STATUTORY CONSTRUCTION

DEFINITION

The process of determining what a particular statute means so that a court may apply it accurately.

OVERVIEW

Any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. To discover a statute's original intent, courts first look to the words of the statute and apply their usual and ordinary meanings.

If after looking at the language of the statute the meaning of the statute remains unclear, courts attempt to ascertain the intent of the legislature by looking at legislative history and other sources. Courts generally steer clear of any interpretation that would create an absurd result which the Legislature did not intend.

Other rules of statutory interpretation include, but are not limited to:

Statutes should be internally consistent. A particular section of the statute should not be inconsistent with the rest of the statute.When the legislature enumerates an exception to a rule, one can infer that there are no other exceptions.When the legislature includes limiting language in an earlier version of a statute, but deletes it prior to enactment of the statute, it can be presumed that the limitation was not intended by the legislature.The legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another.Where legislation and case law conflict, courts generally presume that legislation takes precedence over case law.The Rule of Lenity: in construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant.A court may also look at: the common usage of a word, case law, dictionaries, parallel reasoning, punctuationStatutes are sometimes ambiguous enough to support more than one interpretation. In these cases, courts are free to interpret statutes themselves. Once a court interprets the statute, other courts usually will not go through the exercise again, but rather will enforce the statute as interpreted by the other court.

Statutory Construction

When considering a statute, a court will apply rules of construction only when the language contained in the statute is ambiguous. Under the "plain-meaning" rule, if the intention of the legislature is "so apparent from the face of the statute that there can be no question as to its meaning, there is no need for the court to apply canons of construction" (Overseas Education Ass'n v. Federal Labor Relations Authority, 876 F.2d 960 [D.C. Cir. 1989]). Thus, before even considering what canons to apply, the court must first determine whether the statute in question is ambiguous. Courts have generally held that a statute is ambiguous when reasonably well-informed persons could understand the language in either of two or more senses (State ex rel. Neelen v. Lucas, 24 Wis. 2d 262, 128 N.W.2d 425 [1964]).

If a statute is found to be ambiguous, the court then applies a variety of canons, or rules, to help it determine the meaning of the statute. Issues of statutory construction are generally decided by the judge and not by the jury. In interpreting statutes, a judge tries to ascertain the intent of the legislature

in enacting the law. By looking to legislative intent, the court attempts to carry out the will of the lawmaking branch of the government. This philosophy has its origins in the English Common Law first established over four hundred years ago. As the legal philosopher Sir Edward Coke wrote in 1584, "[T]he office of all judges is always to make such construction as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for Continuance of the mischief … according to the true intent of the makers of the act" (Heydon's Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 [King's Bench 1584]). In more contemporary terms, courts consider the history and nature of the subject matter of the statute; the end to be attained by the law; the "mischief," or wrong, sought to be remedied; and the purpose to be accomplished by the law (Crowder v. First Federal Savings & Loan Ass'n of Dallas, 567 S.W.2d 550, Tex. App. 1978). In determining legislative intent courts usually turn to a variety of sources: the language of the statute itself; the Legislative History of prior enactments on a similar subject; the proceedings surrounding the passage of the law, including debates and committee reports; and, if they are available, interpretations of the law by administrative officials.

To aid in the interpretation of an ambiguous law, a court may also look to more "intrinsic" rules not related to the activities preceding the passage of the statute. These rules are applied to help the court analyze the internal structure of the text and the conventional meanings of the terms used in the law. In addition, intrinsic rules may be used when the court has little or no existing legislative history, such as that provided by committee reports or records of other proceedings, to draw on in interpreting the statute.

Some of these canons of construction are expressed in well-known Latin phrases or maxims. Under ejusdem generis (of the same kind, class, or nature), when general words follow specific words in a statute in which several items have been enumerated, the general words are construed to embrace only objects similar in nature to the objects enumerated by the preceding specific words of the statute. Ejusdem generis saves the legislature from having to spell out in advance every contingency to which the statute could apply. For example, in a statute granting a department of conservation the authority to sell "gravel, sand, earth or other material," a court held that "other material" could only be interpreted to include materials of the same general type and did not include commercial timber (Sierra Club v. Kenney, 88 Ill. 2d 110, 57 Ill. Dec. 851, 429 N.E.2d 1214 [1981]). In the opposite situation, where specific words follow general ones, ejusdem generis is also applied; again, the general term embraces only things that are similar to those specifically enumerated.

Another Maxim of statutory construction is expressio unius est exclusio alterius. Roughly translated, this phrase means that whatever is omitted is understood to be excluded. Thus, if a statute provides for a specific sanction for noncompliance with the statute, other sanctions are excluded and cannot be applied (Sprague v. State, 590 P.2d 410 [Alaska 1979]). The maxim is based on the rationale that if the legislature had intended to accommodate a particular remedy or allowance, it would have done so expressly; if the legislature did not provide for such an allowance or event, it should be assumed that it meant not to. The maxim has wide application and has been used by courts to interpret constitutions, treaties, wills, and contracts as well as statutes. Nevertheless, expressio unius est exclusio alterius does have its limitations. Courts have held that the maxim should be disregarded in cases in which an expanded interpretation of a statute will lead to beneficial results or will serve the purpose for which the statute was enacted.

Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply

rules of statutory interpretation to legislation enacted by the legislature or to delegated legislation such as administrative agency regulations.

Meaning[edit]

The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically address all matters. Legislation may contain uncertainties for a variety of reasons:

Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time.

Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult.

Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.

Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. Nevertheless in practice, by performing the construction the court can make sweeping changes in the operation of the law.

