and legal accuracy of the explanation of the law.
All legal provisions may be subject to interpretation as clarification, but the difficulty of this kind of interpretation depends on the individual legal knowledge and the interpreter's level of legal understanding. The less noticeable the interpretation is, the better the legal training of the person concerned. Therefore, general erudition, level of professional training and acquired skills and abilities to work with legal matters have an impact on interpretation. Clarification inevitably accompanies the process of studying legal provisions. It can be carried out by any person regardless of his education, job or legal understanding, or of the purpose of the interpretation.
Interpretation as explanation is the activity of stating and explaining the sense of a law to other people. An explanation embodies previous informative activity in the form of judgements, concepts and conclusions. The purpose of an explanation is to establish, verbally, the sense of legal provisions. An explanation can be oral or written. Explanations include judgements and assessments of the content of legal provisions. A legal comment, a judgement, a lecture or another form of interpretation of a law can be the result of an explanation.
Taking into account the above information, interpretation of the law can be presented as an intellectual and determined activity to clarify and explain the meaning of legal provisions so that they can be fully implemented. Understanding the sense of the law, interpreting and justifying the law in the form of concretising concepts and making judgements on the original will of the legislator are carried out during interpretation.
The purpose of the interpretation of laws is the disclosure of the true sense of legislative norms, each of which represents the thoughts of the legislator expressed in words.
Before starting to interpret a rule, an interpreter has to find out whether the law has received an earlier binding explanation. In the absence of a binding explanation, the interpreter will be engaged in researching the sense of the norm by themselves.
The interpreter must establish belonging of a rule to the legislator. For example, if we are dealing with a regulatory legal act published as a part of a collection or as a separate brochure (unofficially), it is necessary to reconcile the text with the official. Such is the document in the publication of «Assembly of the Legislation of the Russian Federation”, “Rossiyskaya Gazeta,» Parliamentary Newspaper «or on the official website www.pravo.gov.ru. It is not excluded, that mistakes of the unofficial edition will be found out.
Interpretation is carried out using the following rules:
1) Rules must be interpreted using internal sources;
2) If the rule is still unclear, then it is necessary to clarify its meaning through external sources (such as the dictionary of terms, special literature).
The interpretation of rules of law is thus understood as the job of state bodies, officials, and individuals, and is aimed at establishment of the content of the rules of law, to reveal the underlying will of social forces at power.
2. Methods of interpretation of the Rules of Law
Methods of interpretation of the rules of law are special techniques, regulations and tools of knowledge acquisition in the sense of rules of law used by the interpreter, consciously or intuitively, to obtain clarity on legal phenomena.
Let's consider the most widely used methods of interpretation.
The systematic method involves understanding the sense of the rule of law by comparing it with other rules, and the identification of its relationships in the common system of legal regulations or the law system. This method examines the system-forming relationships of the law: subordination, coordination, management, origin, etc. Contradictions (conflicts) between rules and acts are identified and eliminated using the method.
The philological (language or grammatical) method represents consideration of a verbal shell of rule of law. The essence of this method is to ascertain the sense of a rule of law, by means of the grammatical analysis of the text of the regulation. The content of the philological interpretation is a set of cogitative operations allowing, by grammatical analysis of the written speech of the legislator, the elimination of possible contradictions of the sense of the rule or between rules, to find out the meaning of separate words and the text as a whole. Thus, the role of conjunctions, prepositions, commas, etc. is defined.
The verbal method comprises several elements: lexical, syntactic, logical, stylistic.
The lexical element represents consideration of each word of a rule separately, i.e. the text is divided into words and each of them is considered separately.
The lexical element is studied with the help of dictionaries, containing and capturing the meaning of words. The same word can have a different meaning in ordinary and special/legal senses.
The syntactic element represents an analysis of words in a sentence. The order of words in a sentence, the way of combining them, is analysed.
A logical element includes an analysis of relationships between elements of the sentence. Thus, some words cause the meanings of others, in phrases and for different purpose, to change. For example, the word «ownership» changes its meaning depending on the context.
