Interpretation Flashcards
What is the method of subsumption in legal reasoning?
Definition: Subsumption clarifies the interaction between a legal provision (normative element) and the facts of a case (factual element).
Process:
Is the respective element of the facts covered by the corresponding term of the provision? Achieved via syllogism, a logical method linking norms to facts.
What is the purpose of interpretation in legal reasoning, and how does it relate to hermeneutics?
Interpretation: Defined by Savigny as the “Reconstruction des dem Gesetze inwohnenden Gedanken” (reconstruction of the idea inherent in the law). It focuses on understanding legal norms.
Hermeneutics: The science of understanding the meaning of texts, including legal provisions.
Caveat: Methods of interpretation vary depending on the legal source!
Methods of Statutory Interpretation Austria:
§ 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.“
Methods of statutory interpretation Switzerland:
Art. 1 (1) ZGB (Switzerland):
„The law applies to all legal questions for which it contains a provision according to its wording or
interpretation.
- Methods of Statutory Interpretation France:
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.”
Savigny, System des heutigen Römischen Rechts, Band I (1840), § 33 lists four elements of
Interpretation:
-Grammatical Interpretation
* Logical Interpretation
* Historical Interpretation
* Systematic Interpretation
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
- Grammatical/Textual Interpretation
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;
- Grammatical/Textual Interpretation
Example, German Insolvency Code:
Section 18 – Imminent insolvency
(2) A debtor is deemed to be faced with imminent insolvency if it is likely that the debtor will be
unable to meet existing obligations to pay on the date of their maturity. The forecasting period is
generally to be 24 months.
- Systematic/Contextual Interpretation
“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)
Question: How does systematic or contextual interpretation work, with examples from Austrian law (§ 538 ABGB and § 105 UGB)?
Systematic/Contextual Interpretation: Considers the meaning of a legal provision in the context of the overall legal system.
Example (§ 538 ABGB):
"Whoever is legally capable and worthy of an inheritance is capable to inherit." Interpretation may involve cross-referencing other inheritance laws to define "legally capable" and "worthy of an inheritance."
Example (§ 105 UGB):
Defines a general partnership (OG) and its legal capacity, specifying that it can engage in any permitted activity and requires at least two partners. Systematic interpretation may clarify the relationship between this provision and broader corporate or commercial law.
- Systematic/Contextual Interpretation
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.”
- Systematic/Contextual Interpretation
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
- Systematic/Contextual Interpretation
Lex specialis:
lex specialis 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 lex specialis must be determined by interpretation in the individual case
