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Creating law of interpretation: a risky or fundamental step?

Paulina Konca

Abstract

In some countries there is no legislation regulating legal interpretation, but in others, various interpretive tools and guidelines are regulated by the legislature. The regulation of interpretation is primarily considered an opportunity to increase legal certainty. Some authors note, however, that statutory regulation of legal interpretation involves certain risks, such as the danger of violating the principle of separation of powers. Questions also arise as to whether the legislator has the right to bind future legislators, whether the law of interpretation can have retroactive effect, and how to interpret the interpretative provisions. This paper addresses these challenges. In discussing this matter, it refers to the regulations of four countries: Australia, Spain, Ireland, and Poland. Each of them serves as an example of adopting different solutions to the problem of interpretation regulation. The main argument is that the legislature can regulate interpretation, either through direct or indirect legislative intervention. To a large extent, law of interpretation can enhance uniformity in a preventive manner and restore disturbed certainty by providing mechanisms to resolve serious discrepancies in judicial practice. It can also serve as a safeguard for other principles and values.

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1 Ways of regulating the interpretation of law

  • 1 Brzeziński 2010: 343; Wróblewski 1973: 94.
  • 2 Wróblewski 1973: 110.

1Courts' judgments, as well as other decisions made in the process of applying the law, depend not only on the wording of regulations and provisions, but first and foremost, on the interpretation of their respective texts and thus on the interpretive resources used. This often leads to a considerably different understanding of the provisions of the law, as is clearly evidenced by the existence of different lines of case-law with respect to the same provisions. Meanwhile, one of the apparent values of law is predictability. Predictability increases the chances that the law will fulfil its functions and enhances legal security.1 One way to increase the uniformity of jurisprudence is to make use of uniform methods of interpretation. The means to increase the uniformity of methods is to provide homogenous interpretative directives in the form of enacted legal provisions. Primarily for this reason, proposals are made in the literature to establish the law of interpretation (LoI).2

  • 3 Poland has regulations on the interpretation of contracts and wills, whereas there are no such regu (...)

2The status of interpretative resources varies. In some countries (e.g. Poland3), interpretive guidelines do not follow from the provisions of the law, but from the commonly accepted ruling practice or views expressed in legal literature. Nevertheless, in many countries, the legislator decides to take legislative action in order to regulate the interpretation of legal provisions. The lawmaker may do so in three ways:

  • 4 I do not generally include legal definitions among the rules of interpretation. In point 2 I focus (...)
  • 5 The proposal to assign specific interpretative canons to specific normative acts was put forward in (...)
  • 6 Interpretation acts are in force in Australia, Canada, Hong Kong, Malaysia, Maldives, New Zealand, (...)
  • 7 Not all the civil codes contain interpretative provisions on the interpretation of statutory law (p (...)

(1) by establishing the correct interpretation of a particular act by enacting an act of the same level (giving an authentic interpretation a posteriori);4

(2) by enacting, together with a specific act, the preferred methods by which that act should be interpreted (so called specific directives);5

(3) by enacting general and abstract interpretative directives to be used in interpreting the law as such or a particular branch of it (the so-called general directives). Such interpretative directives are mainly found in two types of acts: the interpretation acts6 and civil codes.7 Interpretative directives are also found in other legal regulations, including constitutions and tax law. To a certain extent, the legislator may also delegate the power to provide the correct interpretation of legal provisions or to determine correct methods of interpretation to other bodies.

3Two further issues need to be separated: the legislative regulation of interpretative activity (abstract or specific regulation of how to use interpretative methods) and the enforcement of certain interpretative products, either through authentic interpretations, the regulation of the binding force of precedents, or delegation by the legislator to some lower body of the power to approve interpretations-results. The problems associated with each of these issues are diverse and may in certain respects require different treatments.

4In the broad sense of LoI, I include the three types of provisions described above, well-established judicial practice, and various judicial frameworks. LoI sensu largo includes not only the correct methods of legal interpretation, but also its proper results. Due to the diversity of reference points, the discussion of LoI is nuanced. Aware of this, I limit this article to a selected part of the issue raised. There is certainly a need for more in-depth analyses within a wider scope and I hope that this paper provides some useful guidelines for this further research.

5The LoI is intended to help resolve problems of interpretation and to increase legal certainty, but its very creation requires the resolution of a number of challenges. In this article, I would like to address the problems related to the regulation of LoI by the legislator. Questions about the LoI focus on two issues: the form and content of the LoI. Focusing primarily on the third point indicated above (lawmakers enacting general and abstract interpretative directives to be used in interpreting the law as such or a particular branch of it (the so-called general directives), I will examine the following six matters:

(1) Is it constitutional to enact interpretative provisions?

(2) Can the legislature bind future legislators with respect to the interpretation and creation of law?

(3) Can a normative act governing interpretation be applied to the interpretation of the normative acts enacted before its establishment?

(4) Which interpretative directives should be applied to the interpretation of interpretative provisions?

(5) Which issues could be regulated by the LoI?

(6) What is the best form of regulating legal interpretation?

6Finally, within the scope and in the light of the problems analysed, I will assess whether the enacted LoI is an acceptable tool for increasing legal certainty.

2 Is it constitutional to enact interpretative rules?

2.1 Objections to the constitutionality of the enactment of some directives of legal interpretation

  • 8 By specific directives, I mean rules indicated above in points 1 and 2.
  • 9 Scalia, Garner 2012: 245.

7The question of the constitutionality of interpretative regulations most often arises in the context of their possible violation of the separation of powers. For some authors, only interpretative provisions assigned to certain normative acts (specific directives8) are consistent with the separation of powers.9

  • 10 Here, I will also omit the definitional directives she distinguishes.
  • 11 For example, they order judges to interpret normative acts either broadly or narrowly, establish th (...)
  • 12 Jellum 2009: 895.
  • 13 Jellum 2009: 893-894.

8Such a perspective is adopted by L. D. Jellum who divides interpretive provisions into interpretive directives and theoretical directives.10 Interpretive directives are diverse and address many issues.11 Interpretive directives enacted as general directives usually violate the separation of powers because their purpose is to tell the judiciary how to interpret all laws regardless of particular policy choices.12 Jellum rightly observes that a general directive guiding the court not to follow the rule of lenity in criminal cases would likely be found unconstitutional. I would argue, however, that this would happen not because of a violation of the constitutional separation of powers, but because of the fact that such an interpretive directive would affect the right of individuals to a fair trial.13 Many of the choices the legislature makes, e.g., the principles of a fair trial, are stable and fixed, so that interpretative directives formulated in their light can be general because they are not an expression of some specific policy but of broader constitutional assumptions. Although the scope of a directive may affect its constitutionality, its content is what matters most. It should be noted that not only the legislator, but also the courts cannot formulate interpretative directives of any content inconsistent with constitutional principles. The constitutionality refers to the content of the interpretive rules provided by legislature, not the sole fact of their provision.