Statutory interpretation refers to the process by which a court looks at a statute and determines what it means. A statute, which is a bill or law passed by the legislature, imposes obligations and rules on the people. Statutes, however, although they make the law, may be open to interpretation and have ambiguities. Statutory interpretation is the process of resolving those ambiguities and deciding how a particular bill or law will apply in a particular case.

Assume, for example, that a statute mandates that all motor vehicles travelling on a public roadway must be registered with the Department of Motor Vehicles (DMV). If the statute does not define the compass of the term "motor vehicles", then that term will have to be interpreted if questions arise in a court of law. A person driving a motorcycle might be pulled over and the police may try to fine him if his motorcycle is not registered with the DMV. If that individual argued to the court that a motorcycle is not a "motor vehicle," then the court would have to interpret the statute to determine what the legislature meant by "motor vehicle" and whether or not the motorcycle fell within that definition and was covered by the statute.

There are numerous rules of statutory interpretation. The first rule and most important rule is the rule dealing with the statute's plain language. This rule essentially states that the statute means what it says. If, for example, the statute says "motor vehicles", then the court is most likely to construe that the legislation is referring to the broad range of motorised vehicles normally required to travel along roadways and not "aeroplanes" or "bicycles" even though aeroplanes are vehicles propelled by a motor and bicycles may be used on a roadway.

Conflicts between sources of law[edit]

Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute.

U.S. Supreme Court: "We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:" Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980). "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254.

Supreme Court of Virginia: "Every part of an act is presumed to be of some effect and is not to be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 335, 149 S.E. 541, 542 (1929).

Supreme Court of Alaska: "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);

Arkansas Supreme Court: "When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent." Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619. (2006)

Supreme Court of New Mexico: "The principal command of statutory construction is that the court should determine and effectuate the intent of the legislature using the plain language of the statute as the primary indicator of legislative intent." State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) “The words of a statute . . . should be given their ordinary meaning, absent clear and express legislative intention to the contrary,” as long as the ordinary meaning does “not render the statute’s application absurd, unreasonable, or unjust.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) When the meaning of a statute is unclear or ambiguous, we have recognized that it is “the high duty and responsibility of the judicial branch of government to facilitate and promote the legislature’s accomplishment of its purpose.” State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). - New Mexico v. Juan, 2010-NMSC-041, August 9, 2010

U.S. Court of Appeals for the Second Circuit: "As in all statutory construction cases, we begin with the language of the statute. The first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) "[U]nless otherwise defined, statutory words will be interpreted as taking their

ordinary, contemporary, common meaning." United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir. 1994).

Federal jurisdictions may presume that either federal or local government authority prevails in the absence of a defined rule. In Canada, there are areas of law where provincial governments and the federal government have concurrent jurisdiction. In these cases the federal law is held to be paramount. However, in areas where the Canadian constitution is silent, the federal government does not necessarily have superior jurisdiction. Rather, an area of law that is not expressly mentioned in Canada's Constitution will have to be interpreted to fall under either the federal residual jurisdiction found in the preamble of s. 91 -- known as the Peace, Order and Good Government clause -- or the provinces residual jurisdiction of "Property and Civil Rights" under s. 92(13) of the 1867 Constitution Act. This contrasts with other federal jurisdictions, notably the United States and Australia, where it is presumed that if legislation is not enacted pursuant to a specific provision of the federal Constitution, the states will have authority over the relevant matter in their respective jurisdictions, unless the state's definitions of their statutes conflicts with federally established or recognized rights.

Internal and external consistency[edit]

It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The ejusdem generis (or eiusdem generis, Latin for "of the same kind") rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. The rule results that where "general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." 49 F. Supp. 846, 859. Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated; i.e., firearms, or perhaps more narrowly still, handguns. A hypothetical court may have to determine whether a sword, a Japanese throwing star, or a Taser fit into the "other" category of the statute. Here, the term "other dangerous weapons" must be given a meaning of the "same kind" as the word of established meaning.

A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation.

Statements of the legislature[edit]

Legislative bodies themselves may try to influence or assist the courts in interpreting their laws by placing into the legislation itself statements to that effect. These provisions have many different names, but are typically noted as:

Findings;

Declarations, sometimes suffixed with of Policy or of Intent; or

Sense of Congress, or of either house in multi-chamber bodies.

These provisions of the bill simply give the legislature's goals and desired effects of the law, and are considered nonsubstantive and non-enforcable in and of themselves.[1][2]

Canons[edit]

Also known as canons of construction, canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.

Textual[edit]

Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.

Plain meaning

When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning "[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."

Rule against surplusage

Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred.

Ejusdem generis ("of the same kinds, class, or nature")

When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

Expressio unius est exclusio alterius ("the express mention of one thing excludes all others")

Items not on the list are impliedly assumed not to be covered by the statute or a contract term.[3] However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."

In pari materia ("upon the same matter or subject")

When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

Noscitur a sociis ("a word is known by the company it keeps")

When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

Reddendo singula singulis or "referring each to each"

"When a will says "I devise and bequeath all my real and personal property to A", the principle of reddendo singula singulis would apply as if it read "I devise all my real property, and bequeath all my personal property, to B", since the word devise is appropriate only to real property and the term bequeath is appropriate only to personal property."[4]

Generalia specialibus non derogant ("the general does not detract from the specific")

Main article: lex specialis

Described in The Vera Cruz (1884) 10 App. Cas. 59 as: "Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so." This means that if a later law and an earlier law are potentially—but not necessarily—in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.

Substantive[edit]

Substantive canons instruct the court to favor interpretations that promote certain values or policy results.

"Charming Betsy" Canon

National statute must be construed so as not to conflict with international law. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804): "It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains..."