The stylistic element includes the style and phraseology of contexts of statutory acts. In general, application of the given element should be limited to the general requirement of expressive neutrality of the law language and the overall style of the legislation. Nevertheless, the style and phraseology of different laws have certain differences. Thus, the style of criminal legislation is much more certain and precise in comparison with the language of civil legislation.
Here are some rules of verbal interpretation. For example, if the law specifies a meaning in which the word is used, then the given meaning should be understood as such. The rule becomes ineffective, if in any particular case it is obviously revealed that, contrary to its own definition, a legislator has given the known word a different sense.
If the meaning of the word is not clearly defined in the law, it should be specified based on a comparison of parallel usage.
Words of rules should be given the sense in which they were used at the time of publication.
Words of the law should be understood in the sense they are used in the local language or a dialect from which they are borrowed. Words can reflect originality of a certain district, or a nationality.
Words should be given a meaning associated with a certain group of people.
This rule is related to the fact that the meaning of the word depends on its addressee. For example, the meaning of the term “security” changes, depending on the situation and the addressee.
Each rule, taken as a whole, must be given the meaning corresponding to its syntactic structure.
Historical method means that the interpretation takes into account the historical conditions of the publication of the statutory act. The history of the adoption of rules, goals, and motivation, leading to its adoption, and the socioeconomic and political factors of law-making is explored. The method is important for understanding those rules that have been adopted for a long time and cannot be understood without special efforts. Preconditions of historical interpretation exist also in the fact that in many countries rules that apparently have become outdated are not revoked.
The logical method of interpretation of the law consists of the use of means of formal and dialectical logic in learning legal phenomena. Separate words are not an object of research but internal relationships between portions of the document, the logical structure of legal instructions. Thus, the logical and language analysis is combined. Logical operations such as deduction, the transition from the general to the special, cause and effect, and comparison of concepts on volume and others are most demanded.
3. Official Interpretation
Official interpretation represents an explanation of sense of rules of law, proceeding from a body of the government, local self-government, the official, and having a binding character for all subjects, whose relationships are regulated by the rule explained. Official interpretation sometimes refers to legal, i.e. based on the law, mandatory.
Official interpretation is in its turn divided into some subtypes: standard (normative) and non-regulatory (causal).
Normative interpretation is an explanation of the sense of law, with respect to a wide range of social relations and designed for repeated use. It is not personally identified in respect to subjects and public relations.
Standartization of interpretation of the law should be understood:
- as state obligatory of explanation;
- as a possibility of its numerous applications;
- as raising awareness for a wide range of public relations.
Those statutory acts that, from the point of view of the certain authority, require additional explanation due to detected difficulties, wrong or controversial practice of their application, ambiguity of their text or to any other reasons, are exposed to normative interpretation. The goal of interpretation is to eliminate wrong and controversial practice of enforcement, ensuring its consistency. Any body having the right for normative interpretation, within the limits of the competence, is not limited nor in the motives or reasons explaining rules of law.
Normative clarification does not contain and should not contain separate rules, they only update, explain and specify the provisions of the interpreted act. Thus, clarification can explain who normative instructions may effect, the rights and duties of subjects of law, what specific rules of law require, or under what conditions a law should be implemented. Interpretation may not make amendments and changes to the existing rules, distort or supplement the legal
will of the legislator. Obviously, normative interpretation cannot be carried out in isolation from its environment, but it should not mean that during the interpretation process, under the pretext of changing conditions or needs of political and economic development, it is possible to deviate from the exact meaning of the rule of law, to include in the rule, content that is at variance with the intention of the legislator.
Law-making and interpretation are different concepts. The interpreter does not create law, but merely identifies, establishes the will expressed in the regulatory act. Law-making is the creation of a new rule of law.
Normative interpretation has no independent meaning, cannot be applied independently and separately from the interpreted Act and fully shares its fate. It is in force there and then, where and when the statutory act is in force. In particular, cancellation or modification of the statutory act automatically cancels its normative interpretation.