  • 14 Jellum 2009: 848-852. By the tools of interpretation the author means mainly intrinsic and extrinsi (...)
  • 15 Jellum 2009: 882-883.
  • 16 Article 12 of the Italian “preleggi al codice civile” (Regio Decreto of 16 March 1942, n. 262) stat (...)

9As for theoretical directives, they establish the tools of interpretation.14 In Jellum's view, theoretical directives are incompatible with the U.S. Constitution because Congress cannot limit the court's sources of knowledge.15 Meanwhile most interpretative provisions in force in many countries (for instance, in Spain, Australia, Ireland, or Italy16) do not limit the available interpretative tools.

10It should be noted, however, that although interpretative rules rarely drastically limit the judicial power to interpret the law, in practice, doubts are sometimes raised in relation to certain theoretical directives. As stated in Article 28 of the Hungarian Constitution, the courts shall apply purposive and systemic interpretation when adjudicating and shall ensure that the interpretation of the law is consistent with the Constitution. Interpreting the law and the Constitution, it must be assumed that the purpose of the law is to serve the public good, in accordance with the principles of common sense, morality, and economy. According to the 2018 amendment,17 in determining the purpose of a provision, the preamble and the explanatory memorandum of a provision or amendment shall be considered first and foremost. This draft amendment received international criticism from, among others, Amnesty International18 and the Helsinki Foundation for Human Rights,19 who commented, among others, that limiting judges' freedom of interpretation is a serious threat to the rule of law. They pointed out that the explanatory memorandum of the draft is not a law and is not subject to constitutional scrutiny. They added that the ruling majority should not instruct judges on how to interpret the law in relation to an assumed political goal, possibly even an unconstitutional one.

  • 20 Santaolalla López 1991: 56.
  • 21 Chronowski, Drinoczi, Kocsis 2012: 41.

11I find this criticism too harsh for several reasons. First, similar provisions are in force in many democratic countries. There is nothing to prevent the legislator from indicating the preferred aids of interpretation, especially since, after all, among the various interpretive resources there are better or worse designed ones, as well as those which are more or less accessible, which influences their usefulness. Second, although the list of interpretative resources enacted by the Hungarian legislator is quite narrow in comparison with, for example, the Australian regulation I will discuss below, it remains an open catalogue. The interpreter may choose other interpretative tools than the explanatory memorandum or the preamble. Third, the preamble is enacted (drafted and voted on) together with the legislation and constitutes an intrinsic aid. Referring to the text of a legal act, regardless of its normative value, is not very controversial. In turn, the explanatory memorandum, although not part of an enacted text, is commonly used in the process of interpretation as an extrinsic aid. Fourth, despite the fact that justifications and preambles are often ascribed a purely propagandistic character,20 it should be noted that Article 28 clearly indicates that the courts shall ensure the consistency of the interpretation of legal provisions with the Constitution. In the light of this requirement, it would be hard for them to simultaneously allow for the fulfilment of unconstitutional political aims. Of course, the new wording of the provision is not exempt from doubt. In fact, it caused doubts even before the amendment – above all, interpretative doubts,21 which the amendment failed to resolve.

  • 22 Rüthers 2020.

12When discussing the danger of the violation of the principle of the separation of powers by LoI, it should be stressed that the absence of LoI also generates a threat to that principle. The German literature recognises that the methodological freedom resulting from the absence of LoI propagates arbitrariness, especially of the constitutional content: the excessive freedom of judges causes them to usurp the functions of the legislative power, resulting in a breach of the separation of powers and of the rule of law.22 It seems that the regulation of interpretation, especially in terms of correct methods, can be one of the tools for achieving a balance of powers, provided that certain conditions are met.

2.2 Unlawful interpretive provisions

13In my view, only reductionist rules, or rules that confer on a given authority powers significantly beyond the scope of its assigned functions, or establish inadequate consequences for violations of the LoI, should be considered inadmissible from the point of view of the separation of powers.

  • 23 As Tomasz Pietrzykowski (2012: 214) notes, no one knows whether formalism as a theory of reasoning (...)

14Among the provisions establishing the correct methods of interpretation, are those that formulate a numerus clausus of permissible extrinsic aids as reductionist. Rules indicating criteria for the use of interpretative tools or that set out a catalogue of preferred tools are not reductionist in that meaning. The literature notes that excessive formalism has never been an option.23

  • 24 In the latter situation, the legislator is only allowed to influence the understanding of the rules (...)

15Not only does LoI regulate the correct methods of interpretation and indicate the values to be followed by the interpreter, but it also determines who should interpret the law and with what consequences (for example, whether a given authority's interpretation is binding). Such rules are termed competence provisions herein. As regards competence provisions, Jellum (2009: 895) uses the example of the following contrived interpretative provision with an impermissible content: Should any statute ever be challenged, the court shall adopt the executive’s interpretation. Competence provisions are usually formulated in a manner completely different from this extreme example. First, it is only when serious discrepancies arise that a specific body is empowered to resolve them, limiting the freedom of other bodies. The existence of doubts is inherent in the process of applying the law. To set a universally binding interpretation for all doubts would be a drastic interference with the jurisdictional independence of the courts - even if such an interpretation was set forth by a chosen court and not by the legislator. Second, the power to make binding rulings in case of doubt is usually given to the legislature and the courts, or solely to the courts.24 Depriving the courts of such a possibility would definitely violate the separation of powers.

16Disciplinary penalties for failure to comply with interpretive provisions would also raise serious objections. The primary and undoubtedly permissible consequence of a breach of an LoI is overturning of a defective ruling. In addition, interpretative rules may be declared unconstitutional on the grounds that they violate norms other than the principle of the separation of powers. Rules affecting the legal certainty and the principle of citizen's trust in the state or violating the requirements of a fair trial would undoubtedly be unconstitutional.

3 Can the current legislature bind future legislators to certain rules of interpretation and law-making?

  • 25 Alexander, Prakash 2003: 105.
  • 26 Alexander, Prakash 2003: 109.
  • 27 Alexander, Prakash 2003: 100.
  • 28 Alexander, Prakash 2003: 108.
  • 29 Rosenkranz 2002: 2092-2101.
  • 30 Kiracofe 2004: 597.

17Since the enactment of interpretive rules should influence the content of the future law, the question arises whether the current legislature has the right to limit other legislators. The American literature emphasises that the current Congress cannot force future Congresses to express themselves in a particular way25 because words have meaning regardless of artificially imposed interpretive directives,26 and the legislature has the right to use those words as it pleases.27 It is sometimes concluded that the legislature may only enact non-binding interpretive guidance28 or certain types of interpretive canons,29 or that Congress itself should decide whether certain interpretive rules apply to a particular statute (choose specific directives).30

  • 31 The directives of the legislative technique have been formalised in legislation in Poland and Spain (...)
  • 32 Marmor 2012: 1.