Interpretation in Light of Fundamental Values

Statute does not violate fundamental societal values. See, for example, Holy Trinity Church v. United States, 143 U.S. 457 (1892); see also, Coco v The Queen.[5] However, legislation that is intended to be consistent with fundamental rights can be overridden by clear and unambiguous language.[6]

Rule of Lenity

In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant. See McNally v. United States, 483 U.S. 350 (1987); See, e.g., Muscarello v. U.S., 524 U.S. 125 (1998) (declining to apply the rule of lenity); Evans v. U.S., 504 U.S. 255 (1992) (Thomas, J., dissenting); Scarborough v. U.S., 431 U.S. 563 (1977) (Stewart, J., dissenting); See United States v. Santos (2008).

Avoidance of abrogation of state sovereignty

See Gregory v. Ashcroft, 501 U.S. 452 (1991); see also Gonzales v. Oregon, 546 U.S. 243 (2006); see also Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003), except where such would deprive the defendant of bedrock, foundational rights that the Federal Government intended to be the minimum floor that the states were not allowed to fall beneath : See Dombrowski v Pfister, 380 U.S. 479 (1965).[7]

"Indian" Canon

National statute must be construed in favor of Native Americans. See Chickasaw Nation v. United States, 534 U.S. 84 (2001): "statutes are to be construed liberally in favor of Indians with ambiguous provisions

interpreted to their benefit." This canon can be likened to the doctrine of contra proferentem in contract law.

Deference[edit]

Deference canons instruct the court to defer to the interpretation of another institution, such as an administrative agency or Congress. These canons reflect an understanding that the judiciary is not the only branch of government entrusted with constitutional responsibility.

Deference to Administrative Interpretations (US Chevron deference)

If a statute administered by an agency is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This rule of deference was formulated by the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Avoidance Canon (Canon of Constitutional Avoidance)

If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.[8][9]

Avoiding Absurdity

The legislature did not intend an absurd or manifestly unjust result.[10][11]

Clear statement rule

When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification.

Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, aka "Last in Time")

When two statutes conflict, the one enacted last prevails.

Criticism[edit]

Critics of the use of canons argue that canons impute some sort of "omniscience" to the legislature, suggesting that it is aware of the canons when constructing the laws. In addition, it is argued that the canons give a credence to judges who want to construct the law a certain way, imparting a false sense of justification to their otherwise arbitrary process. In a classic article, Karl Llewellyn argued that every canon had a "counter-canon" that would lead to the opposite interpretation of the statute.[12]

European perception[edit]

Following the German scholar Friedrich Carl von Savigny (1779-1861) the four main interpretation methods are:

Grammatical interpretation: using the literal meaning of the statutory text ("grammatical" is actually the wrong word, but it is commonly used for this type of interpretation).

Historical interpretation: using the legislative history, to reveal the intent of the legislator.

Systematic interpretation: considering the context of provisions, if only by acknowledging in which chapter a provision is listed.

Teleological interpretation: then the purpose of the law is considered.

It is controversial whether certain interpretation methods must be preferred. Germans prefer a "grammatical" (literal) interpretation, because the statutory text has a democratic legitimation, and "sensible" interpretations are risky, in particular in view of German history. "Sensible" means different things to different people. The modern common law perception that courts actually make law is very different. All of the above methods may seem reasonable:

It may be considered undemocratic to ignore the literal text, because only that text was passed through democratic processes. Indeed, there may be no single legislative "intent" other than the literal text that was enacted by the legislature, because different legislators may have different views about the meaning of an enacted statute. It may also be considered unfair to depart from the literal text because a citizen reading the literal text may not have fair notice that a court would depart from its literal meaning, nor fair notice as to what meaning the court would adopt. It may also be unwise to depart from the literal text if judges are generally less likely than legislatures to enact wise policies.

But it may also seem unfair to ignore the intent of the legislators, or the system of the statutes. So for instance in Dutch law, NO general priority sequence for the above methods is recognized.

It should be noted that the freedom of interpretation largely varies by area of law. Criminal law and tax law must be interpreted very strictly, and never to the disadvantage of citizens, but liability law sometimes is even interpreted contra legem, because here (usually) both parties are citizens.

Philosophies[edit]

Over time, various methods of statutory construction have fallen in and out of favor. Some of the better known rules of construction methods are:

The Golden rule

The Literal rule

The Mischief rule

The Purposive approach

A statute is a formal written enactment of a legislative authority that governs a state, city, or country.[1]Typically, statutes command or prohibit something, or declare policy.[1] The word is often used to

distinguish law made by legislative bodies from case law, decided by courts, and regulations issued by government agencies.[1] Statutes are sometimes referred to as legislation or "black letter law." As a source of law, statutes are considered primary authority (as opposed to secondary authority).

Instead, it presumably refers to the practice of setting law books and citing legal precedents in blackletter type, a tradition that survived long after the switch to Roman and italic text for other printed works.

Law is a term which does not have a universally accepted definition,[2] but one definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour.[3] Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedents (normally in common law jurisdictions). Private individuals can create legally binding contracts, including (in some jurisdictions) arbitration agreements that exclude the normal court process. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics, and society in various ways and serves as a mediator of relations between people.

A general distinction can be made between civil law jurisdictions (including canon and socialist law), in which the legislature or other central body codifies and consolidates their laws, and common law systems, where judge-made binding precedents are accepted.

Historically, religious laws played a significant role even in settling of secular matters, which is still the case in some religious communities, particularly Jewish, and some countries, particularly Islamic. While Islamic Sharia law is the world's most widely used religious law.[4] Adopted to every field of actual day-to-day life since thousands of years, Jewish Halakha is the oldest collective body of religious laws still in use.

The adjudication of the law is generally divided into two main areas. Criminal law deals with conduct that is considered harmful to social order and in which the guilty party may be imprisoned or fined. Civil law (not to be confused with civil law jurisdictions above) deals with the resolution of lawsuits (disputes) between individuals or organisations. These resolutions seek to provide a legal remedy (often monetary damages) to the winning litigant.