Authentic interpretation is the explanation of the law proceeding from the body that earlier has issued explanatory provisions. «Authentic» means valid and original, based on the primary source. Acts of authentic official interpretation are statutory.
Casual interpretation of the law is clarification of the sense of rules individually to specific public relations, explanation of law in relation to a specific life event. More often, such interpretation of law is given by judicial and other competent authorities on legal cases being considered by them. Casual interpretation acts have single value, but made on basic cases and, especially, in conditions of a gap in the law, acquire the value of precedent.
As a result of casual interpretation, a precedent interpretation appears- a model developed by law enforcement practice, that is a standard of required understanding and application of any rules of law, formulated when considering a particular legal case which has received a recognition in legal science.
4. informal interpretation
An informal interpretation is an explanation of the law, which has been provided by non -authorized specifically bodies and individuals for it, and has no binding character. It does not generate mandatory legal consequences and is made, for example, by lawyers, scientists, individual citizens. Its meaning is defined by authority of subjects, their special knowledge and persuasiveness of the form in which interpretation is carried out.
Types of informal interpretation - doctrinal and scientific, ordinary and professional - specified by subjects of interpretation.
Ordinary interpretation is made through the understanding and clarification of the law by citizens, who are not specialists in jurisprudence. It is reflected in respect to law, justice, legality and other verbal expressions of legal validity understanding. Ordinary interpretation generally has an oral form.
Lawyers are subjects of professional interpretation. Professional interpretation differs in completeness, and systematic nature. A lawyer views any rule of law in the context of the system of law. Interrelations of the interpreted rule with other rules are obvious for a lawyer.
Individuals with the scientific degrees of candidates and doctors of sciences in the field of law are subjects of scientific interpretation. As a rule, these are employees of scientific research and educational institutions. Scientific
interpretation can have both oral (lectures), and the written form (books, articles, etc.). Depth, motivation, and completeness are peculiar to scientific interpretation.
Doctrinal interpretation is given by competent persons in authority. Such interpretations have great persuasiveness, and deep reasoning. They have a huge impact on public relations, although they do not carry an official nature. Feature of doctrinal interpretations is that they do not reflect the position of a single specialist, but the established opinion, school, objectively existing situation. Thus, the doctrinal interpretation is scientifically sound, almost valuable, trusted judgment on legal phenomena.
5. Types of interpretation on Volume
Classification of the interpretation may be made depending on the volume. This is due to the fact, that in certain situations a person interpreting a rule turns out to face the need to understand it already or, conversely, broader than it can be seen at the first sight from the text of the law. This led to the emergence in the theory of law an expansive (liberal), restrictive and literal (adequate) interpretation.
The literal interpretation is that understanding of the sense of the interpreted rule of law is fully in line with the text of the source of law. The result of such interpretation is adequate to the verbal form of enactment.
Expansive (liberal) interpretation takes place there where the valid sense of rule of law is beyond its textual form.
A restrictive interpretation is expressed in such a result of the interpretation, when a true sense of rule of law should be understood in a restrictive manner, i.e., as it is expressed in the verbal text.
6. Acts of interpretation
The act of interpretation of the law is the act of explaining how to understand and enforce laws. Acts of interpretation of law represent a multilevel system of legal acts with different legal efficacy, practical significance or legal properties.
Acts of official interpretations represent a system of subsidiary legal acts, serving as an important tool for the proper and effective implementation of the law by establishing institutional support rules of understanding and the application of existing legislation. Acts of official interpretations have the following characteristics: 1) State mandatory; 2) they correspond to the competence of the issuing authority; 3) they have a form similar to other legal acts; 4) they are organised in a hierarchical system. 5) they have a purposive character; 6) they serve as the legal guarantee and basis of law and order.
A form of interpretation law acts is a critical issue. As a rule, acts of official interpretation are published in the form of legal documents. Often, requirements for the name and content of these documents are established by legislation.
Special attention should be paid to acts of judicial interpretation. They can be of a casual character, if given in a particular case. Such interpretations are found in court decisions, sentences, definitions. These acts are law enforcement.