18However, there are a number of matters in law-making in which the legislature is bound by the choices made by past lawmakers. For example, legislators cannot create arbitrary acts of any content, only texts compliant with the Constitution. Further, a particular legislative technique should be used, one that is often regulated in the law itself.31 Sometimes, the legislator even has to limit future legislators with respect to the choices they make. Legal literature emphasises that LoI is a consequence of the normative assumption concerning the relationship between the legislator and the courts,32 so it is always in some sense bound by that assumption. The question posed in this section is, in practice, which interpretative directives laid down by the legislature would be impermissible or might be considered unreasonable. I have tried to address these issues in the previous subsection.

19There is no doubt, therefore, that the legislator is making a number of significant choices that are binding for the future. Further, decisions to adopt a particular legislative technique are not without consequences. Knowledge of the recommended, prescribed, or simply applied legislative technique frequently serves as a guide for interpreters on how to read the legislator's intentions.

20Moreover, the prior legislature does not “bind” future ones as long as the latter may change the interpretive provisions. By not changing LoI (either by amendment or by lex specialis) the future legislature tacitly accepts it.

4 Can a normative act governing interpretation apply to the interpretation of normative acts enacted before its creation?

  • 33 Kiracofe 2004: 580.
  • 34 Rosenkranz 2002: 2143-2144.
  • 35 For example, section 4, Interpretation Act is applied to New Zealand legislation, whether enacted b (...)

21In legal literature, the question arises as to whether the interpretative rules adopted by the legislator should apply only to the future, or whether they may also apply to laws passed before the given interpretative rules came into force. According to some authors, the latter option seems to be too far-reaching,33 while according to others it is a possible solution.34 The interpretation acts resolve this issue in various ways.35

  • 36 Rosenkranz 2002: 2143-2144.
  • 37 Jellum 2009: 852-854.
  • 38 Alternatively, consideration may be given to allowing retroactive interpretation to a limited exten (...)

22In my opinion, adopting only future oriented interpretative directives poses problems, reducing the coherence of solutions existing in the system. Enacted interpretative directives should apply to the entire law, including the provisions in force before the enactment of the new interpretative rules. This is possible if four assumptions are made. First, sometimes we need to amend the law. As N. Q. Rosenkranz indicates, unlike the courts, the legislature can amend the law, adapting it to the enacted LoI.36 It is difficult to rewrite the whole law, so it is necessary to take into account the law currently in force and to amend only certain provisions or to exclude the use of new rules to interpret the older provisions. Second, the new LoI cannot change the previous method of interpreting the law nor the meaning of most of the existing provisions, either completely or to a large extent, because it would then in fact become a camouflaged amendment of the interpreted provisions. Third, many interpretative provisions are presumptive directives, not mandatory directives.37 Of course, a refusal to apply a particular provision requires strong justification. The prior enactment of the provisions to be interpreted, their context, and previous interpretation may justify that new directives should not be applied in their case. Fourth, the new LoI cannot affect cases that have already been resolved.38

5 Which interpretative rules should be used to interpret interpretative rules?

  • 39 Guastini 2018: 317-322.
  • 40 Núñez Vaquero 2016: 129.
  • 41 Chronowski, Drinoczi, Kocsis 2012: 41.
  • 42 For example, if they explicitly allow for the use of legislative materials to discover the meaning, (...)

23Interpretative provisions themselves are not free of interpretative doubts (see Article 12 of the Italian Civil Code,39 the Chilean interpretative provisions,40 or Article 28 of the Hungarian Constitution41). Interpretation acts most often solve this problem by indicating that the rules on the interpretation of the law they contain should also apply to the acts themselves. This is not the best solution because when an interpretative provision is unclear, it is difficult to say how such an unintelligible rule could provide interpretative guidance. Nevertheless, to some extent, interpretative rules may be useful for their own interpretation.42 In most situations we should accept the self-referential nature of these directives.

24In more complex cases it is a good idea not to indicate how to interpret the interpretive rules, but who should interpret them. Of course, it is impossible to replace one set of rules (setting out the correct methods and tools of interpretation) by another (competence provisions). The authorities deciding the doubts could not arbitrarily determine the correct interpretation. The competence provisions are an adjunct to, not the very core of, LoI.

6 Which issues can law of interpretation regulate?

6.1 Introduction

  • 43 Out of the many acts analysed, I have chosen these three because of the interesting solutions adopt (...)
  • 44 Interpretation Act 2005, Ireland.
  • 45 Acts Interpretation Act 1901, Australia.
  • 46 Royal decree of July 24, 1889 – Spanish Civil Code (Spanish title: Código Civil, BOE núm. 206 de 25 (...)
  • 47 In many countries, LoI is regulated only residually or not at all. It is therefore worth juxtaposin (...)

25There have been proposals in the literature to create (or enact, where provisions exist) the LoI, which also involves determining the kind of provisions it should contain, as it seems that the existing legal regulations in this area do not really meet the postulates raised. Most of the acts regulating legal interpretation focus on simple language issues, by stating semantic canons (for instance, plain meaning rule or gender/number canon). They omit issues of the very essence of legal construction and do not deal with controversial or problematic matters. Yet the LoI can regulate a range of issues, including those that go beyond questions of accepted legislative technique. Here, I would like to focus on three issues, illustrating them with examples of three different normative acts.43 The provisions I would like to analyse are: Sections 5 and 6 of the Irish Interpretation Act,44 Part 5 of the Australian Interpretation Act,45 and Article 3.1 of the Spanish Civil Code (CC).46 The issues I have chosen to discuss are: the primacy of the legislator's intention and the purpose of the regulation in legal interpretation, the role of legislative materials in interpreting legal provisions, and the problem of construing provisions in changing circumstances. In my opinion, these matters can be regulated by the legislator without accusation of too much interference in judicial freedom. I would like to briefly compare the solutions adopted in the countries under discussion (Ireland, Australia, and Spain) with the proposals of Polish case-law, which, alongside the literature, is a main source of interpretative directives in Poland.47 But before I continue my analysis, it is important to emphasize three points.

26First, the issues cited below are complex and each of them could warrant a separate discussion. In this article they appear only as certain proposals which may be developed in an in-depth analysis.

  • 48 MacCormick, Summers 1991: 462.
  • 49 MacCormick, Summers 1991: 463.