Under civil law, the following specialties, among others, exist: Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security. Tort law allows claims for compensation if a person's property is harmed. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action.

To implement and enforce the law and provide services to the public by public servants, a government's bureaucracy, military, and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress[citation needed].

Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice. There is an old saying that 'all are equal before the law.'. The author Anatole France said in 1894, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread."[5] Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is

better than the rule of any individual."[6] Mikhail Bakunin said: "All law has for its object to confirm and exalt into a system the exploitation of the workers by a ruling class".[7] Cicero said "more law, less justice".[8] Marxist doctrine asserts that law will not be required once the state has withered away.[9]

Whether it is possible or desirable to define law[edit]

There have been many attempts to produce "a universally acceptable definition of law". By 1972, no such definition had been produced.[2] McCoubrey and White said that the question "what is law?" has no simple answer.[10] Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used. He said that, for example, "early customary law" and "municipal law" were contexts where the word "law" had two different and irreconcilable meanings.[11] Thurman Arnold said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned.[12] It is possible to take the view that there is no need to define the word "law" (e.g. "let's forget about generalities and get down to cases").[13]

Proposed definitions[edit]

One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour.[3] In The Concept of Law Hart argued law is a "system of rules";[14] Austin said law was "the command of a sovereign, backed by the threat of a sanction";[15] Dworkin describes law as an "interpretive concept" to achieve justice;[16] and Raz argues law is an "authority" to mediate people's interests.[17] Holmes said "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."[18] Aquinas said that law is a rational ordering of things which concern the common good that is promulgated by whoever is charged with the care of the community.[19] This definition has both positivist and naturalist elements.[20]

am·bi·gu·i·ty

noun

uncertainty or inexactness of meaning in language.

"we can detect no ambiguity in this section of the Act"

synonyms: vagueness, obscurity, abstruseness, doubtfulness, uncertainty; More

a lack of decisiveness or commitment resulting from a failure to make a choice between alternatives.

"the film is fraught with moral ambiguity"

Ambiguity, in law, is of two kinds, patent and latent.

Patent ambiguity is that ambiguity which is apparent on the face of an instrument to any one perusing it, even if he be unacquainted with the circumstances of the parties.[1] In the case of a patent ambiguity parol evidence is admissible to explain only what has been written, not what it was intended to write. For example, in Saunderson v. Piper, 18 39, 5 B.N.C. 425, where a bill was drawn in figures for X245 and in words for two hundred pounds, evidence that "and forty-five" had been omitted by mistake was rejected. But where it appears from the general context of the instrument what the parties really meant, the instrument will be construed as if there was no ambiguity, as in Saye and Sele's case, io Mod. 46, where the name of the grantor had been omitted in the operative part of a grant, but, as it was clear from another part of the grant who he was, the deed was held to be valid.

Latent ambiguity is where the wording of an instrument is on the face of it clear and intelligible, but may, at the same time, apply equally to two different things or subject matters, as where a legacy is given "to my nephew, John," and the testator is shown to have two nephews of that name. A latent

ambiguity may be explained by parol evidence, for, as the ambiguity has been brought about by circumstances extraneous to the instrument, the explanation must necessarily be sought for from such circumstances

Ambiguity

Uncertainty or doubtfulness of the meaning of language.

When language is capable of being understood in more than one way by a reasonable person, ambiguity exists. It is not the use of peculiar words or of common words used in a peculiar sense. Words are ambiguous when their significance is unclear to persons with competent knowledge and skill to understand them.

There are two categories of ambiguity: latent and patent. Latent ambiguity exists when the language used is clear and intelligible so that it suggests one meaning but some extrinsic fact or evidence creates a need for interpretation or a choice among two or more possible meanings. In a classic case, Raffles v. Wichelhaus, 159 Eng. Rep. 375 (Ex. 1864), a contract was made to sell 125 bales of cotton that were to arrive on a ship called Peerless that sailed from Bombay, India. Unknown to the parties to the contract, two ships of the same name were to arrive from the same port during different months of the same year. This extraneous fact necessitated the interpretation of an otherwise clear and definite term of the contract. In such cases, extrinsic or Parol Evidence may be admitted to explain what was meant or to identify the property referred to in the writing.

A patent ambiguity is one that appears on the face of a document or writing because uncertain or obscure language has been used.

In the law of contracts, ambiguity means more than that the language has more than one meaning upon which reasonable persons could differ. It means that after a court has applied rules of interpretation, such as the plain meaning, course of dealing, Course of Performance, or Trade Usage rules to the unclear terms, the court still cannot say with certainty what meaning was intended by the parties to the contract. When this occurs, the court will admit as evidence extraneous proof of prior or contemporaneous agreements to determine the meaning of the ambiguous language. Parol evidence may be used to explain the meaning of a writing as long as its use does not vary the terms of the writing. If there is no such evidence, the court may hear evidence of the subjective intention or understanding of the parties to clarify the ambiguity.

Sometimes, courts decide the meaning of ambiguous language on the basis of who was responsible or at fault for the ambiguity. When only one party knew or should have known of the ambiguity, the unsuspecting party's subjective knowledge of the meaning will control. If both parties knew or should have known of the uncertainty, the court will look to the subjective understanding of both. The ambiguity no longer exists if the parties agree upon its meaning. If the parties disagree and the ambiguous provisions are material, no contract is formed because of lack of mutual assent.

Courts frequently interpret an ambiguous contract term against the interests of the party who prepared the contract and created the ambiguity. This is common in cases of adhesion contracts and insurance contracts. A drafter of a document should not benefit at the expense of an innocent party because the drafter was careless in drafting the agreement.

