Interpretation Flashcards
General remarks abt interpretation (syllogism, Savigny, hermeneutics, caveat, etc.)
- Method of subsumption via syllogism – clarifying the interaction between norm and fact
legal provision (normative element) <—-> facts of the case (factual element) - Read signs intentionally put there by human beings (somebody created content and put it out there to unpack that)
- Whenever we interpret something, interpreter takes part in its content creation
(ex: when u play the piano u add ur own funk, so u and owner create piece together) (same situation for the law, depending on the approach of the interpreter) - Interpretation = „Reconstruction des dem Gesetze inwohnenden Gedanken“ (Savigny, System des heutigen Römischen Rechts, Band I (1840), § 33)
➢ Concerns the understanding of legal norms - Hermeneutics: the science of understanding the meaning of for example texts
- Caveat: the methods of interpretation differ depending on the legal source!
methods of statutory interpretation
§ 6 ABGB:
„No meaning may be inferred from a law other than the meaning which is evident from the genuine meaning of the words in their context and the clear intention of the legislator.“
Art. 1 (1) ZGB (Switzerland):
„The law applies to all legal questions for which it contains a provision according to its wording or interpretation.“
Art. 4 Code Civil:
“A judge who refuses to give judgment on the pretext of legislation being silent, obscure or
insufficient, may be prosecuted for being guilty of a denial of justice.”
Art. 5 Code Civil:
“Judges are forbidden to decide cases submitted to them by way of general and regulatory provisions.”
- Teleological → clear intention of the legislator
- Textual → genuine meaning of the words
- Historical
- Contextual → in their context
Savigny, System des heutigen Römischen Rechts, Band I (1840), § 33 lists four elements of Interpretation
- Grammatical Interpretation
- Logical Interpretation
- Historical Interpretation
- Systematic Interpretation
-savigny= wouldn’t have like teleological interpretation, bc there are no historical sources for it (= no evidence)
- Didn’t feel like codes of his time were not as good as roman property law (his idea of historical interpretation hasn’t aged that well)
Canonical Methods of Interpretation nowadays:
- Grammatical/Textual Interpretation
- Systematic Interpretation
- Historical Interpretation
- Teleological Interpretation
Grammatical/Textual Interpretation
- The wording and grammar are the starting point of interpretation
- “has as its object the word which mediates the transition from the mind of the legislator to our mind”
(Savigny, System des heutigen Römischen Rechts, Band I, 1840, § 33) - Determination through
- Default: common understanding
- Exceptional: definition by law
➢ Interpretation that has connection to the social realm but still is immediately controlled by the legislator
Example, Directive (EU) 2019/1023:
Article 1
1. This Directive lays down rules on:
(a) preventive restructuring frameworks available for debtors in financial difficulties when there is a likelihood of
insolvency, with a view to preventing the insolvency and ensuring the viability of the debtor;
Article 2
2. For the purposes of this Directive, the following concepts are to be understood as defined by national law:
(b) likelihood of insolvency;
Systematic/Contextual Interpretation (derogation, etc.)
- “structure of the thought, […] in which the individual parts of it stand in relation to each other”
(Savigny, System des heutigen Römischen Rechts, Band I, 1840, § 33) - Emphasizes contextual element
- terms within an act or other acts should be interpreted coherently
- A provision should not be considered on its own, but in the context in which the legislator has put it
– requires a system which is often given in codes - for instance the German Civil Code (BGB)
Derogation:
➢ Formal derogation – expressly amended or repealed (Cf. § 9 ABGB)
➢ Substantive derogation – change in substance without express amendment -> lex posterior, lex specialis
§ 9 ABGB:
“Laws remain in force until they are amended or expressly repealed by the legislator.”
Lex posterior:
* lex posterior derogat legi priori
* Premise: several provisions are applicable to the same case
* Assumption: the legislator’s intent is more likely to be derived from the more recent provision
§ 943 S 2 ABGB (in force since 1812): a donation contract requires a “written document” to be enforceable
§ 1 lit. d NotAktG (in force since 1871): a donation contract requires a notarial deed to be enforceable
Lex specialis:
* lexspecialis derogat legi generali
* the more specific law prevails over a more general law
§ 185 StGB (Hijacking of an Aircraft) is more specific than § 105 StGB (Coercion)
➢ Lex posterior versus lexspecialis must be determined by interpretation in the individual case
EX:
§ 538 ABGB:
“Whoever is legally capable and worthy of an inheritance is capable to inherit.”
§ 105 UGB:
“A general partnership is a partnership operated under its own business name, with the partners being jointly and severally liable and no partner’s liability being limited towards the partnership’s creditors. A general partnership has legal capacity. It can have any permitted purpose including any liberal professional as well as agricultural and forestry activity. A general partnership must have at least two partners.”