27Second, there is no denying that the decisions taken by the legislature in making LoI are largely determined by certain factors. Therefore, interpretative methods cannot be arbitrarily modified at the legislator’s will. It has been recognized in legal literature that basic features of justificatory practice share important similarities, which reveals a deep common rationality rooted in shared values.48 There are also rationally explicable differences in adopted solutions grounded in such factors as differences in political theory or differences of institutional structure or legal culture.49 The possibilities of regulating the interpretation of law are limited. There are many universal rules of interpretation as such, for which it is difficult to provide any sensible alternative in law. Moreover, many legal regulations that do not refer directly to legal interpretation, legal culture (its values, topoi operating in legal tradition, standards), functions of particular tools adopted in law such (e.g., legal definitions) to some extent determine the way in which the law is interpreted. By submitting to such constraints, the legislator may put the indicated directives into the form of legal regulations. Although in some cases this may cause redundancy, in others it can make the law clearer. Finally, there is a realm in which there are still various options. This is where the question arises as to which solutions should be left to individual, and often varied, decisions of courts, and which should be standardized by the lawmaker.

  • 50 Balkin, Levinson: 2009: 711.

28Third, LoI is largely determined by systemic, political, and structural assumptions. At the same time, any changes in LoI involve the danger (or perhaps the possibility?) of changes at these levels as well. So, they are not just about correct interpretive technique, but can have more far-reaching consequences. Undoubtedly, LoI is an area in which the juxtaposition of the impacts of the various authorities is evident. Nevertheless, the aim of LoI is not to artificially eliminate the conflict between individual authorities and institutions, which is inherent in the system,50 but to minimise its effects by enhancing cooperation and facilitating the finding of a balance and criteria for deciding whether the actions performed fall within the legally defined functions of state bodies.

6.2 The intention of the lawmaker and the purpose of the act

  • 51 It should be noted that purpose and intention are not the same thing, although they frequently coin (...)

29Many interpretative provisions refer to the purpose of the regulation or the intention of the legislator. 51According to the Section 5 of the Irish Interpretation Act 2005, if a provision of any Act is obscure or ambiguous, or on a literal interpretation would be absurd or would fail to reflect the plain intention of the lawmaker, the provision shall be given a construction that reflects the plain intention of the lawmaker, where that intention can be ascertained from the Act as a whole. It follows that the interpreter should be guided from the very beginning by the intent of the legislators, which can be derived from the Act as a whole. This is the only way to assess whether literal interpretation could fail to reflect the plain intention of the legislator.

30Further, in the Section 15 AA of the Australian Acts Interpretation Act (AIA), the Australian legislature takes the view that in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act is to be preferred to any other interpretation. Importantly, the provision states that the interpreter is to be guided by the purpose, whether or not that purpose or object is expressly stated in the Act. The legislator enumerates which aids may help in the ascertainment of the meaning of the provision. The choice of the extrinsic materials allowed in the process of legal interpretation suggests that it is not about abstract objectives, but about the intentions with which the legislator adopted the act.

  • 52 Judgment of the Tribunal Superior de Justicia. Sala de lo Social in Coruña of December 18, 2017, ST (...)
  • 53 Judgment of the Tribunal Superior de Justicia. Sala de lo Social in Coruña of December 18, 2017, ST (...)
  • 54 Judgement of the Tribunal Superior de Justicia. Sala de lo Social in Albacete of July 23, 2020, STS (...)

31The Spanish Art. 3.1 states that the norms should be interpreted according to the proper meaning of their words, in relation to the context, and to antecedentes históricos y legislativos as well as to social reality at the time of the application of the norms, particularly given in the spirit and purpose of those norms. Although the provision is rather succinct and refers to several interpretive sources without establishing a hierarchy between them, one can see that the purpose of an Act is what must be taken into account first and foremost. Spanish jurisprudence has stressed the importance of the purpose and spirit of the law, indicating that “although the literal interpretation is the first of the canons of interpretation, (…), and systematic interpretation is also accepted, the dominant hermeneutical criterion is always the teleological one.”52 Spanish courts often refer to spirit and purpose while interpreting.53 Although article 3.1 does not explicitly refer to the legislator’s intent, the reference to legislative materials in the provision indicates the fundamental role of the actual legislator's intention. Moreover, Spanish case-law often explicitly refers to the intentions of the legislator.54

  • 55 Robertson 2009: 401.
  • 56 An example of that diversity is the construction of a rational (reasonable) lawmaker used in Polish (...)
  • 57 It is not necessary in every situation, but in some it may have important consequences.
  • 58 The definition of legal interpretation and the preferred order of directives should not be conflate (...)

32The literature stresses that interpretation is not the only thing that one can or should do with a text.55 However, labelling certain activity as interpretation is a kind of legitimisation. Many interpretative rules refer to purpose or intention, indicating, as it were, that the interpretation consists in discovering them (or finding the meaning that realises them), or establishes the reference to purpose, or intention as a kind of preference directive. If we refer to the purpose of an interpreted instrument, however, it should be noted that a text may have many purposes. If we are to determine the intention of the lawmaker, we should remember that the concept of "lawmaker" is sometimes understood in different ways.56 It is therefore important not only to define that interpretation consists in discovering the aim of regulation or in reconstructing the legislator's intention, but also how to choose one of many purposes or how to understand the concept of the legislator.57 LoI must be based on consistent assumptions. Many of the decisions about the correct methods of interpretation (for example, the broad acceptance of dynamic interpretation or, on the contrary, the binding of the will of the historical legislator) involve making certain assumptions about the issues mentioned above.58

  • 59 Since the mere reference to purpose or intention, although an important starting point for the regu (...)
  • 60 As Zygmunt Tobor (2010: 194) points out, “The basic question in an interpretative discourse is not (...)

33I do not believe that the legislator has to define how to understand purpose or who the legislator is.59 A consistent point of reference, however, whether explicitly or implicitly identified, is needed to ensure that the specific solutions adopted are coherent.60

6.3 Legislative materials

  • 61 Jellum, Hricik 2009: 33-34.

34The starting point for any interpretation is intrinsic sources, principally the words.61 The use of extrinsic aids, those that have not been voted on as law, may be more questionable. That is why O'Connor (2003-2004: 38) argues that the role of legislative materials in legal interpretation should certainly be addressed by the act governing legal interpretation. In Ireland and Poland there is no provision governing the role of legislative history in constructing laws, whereas such provisions do apply in Australia and Spain.

35The Australian AIA can be considered a model in that regard. According to section 15 AB, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material for the purposes indicated in the AIA. The legislator has listed extensively, but still only by way of example, which materials may be taken into account. In considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act and the purpose or object underlying the Act and the need to avoid prolonging legal or other proceedings without compensating advantage.

  • 62 Valladares Rascón 2001: 31.
  • 63 Valladares Rascón 2001: 31.
  • 64 Rodríguez-Toubes Muñiz 2013: 610.
  • 65 Organic Act of November 23, 1995 – Criminal Code (Spanish title: Código Penal, BOE núm. 281 de 24.1 (...)