In Constitutional Law, statutes that contain ambiguous language are void for vagueness. The language of such laws is considered so obscure and uncertain that a reasonable person cannot determine from a

reading what the law purports to command or prohibit. This statutory ambiguity deprives a person of the notice requirement of Due Process of Law, and, therefore, renders the statute unconstitutional.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

ambiguity n. when language has more than one meaning. If the ambiguity is obvious it is called "patent," and if there is a hidden ambiguity it is called "latent." If there is an ambiguity, and the original writer cannot effectively explain it, then the ambiguity will be decided in the light most favorable to the other party.

in·ter·pre·ta·tion

noun

the action of explaining the meaning of something.

"the interpretation of data"

Construction

The process by which the meaning of an ambiguous provision of a statute, written document, or oral agreement is determined.

A judge usually makes a construction of an unclear term in a document at issue in a case that involves a dispute as to its legal significance. The judge examines the circumstances surrounding the provision, laws, other writings, verbal agreements dealing with the same subject matter, and the probable purpose of the unclear phrase in order to conclude the proper meaning of such words. Once the judge has done so, the court will enforce the words as construed. However, for language that is plain and clear, there cannot be a construction.

When ambiguous language is given its exact and technical meaning, and no other equitable considerations or reasonable implications are made, there has been a strict or literal construction of the unclear term.

A liberal or equitable construction permits a term to be reasonably and fairly evaluated so as to implement the object and purpose for which the document is designed. This does not mean that the words will be strained beyond their natural or customary meanings.

A rule of construction is a principle that either governs the effect of the ascertained intention of a document or agreement containing an ambiguous term or establishes what a court should do if the intention is neither express nor implied.A regular pattern of decisions concerning the application of a particular provision of a statute is a rule of construction that governs how the text is to be applied in similar cases.

The constitutionality of an ambiguous statute is a Question of Law and a matter of construction within the province of the court. The meaning of the language of the statute must be determined in light of its objectives, purposes, and practical effect as a whole. If a statute is so ambiguous that a judge cannot make a reasonable construction of its disputed provisions, and a reasonable person could not determine from reading it what the law orders or prohibits, it is void for vagueness because it violates the guarantee of Due Process of Law.

Some states have codified terms that had in the past been subject to repeated judicial construction. The need for court proceedings to determine the real meaning of some terms has been eliminated by enactment of statutes that give specific meanings—such as specifying that "calendar day" means a twenty-four hour period starting on midnight of one date and ending midnight of the next day.

construction n. the act of a lawyer or court in interpreting and giving meaning to a statute or the language of a document such as a contract or will when there is some ambiguity or question about its meaning. In constitutional law, there is a distinction between liberal construction (broad construction) and strict construction (narrow construction.) Liberal construction adds modern and societal meanings to the language, while strict construction adheres closely to the language without interpretation.

Intent

A determination to perform a particular act or to act in a particular manner for a specific reason; an aim or design; a resolution to use a certain means to reach an end.

Intent is a mental attitude with which an individual acts, and therefore it cannot ordinarily be directly proved but must be inferred from surrounding facts and circumstances. Intent refers only to the state of mind with which the act is done or omitted. It differs from motive, which is what prompts a person to act or to fail to act. For example, suppose Billy calls Amy names and Amy throws a snowball at him. Amy's intent is to hit Billy with a snowball. Her motive may be to stop Billy's taunts.

The legal importance of what an individual intended depends on the particular area of law. In contract law, for example, the intention of the parties to a written contract is fixed by the language of the contract document.

In Tort Law, intent plays a key role in determining the civil liability of persons who commit harm. An intentional tort is any deliberate invasion of, or interference with, the property, property rights, personal rights, or personal liberties of another that causes injuries without Just Cause or excuse. In tort an individual is considered to intend the consequences of an act—whether or not she or he actually intends those consequences—if the individual is substantially certain that those consequences will result.

Basic intentional torts include Assault and Battery, conversion of property, false arrest, False Imprisonment, Fraud, intentional infliction of emotional distress, invasion of privacy, and Trespass. It is ordinarily not necessary that any wrongful or illegal means be used to accomplish the negative result, provided the wrongful conduct was intentional and was not accompanied by excuse or justification.

In Criminal Law the concept of criminal intent has been called mens rea, which refers to a criminal or wrongful purpose. If a person innocently causes harm, then she or he lacks mens rea and, under this concept, should not be criminally prosecuted.

Although the concept of mens rea is generally accepted, problems arise in applying it to particular cases. Some crimes require a very high degree of intent, whereas others require substantially less. Larceny, for example, requires that the defendant intentionally take property to which the person knows he or she is not entitled, intending to deprive the rightful owner of possession permanently. On the other hand, negligent homicide requires only that the defendant negligently cause another's death.

Criminal law has attempted to clarify the intent requirement by creating the concepts of "specific intent" and "general intent." Specific Intent refers to a particular state of mind that seeks to accomplish the precise act that the law prohibits—for example, a specific intent to commit rape. Sometimes it means an intent to do something beyond that which is done, such as assault with intent to commit rape. The prosecution must show that the defendant purposely or knowingly committed the crime at issue.

General intent refers to the intent to do that which the law prohibits. It is not necessary for the prosecution to prove that the defendant intended the precise harm or the precise result that occurred. Thus, in most states, a defendant who kills a person with a gun while intoxicated, to the extent that the defendant is not aware of having a gun, will be guilty of second-degree murder. The law will infer that the defendant had a general intent to kill.

Criminal law dispenses with the intent requirement in many property-related crimes. Under Common Law the prosecution had to establish that the defendant intended to steal or destroy property. By 1900 many statutes eliminated the "intent-to-defraud" requirement for property crimes. Passing a bad check, obtaining property under False Pretenses, selling mortgaged property, and embezzling while holding public office no longer required criminal intent.

