On Options of Law-interpretation in the Context of the General Part of the Civil Code Act
| Author | Raul Narits |
| Pages | 58-65 |
Raul Narits
On Options of Law-interpretation in the Context of the General Part of the Civil Code Act
In social terms, every law serves as one of the means aimed at the achievement of the functioning and reproduction of the society as a whole. This objective is accomplishable for the society if the activities of the people living in the society are co-ordinated at least within the framework provided by law. It is correct that, differently from several other means of social regulation, the functioning of law is based on its authoritative character1. However, it is also evident that laws are not created in order to provide parliaments with work or to be understood by only a narrow circle of members of the society2. Legislation, and law contained in the legislation, have always been the state's most important tool for informing practically all members of society about the behaviour expected from them by the society organised as a state. Hence we reach the logical conclusion that behaviour in compliance with laws is immanently based on the assumption that laws are understood.
For understanding the law, it is rational to distinguish between two aspects thereof. The first aspect is related to the requirement of comprehensibility established for laws ? ius scriptum ? themselves. Common sense tells us that every law must be written in a language which is comprehensible to the addressees of the law. At the same time, it is well known that the language of law, like any other technical language, is more accurate than general language. The text of law is furnished with the necessary exactitude by means of terminology, including legal terminology. In Estonian legal literature, it has been stressed that "the need to interpret a legal norm, i.e. to open its content, arises from the possible ambiguity of its formulation. In theory, it is correct to state that no norm is absolutely univocal"3. And hence a conclusion is drawn: "Interpretation should, thus, be an immanent part of the activities of the implementer of a norm." 4 Linguistic problems or, more exactly, the problems of legal language are undoubtedly related to interpretation of law. This applies particularly in Estonia, where a dialogue between a qualitatively new way of thinking and language is going on in connection with building a qualitatively new social system organised as a state.
However, interpretation of law cannot be reduced solely to ambiguity of formulation.
The main emphasis of this article is laid not so much on circumstances relating to the language of law but, rather, on the complicated problem of understanding the law ? on the skill to interpret laws. Such skill cannot be reduced to merely the knowledge and use of the rules of language ? semantics, syntax, etc. The problem is of a serious theoretical content and relates, in the final stage, to legal philosophy. Namely, understandings of the relationship between a norm and its interpretation have had a substantial influence on the development of interpretation theories and even concepts of legal philosophy5. It must be specified, in this point, that the author does not share the "scientific" pessimism, which has been expressed, to some extent, in specialist literature with regard to interpretation. In specific terms, in some cases interpretation is not considered to be a theoretical problem but, rather, a problem arising directly in practice. In that respect, there are some disputable aspects, but this does not render interpretation characteristically theoretical6.
Additionally, attention must be directed to the fact that making a law comprehensible through interpretation correlates to understanding law as such. The core of the problem actually lies in the question of which means and techniques should be applied to reach, through the provisions of the law, the purpose of the law, i.e. an understanding which is accordant with law. Thereby, I want to state that interpretation is in immediate relation with the interpreter's person and views or even convictions regarding the principal parameters of law. On the basis of historical experience and modern views, these would, very briefly, be as follows: the legal positivist position, which regards law as a system of legal norms; the realist position, which lays emphasis on the social dimensions of law; within the last decades, however, a position regarding law as a communicational phenomenon has been gaining strength rapidly. As a generalisation, it can probably be stated that law is a normative communicational and social structure. Law encompasses all aspects relating to that part of human behaviour which is relevant in legal terms. Therefore, in order to cognise law, one must be able to see and, naturally, recognise the normative correlation between law and the society. Law cannot be, and is not, merely a result of the decisions of individuals or groups of individuals. However, the legislator, i.e. the parliament in the states established upon the so-called Western democracy, can furnish law with some formulations about methods and techniques which can be used by a subject for making law comprehensible (or more comprehensible) for himself or herself.
The object of interpretation can be only a text with a binding (normative) meaning, interpretation of which results in a necessary legal norm expressed by means of legal text7. A norm can be used as a basis for actual behaviour, or ignored, only after we have cognised it. A legal norm as such cannot, however, be interpreted. Nevertheless, the situation becomes interesting when instructions for understanding law have been fixed by the legislator in a legal text as a formal legal norm. Figuratively, this extends the route "legal text ? making it understandable (interpretation) ? behaviour" by one important stage: "legal text ? legal text as an instruction for interpretation ? interpretation of the rest of the legal text ? behaviour".
In this point, several questions can be posed. For example, should instructions for interpretation be presented at all in the text of a law? To what extent are the instructions for interpretation provided in one legal text binding on other legal texts where such or other kind of instructions for interpretation cannot be found? To what extent must instructions for interpretation be positivised in the established legal order? We can even ask whether instructions for interpretation need interpretation themselves.
In the journal Juridica, M. Rosentau has touched on the subject of distinguishing between interpretation and understanding in the context of contractual certainty and trust between the parties. He wrote: "We can imagine a situation of precontractual negotiations, in which the parties have no problems with understanding each other; we can also imagine the other extreme, in which parties come to negotiate questions completely unknown to the other party ? unknown concepts, goods or traditions /.../. The handling of such unknown circumstances involves two aspects: knowing such circumstances and understanding such circumstances." 8 Rosentau finds that interpretation is necessary only for understanding new and unknown concepts. Indeed, there are practical grounds for the opinion that an implementer of law is not under the obligation to interpret each legal norm separately. In legal order, we can find, so-to-say, univocal norms allowing routine decisions. In addition, interpretation may have become evident from the previous law-interpretation practice and be so convincing that there is no need to correct or adjust the existing version of interpretation9.
However, in a situation in which the adopter of a legal decision faces something new and unknown, there will be a question of where to find fulcra for interpreting the law. How unknown are, then, the rules for understanding the law itself ? the "laws of jurisprudence"?
Actually, that question was answered, with sufficient principality and "strictness", by C. F. von Savigny, who stated that of all laws faced by lawyers, the laws of their own science are those that they know least. Such observation would require that at least those generally accepted interpretation norms which have a principal meaning should find their way to laws. At the same time, there will still be the problem of how extensively, both in qualitative and quantitative terms, techniques for the interpretation of law should be fixed in a law. After all, this is principally hermeneutica iuris, of which at least an implementer of law must have a systematic picture10. Description of interpretation theories is oriented, first of all, to the scope of our cognisance rather than to stressing the normativity of one theory or another11. It is obvious, however, that laws are written not only for lawyers and must be understood by at least those for whom the law is intended.
Civil law is a large legal area providing for the procedure of human behaviour, in which the participants are in equal, or co-ordinate, relationships. This means that subjects are free to enter into situations of legal significance, but then, they must already accept the legal rules. This mostly involves subjects without the required technical (i.e. legal) educational background, and for them, law is just one means of social order, a component of culture. Such a situation seems to create a need to furnish law with at least some more substantial rules for a better understanding of legal rules themselves.
In view of the situation in Estonia, it must be added that here, in replacing one legal system with another, legal and political decisions have been taken by selecting appropriate models for our laws from other legal...
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