36As regards Spanish law, article 3.1 of the Spanish CC directly indicates that provisions should be interpreted in relation to “historical and legislative antecedents”. Antecedentes históricos (historical provisions, former laws such as Roman law62) reveal what the legislator wanted to change or preserve from previously applicable law, while antecedentes legislativos (preliminary drafts, bills and parliamentary discussions63) reveal what it proposed, discussed, and what conclusions it eventually drew.64 No interpretative tools have been specified in the Spanish Penal Code, which is undoubtedly related to the matter being regulated: according to the principle nullum crimen sine lege scripta, stricta, certa, priority should be given to the literal wording of the Penal Code provisions.65

  • 66 Donlan, Kennedy 2006: 131-132.

37The Irish Interpretation Act of 2005 does not permit nor prohibit the use of extrinsic aids. The Commission’s draft legislation, unlike the final Act, explicitly provided for the use of listed extrinsic aids in some circumstances. In the Commission’s Report, they made strong arguments in favour of the occasional use of parliamentary history, but their suggestions were not enacted.66

  • 67 Bielska-Brodziak 2012: 151.
  • 68 Bielska-Brodziak 2017: 86.

38Polish law is also silent on that issue. Polish court practice has not yet developed a hierarchy of preparatory materials or standards of their application.67 A recent analysis of the role of legislative materials in the process of interpretation in Polish literature has shown that lawyer-practitioners are increasingly turning to travaux preparatoires when interpreting the law.68

  • 69 In some countries there were prohibitions on the use of legislative materials, but these have been (...)
  • 70 Jellum 2009: 882-883.
  • 71 Nourse 2014: 1613-1658.
  • 72 Konca 2019: 38-50.

39It is impossible to prevent the courts from referring to legislative materials69 and silence about these extrinsic sources should be taken as permission to use them rather than as a lack of such a permission, because it is difficult for interpreters to give up the use of such materials.70 In contrast to dictionaries or commentaries, legislative materials come from legislator themself. For some authors, legislative materials are the best evidence of the content of the real lawmaker’s actual decisions.71 It seems that the question of whether to use legislative materials or not is no longer valid, and the only question worth asking again and again is about how to use them well.72 The list of preferred materials, as well as the premises for relying on them, are important guidelines that can be developed in the literature, case law practice, or by the lawmaker.

  • 73 Konca 2020: 200-206.
  • 74 Konca 2020: 200-206.

40It should also be noted at this point that the interpretative function of legislative materials is clearly related to the way the role of the legislator's intention is perceived. Polish courts sometimes justify the adopted interpretation, completely ignoring the legislator's intention. In one case, the Polish Supreme Administrative Court had to interpret an ambiguous provision and chose the interpretation clearly opposite to the solution provided by the legislative materials. When the legislator amended the provision clarifying its meaning and explicitly indicating in the justification of the amendment that the provision should have been understood in the indicated manner from the very beginning, during the vacatio legis period lower courts did not take advantage of the possibility to request the Supreme Administrative Court to change the resolution. Meanwhile, the resolution should be regarded as defective if it is assumed that the interpretation is aimed at discovering the legislator's intentions.73 I can certainly repeat here that if we reduce the legislator to a 'provider of bricks' from which the courts are free to construct their own buildings, the edifice of the rule of law will surely collapse.74

6.4 Construing provisions in changing circumstances

  • 75 Lee, Mouritsen 2018: 825.

41For Lee, “Lawyers and judges are used to thinking about timeframe in constitutional interpretation”,75 and although the topic is also relevant to the statutory interpretation, legal provisions rarely refer to it.

42According to section 6 of the Irish Interpretation Act, in construing a provision of any Act or statutory instrument a court may make allowances for changes in the law, social conditions, technology, the meaning of words used in that Act or statutory instrument, and other relevant matters that have occurred since the passing of that Act or the making of that statutory instrument, but only in so far as its text, purpose, and context permit. This provision could not have been better formulated – it draws attention to all of the criteria that should guide the interpreter in that kind of case.

  • 76 Judgment of the Tribunal Supremo. Sala de lo Penal, of May 20, 2020, STS 1406/2020; Judgment of the (...)

43Article 3.1 of the Spanish CC is much more enigmatic than the Irish provision. The Spanish legislator invokes different methods of interpretation and orders that both the moment of application and the motives behind the provision be taken into account. The Spanish legislator stresses the importance of the impact of social reality on the importance of legislation. Other types of changes may be included in the term 'in relation to the context'. Spanish case law takes into account the social reality at the time of application of the rules.76

  • 77 Aubrey v The Queen (2017) HCA 18, [29] (Kiefel, Bell, Keane, Nettle and Edelman JJ).
  • 78 Burton Crawford, Meagher 2020: 220.

44The AIA does not explicitly refer to the influence of the economic, social, scientific, or technological changes in the legal text. Australian courts rely on the idea that statute is always speaking. This was clearly stated by the High Court in the Aubrey case.77 The literature notes that the “always speaking” could have diverse meanings: “Least controversially, it is shorthand for conveying the results of applying the well-known distinction between connotation and denotation. (…) Conventionally understood, then, the application of the 'always speaking' approach does not involve any change to the core or essential meaning of a statute.”78

  • 79 Order of the Sąd Najwyższy, of April 17, 2018, IV KK 296/17, OSP 2019/2/15.
  • 80 Order of the Sąd Najwyższy, of June 14, 2018, II KK 333/17, OSNKW 2018/9/61.

45No Polish provisions regulate this issue, but there are many judgments in which the courts use so called dynamic interpretation, guided by considerations of expediency and taking into account social, economic, systemic, and legal changes. The need to apply dynamic interpretation particularly applies to old regulations, such as those contained in the Code of Contraventions adopted in 1972, in a completely different reality from that of today. For instance, article 141 of the Code criminalises placing an obscene advertisement, inscription, or drawing in a public place. The Supreme Court, in a decision from 17 April 2017,79 stated that a public place is a space that remains accessible to the public without any restrictions, and that the Internet, although it is a virtual space, has the character of a public place as long as access to the posted content is not password-protected. Another example is Article 138, which states that anyone who, while providing services on a professional basis, demands and collects for the provision of services a payment in excess of that applicable, or intentionally refuses, without due cause, the provision to which he is obliged to provide, shall be liable to a fine. The provision entered into force at a time when there was a deficit of goods and services in Poland. The Supreme Court has stated that the characteristics of the rule should be analysed from the point of view of contemporary trends in civilisation and social needs, including in terms of protecting the interests of service consumers and the rights of service providers.80 These examples show that dynamic interpretation serves not only to supplement or modify the rules, but also sometimes to improve them. The adaptation of statutory regulations to new conditions must be associated with the assessment of changes in various fields (legislation, social, economic, technology, language, etc.).

46To adapt the law to new circumstances in a situation in which the legislator may not wish to do so is to encroach on the legislator's function, so the issue seems worth regulating. This brings us back to the questions of which actions fall within the concept of interpretation and what entitles an interpreter to take those actions?

7 What is the best form of regulation of legal interpretation?

7.1 Heterogeneity of the law of interpretation

  • 81 Judgment of the Tribunal Superior de Justicia. Sala de lo Social in Coruña of October 30, 2019, STS (...)
  • 82 It is one thing to assign specific canons to a particular statute, given the legislative technique (...)