Criminal law and tort law share the concept of transferred intent. For example, if A shoots a gun at B, intending to strike B, but the bullet hits C, the intent to strike is transferred to the act of shooting C and supplies the necessary intent for either a criminal conviction or a civil tort action. Under the criminal doctrine of transferred intent, the intent is considered to follow the criminal act regardless of who turns out to be the victim. Under the tort doctrine of transferred intent, the defendant is liable for monetary damages to the unintended victim.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

intent n. mental desire and will to act in a particular way, including wishing not to participate. Intent is a crucial element in determining if certain acts were criminal. Occasionally a judge or jury may find that "there was no criminal intent." Example: lack of intent may reduce a charge of manslaughter to a finding of reckless homicide or other lesser crime.

Hermeneutical legal theory

by Jerzy Stelmach

I. Introduction

Hermeneutical legal theory is one of the oldest and at the same time most disputed of all the philosophies of interpretation.[1] Its beginnings can be traced back to Roman jurisprudence. Only in the 20th century did hermeneutical legal theory obtain a more specific status in the theory and philosophy of law. This was a consequence of at least two different factors. Firstly, in the 19th century a debate began over methodology in jurisprudence that has lasted until the present day, a debate in which representatives from all important movements and schools have taken part, with the law of nature and legal positivism leading the way. In the course of this debate hermeneutical legal theory proposed its own methodological approach to law (which served as an alternative and at the same time rival to other concepts), and at least in certain – phenomenological – variants also developed a different ontology of law. Secondly, in the 19th century F.E.D. Schleiermacher and Wilhelm Dilthey proposed the idea of creating a general philosophy of hermeneutics, which in essence was to be „a methodology of understanding” for all disciplines of the humanities, including jurisprudence. Ascribing such a function to hermeneutics resulted from its adoption of an anti-naturalist approach, an outlook which tends to be criticized today, which contrasted the methodology of the natural sciences, the aim of which is to clarify phenomena, with that of the humanities (hermeneutics), whose function is, as Dilthey emphasized, to understand manifestations of the human spirit (life) which find their expression in language.

In hermeneutics, fundamental importance is assigned to the concept of understanding, with which three other key terms in this philosophy of interpretation are directly linked: pre-understanding (which in

German literature is expressed as Vorurteil or Vorverständnis), explanation (interpretation) and application. According to Hans-Georg Gadamer „the hermeneutical problem” always embraces three inseparably inter-linked moments: understanding (subtilitas intelligendi), explanation (subtilitas explicandi) and application (subtilitas applicandi). Understanding is realized through the act of explanation (interpretation), the essence of which is application in practice. Ultimately, hermeneutical understanding may signify: either a certain specific kind of cognition in the humanistic sciences (at any rate, this is how the representatives of the methodological current in hermeneutics – Schleiermacher and Dilthey – conceived understanding), a form of the existence of an individual being – Dasein (the ontological interpretation of understanding we find in the major work of Martin Heidegger – Sein und Zeit), or both the former and the latter, i.e. both as a kind of knowing, and as a manifestation of the existence of an individual being (at any rate, this is how Gadamer and Paul Ricoeur defined understanding).

The final set of – preliminary – remarks, concerns the relationship between philosophical hermeneutics and legal hermeneutics. What seems to be a plausible view on this issue is that legal hermeneutics is only one example of the application of philosophical hermeneutics in general. On the other hand, the following question remains to be considered: is legal hermeneutics a „model” (paradigm) case of application, as Gadamer wanted it to be, or does legal hermeneutics tend to have its own „particular” character”, if only on account of the fact that every possible application of hermeneutical methods in the process of legal interpretation must take into account the restrictions arising from the existence of the provisions (norms/regulations) of binding law. Examining the status of legal hermeneutics in this way entails uprooting it from a philosophical context. We would have to either propose a „specifically legal form of hermeneutics ”, the assumptions of which would be – beyond the context of philosophical reflection – incomprehensible, or „practise” hermeneutics within the framework of other already existing theories of legal interpretation. In such a situation, however, the appropriate question would become: why use a new word to name an “old thing”?

II The methodological and ontological current in hermeneutical legal theory

The binding link between the earlier 19th century methodological current in philosophical hermeneutics developed by Schleiermacher and Dilthey, and its contemporary legal variants are the ideas of Friedrich Carl von Savigny which he presented in his work Juristische Methodenlehre. Savigny believed that the purpose of legal understanding was to interpret the text of a statute. By way of this process we can recreate (reconstruct) the idea-thinking of the legislator in the past. The lawyer has at his or her disposal four means of interpreting the text: grammatical, logical, historical and systematic. Savigny, just like Schleiermacher, was an advocate of a comparative understanding as well as a grammatical-historical conception of the act of interpretation. He likewise adopted the thesis that the act of hermeneutical cognition (interpretation) is objective in character. However, this represented a specific kind of objectivism built on historical and psychological foundations and on the unity between the actions of the interpreter and the will of the – historical – legislator (the actual author of the interpreted statute).

One important – and modern – attempt to apply Schleiermacher’s hermeneutics to the needs of the discipline of law was made by Helmut Coing. He set forth his proposals in an essay entitled Die juristischen Auslegungsmethoden und die Lehre der allgemeinen Hermeneutik, in which he examined the possibilities of applying the general canons of interpretation formulated by Schleiermacher for the purposes of interpreting and explaining the law. He discussed each canon in turn while making various additions and changes of his own: the canons of objectivity (autonomy of interpretation), unity, genetic interpretation, interpretation in terms of factual and substantive meaning, and, finally, the canon of comparison. This approach led Coing to the conclusion that all general canons of interpretation find their confirmation and application in jurisprudence, which ensures that interpretation and understanding of a legal text can be universally valid. Hermeneutics teaches us how to critically assess an interpretation of the law, while at the same time showing that the discipline of law as an interpretive

discipline uses not only exclusively deductive procedures, but also takes into account other approaches, including even topical ones. Within the framework of this „interpretative discipline” jurisprudence enjoys a specific status, for it is an example of an „applied interpretative discipline”. As a result, the legal method – both universal and objective in character – could constitute part of a – universal and objective - humanistic methodology, while legal hermeneutics would be just one example of the application of general humanistic hermeneutics.

