Abstrakt
From the legislator's viewpoint, the best judge is one who operates, more or less, as a "subsumption machine". A judge who merely transforms abstract duties formulated in general legal rules into specific obligations borne by individually identified entities (natural and juristic persons).
The legislator can achieve this status by creating highly detailed and specific rules - casuistic norms. However, there is a drawback to this concept as even a negligible deviation renders such a norm inapplicable, if construed literally.
It follows that even casuistic legislation is not optimal in terms of the objectives that the legislator wants to achieve. This is why legal norms (comprised typically in laws - statutes) apply to cases of the same type and indefinite number (they are general), but nevertheless they are not formulated absolutely specifically (casuistically), but rather in, more or less, abstract terms.
It also follows from the above that, when applying the law, i.e. transforming abstract legal duties into specific obligations in an individual case, the judge must always be endowed with certain discretion which manifests precisely in the competence to carry out such transformation, and thus also interpret the law. One of the aims of this paper is to explain why we actually speak about interpretation and how interpretation differs from mere "reading".
Indeed, even in "simple cases", i.e. cases where there is no doubt that the purpose of the normative regulation conforms to the result of interpretation in an individual case, we speak about interpretation although it might seem that no interpretation is actually required, and it would suffice if the judge resorted to merely "reading" the wording of the legal norm. In contrast to such simple cases, those instances where the judge concludes that the result of interpretation of a legal norm in a specific case does not attain the desired purpose (telos) of the relevant legal norm, are denoted as "hard cases".
In terms of application of the law, such hard cases are characterised primarily by the fact that the judge does not specify and individualise the case in conformity with the general legal norm, but rather takes a different path. In such a case, interpretation means that the judge does not apply the general norm ad hoc, and rather forms the law by his/her decision.
Another objective of the paper is to explain the consequences of the above and point out the pro- and anti-systemic elements of interpretation of the law, enabling the judge to disapply a general legal norm ad hoc and replace it by his/her own decision in an individual case.