47The status of LoI is never homogenous. Even where the legislation barely regulates the interpretation of a law, the understanding of the text is not just based on the rules of human reasoning but must always remain within a certain legal framework and require knowledge of that framework. On the other hand, where interpretation is regulated, legal provisions are not the sole source of such regulation. For example, Spanish case-law clearly emphasises that Article 3.1 is not the exclusive source of interpretation directives, indicating that the permitted methods of interpretation are the rules of human reasoning not mentioned in the provision.81 It is important to note that the fact that the legislator can regulate many issues does not mean that it must do so. It is difficult to say what sense there would be, for example, in codifying canons of interpretation.82 The purpose of statutory interpretative regulations should not be, and rarely are, to abolish the diversity of sources of interpretative directives. However, it is possible to look for the areas where one form is better than another.

7.2 Legal certainty: preventive and post facto measures in the law of interpretation

48LoI can fulfil various purposes, but I would like to refer to the function that is most strongly emphasised in legal literature. The role of LoI is primarily to increase legal certainty by unifying jurisprudence. However, it goes without saying that the predictability of rulings cannot be entirely guaranteed. That is why each system has both “preventive” mechanisms, consisting in the adoption of interpretative directives by the legislator or the courts, and mechanisms for restoring the disturbed uniformity. Above, I have pointed out some issues concerning the interpretation of law.

  • 83 A direct intervention can also be performed by the legislator beforehand - for example, if s/he def (...)

49Preventive measures include the establishment of clear rules of legislative technique, but also, inter alia, the determination of the use of legislative material and the impact of changing circumstances on the meaning of a provision. The indicated issues can be regulated by the legislator, especially if there is no consistent judicial practice in this respect. Such legal provisions are mainly83 indirect interpretive legislative interventions. Their aim is to stipulate rules of interpretation – either by a general interpretive act or by separate interpretive rules in particular codes of statutes. Further, the courts can develop uniform methods of interpretation to reduce situations where diverging lines of case law emerge on the interpretation of the same provisions.

50In turn, the restoration of uniformity is achieved in various ways:

  1. through the adoption of specific rulings by supreme courts resolving serious doubts in case law;

  2. through authentic interpretation made by the legislator;

  3. by amending laws that raise interpretative doubts.

  • 84 Even where the possibility for the legislature to give authentic interpretation is explicitly provi (...)

51As far as post facto measures are concerned, if it is the legislator who resolves the doubts that have arisen, it is a direct intervention. The direct interpretive legislative interventions are to impose an expected interpretative result (by defining the term, changing the wording, authentic interpretation, etc.). The possibility of amending the law derives from the very powers of the legislator. The option of making an authentic interpretation of the debatable provisions is more controversial. Some also classify it as a function of the legislator, pointing out that since the legislator can enact legislation, it can determine its correct interpretation a fortiori. But others are of the opinion that interpreting is the task of the judiciary and the legislator's competence in this respect would require an explicit legal provision. The simplest mechanism for restoring certainty is amendment, while the most controversial is authentic interpretation.84 I would not like to pursue it further here, but I also think that doubts with respect to interpretation should be resolved by the courts. The legislator can only amend law and grant certain courts special powers to resolve serious discrepancies in case law. It is important to indicate which courts, by what procedure and with what consequences, resolve serious divergences of interpretation of provisions that have been identified in legal practice. Competence provisions facilitating the restoration of certainty in the system are a kind of post facto tool and at the same time an indirect legislative intervention. They are a very important element of LoI.

52Preventive measures should be orderly because chaos in the choice of interpretive resources definitely reduces the uniformity of judgements. Although the legislator may, and sometimes should act preventively to influence this uniformity, it cannot monopolise the regulation of interpretation. It seems that a good solution in this respect is both the use of legislative action, as well as the responsible development of consistent practice by the courts and other participants in the legal discourse. Meanwhile, when it comes to determining how breached certainty should be restored, it is the legislator's responsibility to enact the relevant competence provisions in this regard. There is no doubt that the competences of state organs must be defined in statutory or even in constitutional law as precisely as possible.

53Providing certainty is undoubtedly not the sole purpose of creating LoIs, but it is an important one. It can be achieved by aiming for uniformity of methods, but also by restoring uniformity. The legislator may thus apply both post-facto and preventive measures within the LoI. The legislature can interfere with interpretation directly and even more so indirectly. One of the tasks of the legislator is undoubtedly to enact competence provisions.

8 Conclusion

54There is room for both indirect and direct legislative interference in the LoI. I do not see any obstacles to the legislator enacting both ‘preventive’ and post facto interpretative directives. Interpretative rules, provided certain conditions are met, do not violate the separation of powers. Among other things, the legislator has the right to indicate which legislative technique it uses and to indicate a preference for certain extrinsic aids used by interpreters, such as legislative materials or dictionaries. Post facto measures in the form of competence provisions are also an integral part of the LoI. The enactment of competence provisions telling who decides in cases of doubt also resolves many problems related to the application of rules indicating how doubts are to be resolved.

55If everything is allowed in legal interpretation, then a law can mean anything. Interpretative rules should make it possible to discover what the law means, and therefore what the legislator intended to communicate and achieve. The LoI cannot be relativised to some ad hoc context but must itself be as clear and certain as possible, hence the important role played by the written (statutory and constitutional) law in making LoI uniform.

  • 85 Silving 1949: 529.

56Although LoI is imperfect and does not provide an answer to all the drawbacks of legal interpretation, it is an essential element of each system.85 LoI in its broadest sense co-created by the courts and the legislature is not only an acceptable tool for increasing legal certainty – it is indispensable.

Acknowledgments.— The research for this paper was financed by the Polish National Science Centre-Narodowe Centrum Nauki fund within the framework of research project number 2018/29/N/HS5/00648.

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Notes

1 Brzeziński 2010: 343; Wróblewski 1973: 94.

2 Wróblewski 1973: 110.

3 Poland has regulations on the interpretation of contracts and wills, whereas there are no such regulations explicitly referring to the correct methods of interpreting the law. In some branches, the law indicates in whose favour the doubts which could not be removed should be resolved (Article 2a of the Tax Ordinance, Article 7a of the Code of Administrative Procedure). The Polish legislator also enacts some competence provisions granting certain courts powers to resolve serious interpretational discrepancies. The provision explicitly governing interpretation was Article 4 of the Civil Code, but it provided for nothing more than the fact that provisions of civil law should be interpreted and applied in accordance with the principles of the system and objectives of the People's Republic of Poland, and it was repealed on 1 October 1990.

4 I do not generally include legal definitions among the rules of interpretation. In point 2 I focus on the situation wherein the legislator establishes an interpretation of phrases and norms in response to doubts that have arisen.