In turn, the theory of legal hermeneutics developed by Emilio Betti and outlined in his work Allgemeine Auslegungslehre als Methodik der Geisteswissenschaften clearly has its roots in Dilthey’s thought. Like Dilthey and Coing, Betti understood hermeneutics to be a universally valid objective of the humanities. Betti linked cognitive objectivism with axiological objectivism. Legal hermeneutics cannot ultimately be separated from humanistic hermeneutics in general, which assumes an objective and universally valid (for all specific variants of hermeneutics) philosophy of understanding and the theory of interpretation.

Representatives of modern philosophy and legal theory will often advocate a methodological understanding of hermeneutics, especially the German current referred to as Methodenlehre. One can find numerous references to hermeneutics and precisely this methodologically understood approach in the views of such authors as Karl Larenz, Josef Esser, Karl Engisch, Ernst Forsthoff, Friedrich Müller and Martin Kriele. The hermeneutical interpretation of method in jurisprudence was intended mainly to serve as a counterbalance (alternative) to the positivist and analytical school, which prefers a systematic approach to thinking on the law, conceived as a category with an a priori-deductive character. As a consequence, the epistemology of the law presented in hermeneutics appeals to problem-type (topical) thinking, in which the law is conceived as a concrete „interpretative fact” or „interpretative activity”.

In the case of phenomenological philosophy, the central problem of hermeneutics – understanding – receives a new – ontological – qualification. Understanding is no longer conceived simply as a method of humanistic cognition as favoured by Schleiermacher and Dilthey, but is also, and perhaps above all, regarded as a form of the existence of a individual being, to which Edmund Husserl assigned the name Lebenswelt, and Heidegger – Dasein. In this way, hermeneutics becomes a form of ontological understanding. Hermeneutics is, however, also a method, because after all it has to be. Indeed, phenomenological hermeneutics abandons its claims to objectivism, but not to universalism. Hermeneutics is universal because the very problem of understanding is universal. For the act of understanding is a point of departure for all cognitive activity. Being a „science of first instance” hermeneutics is not only a kind of reflection furnished with the capacity of understanding, but is also a method for knowing precisely this kind of existence.

One very interesting attempt to apply the phenomenological philosophy of Husserl to the needs of jurisprudence was made by Adolph Reinach. Reinach believed that phenomenological analysis lies at the basis of both statements concerning the ontological essence of the law and statements with a methodological character. He set out his ideas in Zur Phänomenologie des Rechts. Die apriorischen Grundlagen des bürgerlichen Rechts. Thanks to our intuition we are able to know and understand the essence of the phenomenon of the law – its a priori structure. Positive law is in constant flux and development. This tendency to change and such contingency make it difficult or downright impossible to know the essence of the law a priori. We must thus go further and deeper, through positive laws to the “thing in itself”, to the nature of Man and his needs, desires, will and actions. The essence of these essential presentations is expressed in a priorisentences, which at the same time are also statements (axioms) of a phenomenologically oriented discipline of law. In this way, besides mathematics and pure natural science we are also dealing with a case of „pure – in a phenomenological sense – legal science”.

Another philosopher of law, Gerhart Husserl, author of the work Recht und Zeit (a collection of essays) also refers to Husserl’s phenomenological philosophy. He argues that the essence of legal cognition comes down to a reduction of legal ideas to the ontological level, at which the “law-thing” appears. This process of reduction is at the same time a process of actualising the law itself – its application in

concrete situations. For the act of reduction uncovers the basic (original) structure of every possible law – a structure which has an a priori character.

In turn, Werner Maihofer in his study Recht und Sein adopts a Heideggerian approach. Maihofer attempts to transfer Heidegger’s “fundamental ontology” to the terrain of philosophical-legal reflection. The hermeneutics of Dasein (an individual being capable of understanding itself) is intended to allow Dasein to construct an existential ontology of the law. Dasein possesses a certain structure and order, which is expressed likewise by the law.

Gadamer’s work in the philosophy of law is continued, finally, by Arthur Kaufmann, who provides an ontologically-oriented conception of legal hermeneutics. His views on this theme have been presented, among other places, in the works: Beiträge zur juristischen Hermeneutik and Rechtsphilosophie im Wandel. According to Kaufmann, the law emerges (is constituted) during the hermeneutical process of understanding. However, both the legislative act itself and the abstract idea of the law, as expressed in the concept of the just law, are only possibilities of the existence of a “concrete, historical law”. Kaufmann reckons that only through hermeneutics – the ontology of understanding – will it be possible to overcome the one-sidedness which has encumbered both natural-legal concepts and positivist concepts. The law is not a category in a cognitive objective sense. The law emerges through the process of understanding events – it comes into existence – it happens at a certain temporal (historical) moment. It is not a state (substance), but rather an act. Three degrees (stages) can be distinguished in the „actualisation of the law” (Rechtsverwirklichung).