The role of reviews of judicial practice is somewhat different. They must ensure the unity of law enforcement in the state. Reviews are of a general nature and contain recommendations to address any category of cases. These documents help provide general management within the judicial system.
However, such explanations are state binding power, authority of the highest judicial organ and have a direct impact on the entire governing judicial practice. Failure to do so leads to the abolition of judicial acts rendered without regard to
the provisions contained in the official explanations of highest courts. They have a significant impact on the entire system of legislation and are taken into account by law-making bodies when updating legislation.
7. Judicial interpretation and Law-making
Judicial interpretation has a varied influence on the formation and development of the law. It ranges from persuasion to binding.
The influence of judicial practice is the impact of the established line of law enforcement on the process of creation of regulation acts by law-making bodies. As a result of the impact in the system of legal acts, changes occur in terms of modification, addenda or repeal.
Two systems - judicial practice and legislative acts - are in constant interaction. The nature of this interaction depends on the type of legal system and the type of legal consciousness of the state concerned. Anglo-American and Romano-Germanic legal systems essentially differ in assessing the interaction of judicial practice and legislation. Romano-German legal doctrine does not recognise judicial practice as the source of law, and does not classify courts as a law-making body. Anglo-American legal doctrine considers judicial precedent as a source of law and judicial interpretation as a law. These differences in legal systems are the basis for understanding the interaction between judicial and legislative powers, magisterial law and legislation. In the Anglo-American legal system, there is no reason to talk about the impact of judicial practice on lawmaking because these concepts are the same (law and precedent). In the Roman-Germanic legal system, interaction of precedent and legislation is a critical issue. Let's cover some of the most acute problems in interpreting and law making.
The type of legal consciousness is also important. For a sociological understanding of the law, the problem is irrelevant, since law manifests in judicial practice. Indeed, one cannot have influence on themselves: law on law. This type of legal consciousness involves an ascending line, from practice to law-making. The positivist model of legal consciousness only allows the influence of a judicial interpretation of law on legislation.
The interaction of rules of legislation and practice occurs continuously. Statutory acts consist of abstract formulas. A legislator creates it as construction, which should in future give rise to massive public relations, i.e. rules of law claim to typicality in the future. The advanced knowledge of a legislator can justify itself, but may not take place. It is practice, including judicial, that provides the evaluation of the application of abstract rules to real-life relationships.
Influence of judicial interpretation on legislation and law-making has a number of forms: 1) formation of legal provisions, 2) addition of legislation, 3) change of the sense of legislation in the law enforcement process.
The perception of judicial practice by a legislator is a kind of direct impact. In this scenario of impact, there are two possible effects: in the first case, a legislator takes into account the results of consideration of particular cases by courts in law-making. It is a means in which a legislator is acting based on the situation (case). In the second case, the legislative body elevates established practice to the statutory act, a line of law enforcement, identified on its initiative.
Individual law enforcement acts may be received in the legislative process. In this case, a court actually replacing a legislator creates rules in law enforcement acts. A solution to the issue is then fixed in the common rule of law. This
mechanism has major defaults. In this case, the legislative body is being replaced by the judicial. Single episodes of judicial activity, as reflected in decisions on individual cases, should not be used directly by a legislator, because they make their decisions vulnerable. Only the established line of law enforcement practice should be received by legislative bodies.
Judicial practice may change the understanding of the sense of a rule of law. A court, in the course of its activity, changes legislative provisions. The results of judicial understanding and interpretation add to, or change, specific structural elements of existing rules of law - disposition, hypothesis, and the authorisation of a rule And then, getting a great value, almost transformed into a rule of law.
In the Roman-Germanic legal system, it is preferable to improve the legislation in the course of the law-making procedure.
The direct impact of judicial practice on law-making appears to be unacceptable to Romano-German States since judicial activity develops into legislative, and acts of judicial power become a form of law. Romano-Germanic doctrine could not recognise the acts of courts (precedents) as a form of law.
Judicial interpretation has an effect not only on the normative legal acts. It also affects traditions, doctrine and other forms.