5 The proposal to assign specific interpretative canons to specific normative acts was put forward in the literature by, among others, Adam Kiracofe (2004:585), who postulated the creation of codified canons of statutory interpretation.

6 Interpretation acts are in force in Australia, Canada, Hong Kong, Malaysia, Maldives, New Zealand, Nigeria, the Republic of Ireland, Singapore, and the United Kingdom.

7 Not all the civil codes contain interpretative provisions on the interpretation of statutory law (provisions on the interpretation of contracts and wills are much more common). Among the countries whose civil codes contain interpretative provisions are Chile, Colombia, Ecuador, Spain, and Italy. I mention the civil codes in the section on general interpretative directives because their provisions often apply not only to civil law. Sometimes the interpretative provisions in the civil codes refer to the interpretation of criminal law or other branches of law.

8 By specific directives, I mean rules indicated above in points 1 and 2.

9 Scalia, Garner 2012: 245.

10 Here, I will also omit the definitional directives she distinguishes.

11 For example, they order judges to interpret normative acts either broadly or narrowly, establish the non-application of the rule of lenity, the preference for the common rather than the specialised meaning of words used in a statute, etc. (Jellum 2009: 848).

12 Jellum 2009: 895.

13 Jellum 2009: 893-894.

14 Jellum 2009: 848-852. By the tools of interpretation the author means mainly intrinsic and extrinsic aids of legal interpretation. For instance, theoretical directives regulate, whether the court may use extrinsic aids, and if so, which ones and when.

15 Jellum 2009: 882-883.

16 Article 12 of the Italian “preleggi al codice civile” (Regio Decreto of 16 March 1942, n. 262) states that in the application of the law, no other meaning may be attributed to it than that which actually results from the proper meaning of the words used, depending on their relationship and the intention of the legislator. Examples of laws in force in the other countries mentioned will be discussed later in the text.

17 Draft T/332, https://www.helsinki.hu/wp-content/uploads/T332-Constitution-Amendment-29-May-2018-ENG.pdf.

18 https://www.amnesty.org/download/Documents/EUR2786332018ENGLISH.PDF.

19 https://www.readkong.com/page/attacking-the-last-line-of-defence-7435804.

20 Santaolalla López 1991: 56.

21 Chronowski, Drinoczi, Kocsis 2012: 41.

22 Rüthers 2020.

23 As Tomasz Pietrzykowski (2012: 214) notes, no one knows whether formalism as a theory of reasoning has ever actually been proclaimed (rather than merely refuted) on a wider scale.

24 In the latter situation, the legislator is only allowed to influence the understanding of the rules by making changes to the law itself, not by determining the correct interpretation of the law.

25 Alexander, Prakash 2003: 105.

26 Alexander, Prakash 2003: 109.

27 Alexander, Prakash 2003: 100.

28 Alexander, Prakash 2003: 108.

29 Rosenkranz 2002: 2092-2101.

30 Kiracofe 2004: 597.

31 The directives of the legislative technique have been formalised in legislation in Poland and Spain, among other countries. Also, many interpretation acts establish norms intended both to create law and to interpret it.

32 Marmor 2012: 1.

33 Kiracofe 2004: 580.

34 Rosenkranz 2002: 2143-2144.

35 For example, section 4, Interpretation Act is applied to New Zealand legislation, whether enacted before or after the Interpretation Act 1999, unless the Act itself provides otherwise or the context of the enactment requires a different interpretation.

36 Rosenkranz 2002: 2143-2144.

37 Jellum 2009: 852-854.

38 Alternatively, consideration may be given to allowing retroactive interpretation to a limited extent, narrowing its scope to the situations in which the old law had no settled interpretation. However, the introduction of such a solution would require great caution. A more detailed analysis of this issue goes beyond the scope of this paper.

39 Guastini 2018: 317-322.

40 Núñez Vaquero 2016: 129.

41 Chronowski, Drinoczi, Kocsis 2012: 41.

42 For example, if they explicitly allow for the use of legislative materials to discover the meaning, then it goes without saying that the legislative materials produced in the process of working on the interpretive rules can be consulted; if the interpretive rules prescribe following the meaning that best achieves the purpose of the regulation, then we should, in applying those rules, consider what the purpose of the rules was, etc.

43 Out of the many acts analysed, I have chosen these three because of the interesting solutions adopted in them and because the acts in question differ from one another. The issues mentioned below are also to some extent dealt with in the interpretative provisions of other countries, but due to lack of space, I must limit my analysis to a few, on the basis of which I will illustrate the problems discussed.

44 Interpretation Act 2005, Ireland.

45 Acts Interpretation Act 1901, Australia.

46 Royal decree of July 24, 1889 – Spanish Civil Code (Spanish title: Código Civil, BOE núm. 206 de 25.07.1889, BOE-A-1889-4763, incluye reformas).

47 In many countries, LoI is regulated only residually or not at all. It is therefore worth juxtaposing the existing regulations with the situation in which the same case law has to search for relevant rules.

48 MacCormick, Summers 1991: 462.

49 MacCormick, Summers 1991: 463.

50 Balkin, Levinson: 2009: 711.

51 It should be noted that purpose and intention are not the same thing, although they frequently coincide. Some authors regard the 'purpose' of a statute as a type of intention (Ekins, Goldsworthy 2014: 57).

52 Judgment of the Tribunal Superior de Justicia. Sala de lo Social in Coruña of December 18, 2017, STSJ GAL 8485/2017.

53 Judgment of the Tribunal Superior de Justicia. Sala de lo Social in Coruña of December 18, 2017, STSJ GAL 8485/2017; judgment of the Tribunal Supremo. Sala de lo Civil in Madrid of October 4, 2019, STS 3130/2019; Judgment of the Tribunal Supremo. Sala de lo Contencioso in Madrid, of March 7, 2017, STS 953/2017.

54 Judgement of the Tribunal Superior de Justicia. Sala de lo Social in Albacete of July 23, 2020, STSJ CLM 1903/2020; judgement of the Tribunal Supremo. Sala de lo Contencioso in Madrid of July 23, 2020, STS 2687/2020; judgement of the Tribunal Supremo. Sala de lo Penal in Madrid of July 22, 2020, STS 2533/2020; judgement of the Tribunal Supremo. Sala de lo Civil in Madrid of July 20, 2020, STS 2668/2020.