Historical Interpretation
- “a state of affairs, at the time of the given law, determined by legal rules for the legal relationship in
question“(Savigny, System des heutigen Römischen Rechts, Band I, 1840, § 33) - Subjective historical interpretation:
- The intent of the legislator at the time of legislation
- Objective historical interpretation:
- Distilling the intent of the legislator from the genesis of the law - incremental evolutionary approach
- Combine the subjective intent with legislative materials (reasons, explanations, comments…)
Teleological Interpretation
- Seeking objective/purpose of the law
- However, a real purpose is not evident
- problematic is that there is too much room for interpretation
- Amongst many, Savigny disregarded teleological interpretation
- Teleological Interpretation is in particular necessary for older statutes/statutes that are inspired by natural law (e.g. ABGB)
- It makes the law more flexible
- Cf. Radbruch
Additional Methods of Interpretation
- Constitutional Interpretation
- a formally subordinate norm is interpreted in conformity to the hierarchically superior norm
- e. g. principle of equality
- Autonomous Interpretation
- for terms of international law to have the same meaning, they must be understood independently of national law
- Treaty or Directive compliant Interpretation
- to avoid a conflict between European and national law, transposing national law must be interpreted in light of the relevant directive
- Follows from the supremacy of EU Law
Relationship between the Methods
- no hierarchy of the methods (mere topoi)
- Cf. Kelsen, Introduction to the Problems of Legal Theory (1934), Chapter VI: Interpretation
- However, in the end interpretation must be covered by furthest possible meaning of wording
- Interpretation tools work together
- Cf. (universal) hermeneutics
Interpretation praeter legem
§ 7 ABGB:
“If a matter can neither be determined by the wording nor by the natural meaning of a law, similar
matters which have been regulated by law and the purpose of other related laws must be
considered. If the matter still remains ambiguous, it must be decided based on the diligently
gathered and thoroughly considered facts in line with the natural legal principles.”
Art. 1 (2) ZGB (Switzerland):
“In the absence of a provision, the court shall decide in accordance with customary law and, in the
absence of customary law, in accordance with the rule that it would make as legislator.”
➢Judicial Development of the law (Rechtsfortbildung)
Prerequisites:
1. Gap (lacuna)
- Not covered by the law or too broadly covered
2. The gap is against the plan of the legislator
3. Balancing of interests
Analogy:
- There is an unintentional gap in the law – something is not covered by the law
- Comparable balancing of interests
- § 1319 ABGB: “If someone is damaged […] due to the collapse or removal of parts of a building
or another structure erected on a piece of land, the possessor of the building or structure is
obliged to compensate […].”
➢ The Austrian Supreme Court (OGH) extended this statute by analogy to damages caused by
trees – now there is § 1319b ABGB
Teleological Reduction:
- There is an unintentional gap in the law – the norm text covers more than the intent of the
legislator dictates
- Incomparable balancing of interests
- § 1295 (1) ABGB:
“Everyone is entitled to claim compensation for damages from the damaging
party who caused the damage at his fault; the damage may have been caused by breach of a
contractual obligation or without reference to a contract.”
➢ Teleologically reduced to only directly affected persons and not “everyone
(check ppt for graph explaining better)
core (speck of telelogical reduction) - around core (room for interpretation) (analogy sticks to room for interpretation)
Interpretation of Contracts
§ 914 ABGB:
“When interpreting contracts, one shall not adhere to the literal meaning of an expression but must determine the intention of the parties and the contractmust be understood in line with honest commercial practice.”
§ 915 ABGB:
“In the case of contracts which only oblige one party, it is assumed in case of doubt that the obliged party intended to assume the less rather than the more cumbersome burden; in the case of contracts which oblige both parties, an unclear expression is interpreted to the detriment of the party who used such expression (section 869).
- Mandatory Rules (e.g. § 879 ABGB (1)):
“A contract which violates a legal prohibition or public policy is void.” - Default Rules (e.g. § 1061 ABGB):
“The seller is obliged to duly keep the asset safe until the time of the transfer and to hand it over to the
purchaser in accordance with the above provisions relating to the barter (section 1047).” - Altering Rules (e.g. § 579 ABGB (1)):
“If a declaration of a last will has not been written by the deceased in his own hand, he has to sign such declaration in his own hand in the presence of three witnesses, who have to be present at the same time and has to add a note written in his own hand, that the document contains his last will.” - The actual will of the parties is most important:
- The wording is in this respect indicative – falsa demonstratio non nocet
- Intention is always paramount
- Applies to unilateral legal declarations as well
- Does not apply to articles of association and by-laws of a company
Reasons for different Interpretation:
* Statutes are unilateral instrument issued by the same body to all citizens
- Interpretation is largely independent of any context
* Contracts are made in different circumstances between different types of people in order to achieve
various purposes
- Interpretation is highly dependent on respective context
- e.g. identity of parties, respective market and the purpose of the contract