The point of departure are abstract – extra-positive and extra-historical – legal principles (ideas). The second degree (stage) involves, in turn, the general – formal-positive – norms contained in a statute. The third stage involves the specific – material-positive – legal norms constituting the basis of decisions in actual legal cases. The establishment of a legal decision – the act of finding the legal solution – is achieved through an historical act of the understanding appealing directly to an original analogy contained in the concept of the law. For the act of understanding brings together subject and object, duty and being, norms and an actual state of affairs (Lebenssachverhalt). The law is the relationship which exists between a general principle or norm and an actual case. This relationship is ultimately grounded in an individual being – person. According to Kaufmann, such an analysis of the concept of law thus leads us to the concept of analogy and this in turn directs us to the concept of relationship and once again to the concept of the person. In this way the ontology of substance (characteristic of other philosophical-legal conceptions, in particular „classical” doctrines of the law of nature) is replaced by the ontology of understanding and by an existential ontology of the relationship.

III Controversies

Often, hermeneutics (both hermeneutics in general and legal hermeneutics) has been criticised, mainly by advocates of analytical philosophy (methodology). However, very often controversies between the adherents of hermeneutics and those of other currents have arisen out of the latter’s ignorance of the basic assumptions of hermeneutical philosophy and its different variants. It should be admitted, though, that the source of many of these controversies lies in hermeneutics itself. At least a number of such criticisms can be dealt with here individually.

1) It has been pointed out, and quite clearly fairly, that no single universally accepted definition of hermeneutics exists. As a result it is very difficult to set the boundaries between particular hermeneutical viewpoints (this concerns internal boundaries), as it is between those positions which may be hermeneutical and those which tend no longer to be so. As a result, the concept of “hermeneutics” has often been abused when used in describing and assessing different interpretative philosophies of the analytical, structuralist and argumentative types.

2) We are dealing with a similar situation in the case of other – for hermeneutical philosophy – basic concepts: understanding, pre-understanding or the hermeneutical circle. These terms are given fundamentally different interpretations in different hermeneutic conceptions.

3) Ultimately, we are not able to determine what is meant by the term hermeneutics: a form of cognition (a method), an ontology of understanding (a form of the existence of an individual being who possesses the ability of understanding), or perhaps both the former and the latter.

4) Accepting that understanding is also (besides representing a form of the existence of an individual being) a form of cognition, we are not in a position at the same time to determine what kind of cognition this is: direct or indirect.

5) Accepting that understanding is a form of direct-intuitive cognition, we then have a problem with determining what type of intuition we are ultimately dealing with: psychological, analytical or rather phenomenological.

6) The thesis of hermeneutical universalism is not entirely clear. The defence of this approach based on a division into naturalist and anti-naturalist methodologies adopted by Dilthey is quite weak, for the division itself gives rise to serious doubts. Moreover, it represents a particular type of universalism, because it is limited solely to the humanistic disciplines. It also appears risky to defend the phenomenological argument regarding the universalism of hermeneutics as a “the first science”. Defending ourselves against this argument in this case, we can claim that hermeneutics finds its main, if not exclusive, application precisely in the humanistic disciplines and not in the pure and natural sciences.

7) Ultimately, we ignore, not only how exactly hermeneutics can be applied usefully in legal interpretation, but also what the possible scope of its application is (it is at least clear that understanding – interpretation – must also be concerned with the regulations of the valid law). This problem is closely connected with other issues – the freedom of interpretation, whose limits are restricted, at least in the continental systems of law, by a prohibition on making interpretations contra legem.

IV Alternative solutions

Two such solutions are worth noting. They are interesting from our point of view because, on the one hand, they contain alternative proposals competing with one another with regard to hermeneutics, while on the other in some way they refer to hermeneutics or are able to reconcile with it.

The first approach of this type is the “alternative” analytical solution. This does not concern, however, horse-shoe analysis (i.e. analysis using logical and mathematical tools),[2] which was anti-hermeneutical in its conceptual structure, but rather soft-shoe analysis (i.e. analysis appealing to “softer”, mainly linguistic, tools), which provided the basis for seeking a compromise with hermeneutics. This approach has borne fruit in attempts by some to develop analytical hermeneutics. One source of inspiration for an analysis of this kind was the “second” philosophy of Ludwig Wittgenstein, who in his Philosophical Investigations treats interpretation as a specific kind of “game” played by the interpreter with the text. Such an attempt to develop analytical hermeneutics was also undertaken in jurisprudence by, among other people, Aulis Aarnio (Linguistic Philosophy and Legal Theory) and Ota Weinberger (Law, Institution, and Legal Politics: Fundamental Problems of Legal Theory and Social Philosophy).

The second of the alternatives is represented by theories of legal argumentation, which often promote solutions that have also been adopted in hermeneutics. We even find such an approach in legal topics, especially in its variant proposed by Theodor Viehweg (in his Topik und Jurisprudenz. Ein Beitrag zur rechtswissenschaftlichen Grundlagenforschung) Similarities can be seen between the concept of problem-thinking in law, and the concept of a concrete law resulting from the process of interpretation

and explanation. In turn, the roots of Robert Alexy’s procedural theory of legal discourse should be sought, as with most methodological variants of hermeneutics, in the philosophy of Immanuel Kant or in neo-Kantian philosophies. Finally, “communication theories” can be located at the border between hermeneutical and argumentative reflection. For some these are hermeneutical concepts, while for others – argumentative. This appears to pre-judge the aim of the analysis conducted at any given moment. It is enough, moreover, to examine closely the theories of Jürgen Habermas, or Karl-Otto Apel to recognise the earlier observation as fully appropriate.

What is HERMENEUTICS?

The science or art of construction and interpretation. By thephrase “legal hermeneutics” is understood the systematic body of rules which are recognized as applicable to the construction and interpretation of legal writings.

Exegesis (/ˌɛksəˈdʒiːsəs/; from the Greek ἐξήγησις from ἐξηγεῖσθαι 'to lead out') is a critical explanation or interpretation of a text,

Critical explanation or interpretation of a text, especially of scripture