55 Robertson 2009: 401.

56 An example of that diversity is the construction of a rational (reasonable) lawmaker used in Polish jurisprudence. See Judgment of the SN of March 7, 2014, I FSK 504/13, LEX No 1463749; Judgment of the WSA in Warsaw of April 22, 2009, IV SA/Wa 177/09, LEX No 550523; Order of the SN of March 21, 2013, II CZ 192/12, LEX No. 1324277; Judgment of the WSA in Rzeszów of July 17, 2014, I SA/Rz 451/14, LEX No. 1497741; Judgment of the WSA in Gorzów Wielkopolski of January 18, 2018, I SA/Go 436/17, LEX No. 2431570. The reference to the rational lawmaker does not necessarily require knowledge of the intentions of the actual legislator. As noted in the literature, the doctrine of the rational legislator flourished, among other things, because in Poland access to evidence of the intentions of the actual legislator was, until recently, very difficult to acquire (Bielska-Brodziak 2017: 86). The presumption of the legislator's rationality gives rise to many interpretative guidelines, mainly of a linguistic nature (e.g., lege non distiguente, presumption of a consistent usage). It is important to note that the same directives are also invoked in other countries without reference to the construction of a rational legislator. Nonetheless this presumption is often criticised because it is sometimes used as a cover for the unauthorised correction of legal texts (Morawski 2002: 182-184).

57 It is not necessary in every situation, but in some it may have important consequences.

58 The definition of legal interpretation and the preferred order of directives should not be conflated, but there is no denying that how we define interpretation, and above all where we draw the line between the functions of the legislature and the courts, determines a number of other decisions about which actions can be taken in making interpretation, including about the preferred methods and interpretive aids. The debate over the adoption of different theories of interpretation is particularly concerned with cooperation between courts and the legislature (Marmor 2012: 16). As I have already noted, LoI is considered a consequence of the normative assumption concerning the relationship between the legislator and the courts (Marmor 2012: 1). The lack of a coherent understanding of this relationship may give rise to uncertainty. Consensus on this point is crucial for deciding the content of LoI.

59 Since the mere reference to purpose or intention, although an important starting point for the regulation of legal interpretation, does not determine that much, the more interesting provisions are those referring explicitly to the methods and tools of interpretation. Although it is not a bad idea to define what falls within the scope of interpretation, and thus within judicial competence. For example, if an interpretation is a search for the intentions of the ideal legislator, then the courts may correct the legislator; the broad acceptance of dynamic interpretation is in a sense a power to make "amendments" to the law, etc.

60 As Zygmunt Tobor (2010: 194) points out, “The basic question in an interpretative discourse is not how? but what? The answer to the question of what is simple. It will always be the intention of the legislator. If we give a different answer to the question of what, we will define activities that have little to do with legal interpretation. It is an analytical consequence, resulting from the concept of law.” The LoI's task is to indicate the how, but this has to fit within a definite 'what'.

61 Jellum, Hricik 2009: 33-34.

62 Valladares Rascón 2001: 31.

63 Valladares Rascón 2001: 31.

64 Rodríguez-Toubes Muñiz 2013: 610.

65 Organic Act of November 23, 1995 – Criminal Code (Spanish title: Código Penal, BOE núm. 281 de 24.11.1995, BOE-A-1995-25444).

66 Donlan, Kennedy 2006: 131-132.

67 Bielska-Brodziak 2012: 151.

68 Bielska-Brodziak 2017: 86.

69 In some countries there were prohibitions on the use of legislative materials, but these have been loosened. In the UK, the use of preparatory materials in constructing interpretive arguments was not permitted for a long time (see, for example, Davis v Johnson [1978] 2 WLR 553). The breakthrough came only in the early 1990s, in Pepper v Hart, in which the court allowed recourse to travaux preparatoires under certain conditions. See Pepper v Hart [1992] 3 WLR 1032 House of Lords.

70 Jellum 2009: 882-883.

71 Nourse 2014: 1613-1658.

72 Konca 2019: 38-50.

73 Konca 2020: 200-206.

74 Konca 2020: 200-206.

75 Lee, Mouritsen 2018: 825.

76 Judgment of the Tribunal Supremo. Sala de lo Penal, of May 20, 2020, STS 1406/2020; Judgment of the Audiencia Nacional. Sala de lo Social in Madrid, of July 30, 2020, SAN 2090/2020. Importantly, in both cases cited, the courts justified the adoption of an interpretation in line with the social reality at the time the norm was applied. The justification was not the mere existence of the relevant provision (Article 3.1 of the Civil Code). In the first case concerning the offence of public glorification or justification of jihadist terrorism and disparagement of victims of terrorist crimes, the use of such an interpretive indication is linked to the type of offence in question (the same in cases: Judgment of the Tribunal Supremo. Sala de lo Penal, of December 14, 2018, STS 4133/2018; Judgment of the Tribunal Supremo. Sala de lo Penal, of February 4, 2018, STS 350/2019). The second issue concerns the rights of workers who have been affected by regulations introduced due to the COVID-19 pandemic. As the court emphasised, “it is the current social reality itself that leads us to the aforementioned interpretation of the above-mentioned provisions and, specifically, those contained in Chapter II of Royal Decree-Law 8/2020, of 17 March, on extraordinary urgent measures to address the economic and social impact of COVID-19, which establishes measures” that are “intended to prevent a temporary situation such as the current one from having a negative structural impact on employment”. The legitimacy of the parties' reliance on an interpretation in line with the social reality at the time of the application of the provision is thoroughly examined by the courts (e.g. Judgment of the Tribunal Supremo. Sala de lo Contencioso, of July 23, 2020, STS 2544/2020).

77 Aubrey v The Queen (2017) HCA 18, [29] (Kiefel, Bell, Keane, Nettle and Edelman JJ).

78 Burton Crawford, Meagher 2020: 220.

79 Order of the Sąd Najwyższy, of April 17, 2018, IV KK 296/17, OSP 2019/2/15.

80 Order of the Sąd Najwyższy, of June 14, 2018, II KK 333/17, OSNKW 2018/9/61.

81 Judgment of the Tribunal Superior de Justicia. Sala de lo Social in Coruña of October 30, 2019, STSJ GAL 5714/2019.

82 It is one thing to assign specific canons to a particular statute, given the legislative technique used in drafting that statute, but it is an entirely different thing to codify canons of interpretation.

83 A direct intervention can also be performed by the legislator beforehand - for example, if s/he defines the terms used in advance.

84 Even where the possibility for the legislature to give authentic interpretation is explicitly provided for in the provision, the literature stresses the importance of precision in determining such competence, given that they are not part of the typical functions of the legislature, and strongly criticises the lack thereof (see Sentence C-820-06 of 4 October 2006 and the views of the doctrine cited therein). For more on the criticism of authentic interpretation, see Endicott 2020: 11-17.

85 Silving 1949: 529.

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References

Electronic reference

Paulina Konca, Creating law of interpretation: a risky or fundamental step?Revus [Online], 45 | 2021, Online since 02 November 2021, connection on 09 December 2021. URL: http://journals.openedition.org/revus/7500; DOI: https://doi.org/10.4000/revus.7500

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About the author

Paulina Konca

PhD, University of Silesia (Poland)

Address: Wydział Prawa i Administracji - Uniwersytet Śląski - ul. Bankowa 11b, 40-007 Katowice -Poland

E-mail: paulinakonca [at] gmail.com

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