Interpretation Flashcards
What are the canonical methods of interpretation?
- Grammatical/Textual- The wording and grammar are the starting point of interpretation. Gas connection to the social realm (example likelohood of insolvency)
- Systematic/ Contextual- 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) - Historical
-subjective- the intent of the legialtor at the tinr of legislation
-objective- distilling th eintent of the legislator from the genesis of the law-> incremental evolutionary approach
- Combine the subjective intent with legislative materials (reasons, explanations, comments…)
- Teleological
* 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
What is subsumption via syllogism?
-clarified the intraction between norm and fact
Derogations from the systematic/contextual interpretation
- Formal-expressly amended or repealed (Cf §9 ABGB)
- Substantive-change in substance without express amendment
-lex posterior(derogat legi priori )- the later law derogated the earlier.
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
-lex specialis (derogat legi generali)-the more specific law prevails over a more general law
What is hermeneutics?
teh science of undersatnding themeaning of for exampke texts
Name another (additioanal) methods of interpretation
- Constitutional (textual)
- a formally subordinate norm is interpreted in conformity to the hierarchically superior norm
- e. g. principle of equality - Autonomous (systematic)- for terms of international law to have the same meaning, they must be understood independently of national law
- Treaty or Directive compliant Interpretation (Teleological)
- 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 - Comperative (historical)
-looks across the border
-indispencable for the contract of law rules
-link with historical and systematical intrepreattion
Explain the interpretation PRAETER LEGEM
-interpretation “beyond the law”
-refers to situations or actions that are not explicitly regulated or prohibited by law but operate in a way that supplements or fills gaps in the legal framework
- Prerequisites:
- Gap (lacuna)-not covered by the law or too broadly covered
-The gap is against the plan of the legislator
- Balancing of interests - Methods
-Analogy:
- There is an unintentional gap in the law – something is not covered by the law
- Comparable balancing of interests-to dinf the commonalities betwene the regulated and unregulated cases
-PROHIBITED in the criminal law (bulla poena sine lege)
-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
- address overgeneralization by limiting the application of a law to cases that genuinely reflect its underlying rationale.
What are the reasons for different interpretation of the statutes and the contracts?
- 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
What are the methods of interpreattion suggested by Von Savigny?
- Grammatical
- Historical (von Savigny is proponent of the historical schoold of jurisprudence)
- Sustematic
There is no teleological method because:
-he viewed the law as an organci product of a nation’s Volksgeist-law that developed from the customs and traditions, and shared consciousness of a society over time, rather than being consciously designed to achieve particular purposes or ends
-such approaches risked imposing artificial constructs onto the organic evolution of law, disrupting its natural and historical continuity
-difference between Enlightenment-inspired rationalist codifications and historically grounded jurisprudence
What is Interessenjurisprudence?
-Jurisprudecen of Interests is a legal theory that emerged in the late 19th and early 20th centuries, focusing on balancing competing social and individual interests within the framework of legal interpretation
-focus on the interesets, aiming to achieve fairness in balancing these interests
-While Savigny’s Historical School emphasized the organic development of law from the Volksgeist (spirit of the people) and its systematic coherence, Interessenjurisprudenz prioritized practical and purposive analysis
-Proponents: Puchta
In which groups the interpreattional methods could be devided?
- inter-subjectivly accesible: textual+historical+ contextual-> don’t argue about what text says, what kind of word is in the provision
- subjective: teleological+systematical-> own preferences of a judge
What is dialectical method and what does it consist from?
-form of reasoning and argumentation that involves the process of conflict and resolution of opposing ideas or forces
1. Thesis
2. Antithesis
3. Synthesis
What is ment by a minori as Maius/ a maiore ad Minus?
- argumentum a maiore ad minus (“Größenschluss”): what is true for all is true for one
- argumentum a minori ad maius: a narrower rule includes the broader rule
What is principle of stare decisis?
-principle that is moslty applied in the common law system
- judgments not only decide individual cases but are precedents for future ones →ensuring consistency and predictability
