Abstract
An analytical-descriptive approach is chosen in this book in order to provide an insight into the main theoretical and philosophical approaches to the issue of legal interpretation, focusing on practical applications. First of all, the four major possible ways to look at the very concept of legal interpretation are introduced and analysed in greater detail.
Among other things, an opinion has been voiced in this respect that each of the points of view has its relevance and, in terms of theory and practice, also its firm place. The sensu largissimo interpretation, which explores the different factors affecting the nature of what will be found lawful in a particular case, is capable of verifying the axioms of Legal Philosophy which lie at the foundation of the different concepts of interpretation of law.
The sensu largo interpretation is associated primarily with a (legal-)hermeneutic view of the law and warns that laws is, in its own way, still in the origination phase, keeps changing, and that no interpretation process can therefore be approached statically and routinely. A pragmatic approach combining interpretation (sensu stricto) only with situations where a particular exegete encounters doubts regarding the meaning and purpose of a certain provision is considered, based on the analysis of its reflections in i. a.
European and Public International Law, a significant and needed component for ensuring the effectiveness of the bodies applying law, in particular on the higher levels. Nevertheless, in order to prevent its misuse and, at the same time, suppression of the dynamic dimension of law it seems desirable to give preference to a syncretic approach to legal interpretation in legal practice, which allows for the possibility of diversion from a well-established interpretation, but only in cases where it is justified and conclusively explained in the decision.
Finally, the interpretation - sensu strictissimo - can also be viewed as the lawmaker's instructions included in the law texts which are to regulate the exegete's approach to the interpretation thereof. Although these lawmaker's instructions themselves are subject to interpretation by the application bodies, they represent a vastly important guidance for understanding the relationships which exist between the legislator and the exegetes and they are often the key to understanding the ideology of application of law which is preferred in the given society, as illustrated, amongst others, by the example of the enlightenment codifications.
The regulation of the new Czech Civil Code as well as selected provisions of the Vienna Convention on the Law of Treaties prove that normative interpretation instructions make sense also from the point of view of domestic legal usage, whereby - as implied by the analysis performed - what both regulations have in common is the fact that their creators try to use them to partially modify the current - theoretical and practical - approaches to legal interpretation. In addition to this typology, the paper also discusses other possible views of legal interpretation.
Specifically, the author points out that some legal theorists abandon the traditional combination of interpretation with heuristic uncovering of the meaning of law texts in favour of its more comprehensive definition, where it is an integral part of the process of understanding as well as the application itself. The above then leads to the conclusion that there are possibly multiple opinions, existing next to each other, on what legal interpretation is or, more precisely, how should an exegete proceed when dealing with the question quid iuris? This proposition is analysed in greater detail in other parts of the paper.
Although there are opinions within Legal Theory that legal interpretation has no methodology and that it therefore cannot be standardized, most representatives of legal theory reject this radical view, which could be even described as "nihilistic" according to J. Wróblewski, because it would result in negation of any rationality in the interpretation processes.
Also, for this reason, there are proposals of various methods of even methodologies of legal interpretation. Although the different theories overlap in terms of the form of the different methods of interpretation (some even speak of their "establishment"), there are different opinions as to what significance should be attributed to which method or, more precisely, which method should take precedence in the case of their concurrence.
In this respect a typology of the possible categorization of the different theoretical approaches to the issue of legal interpretation, is introduced where one of the criteria proposed is whether or not the will of the legislator is ascertained (division of the theories of interpretation in to objective and subjective one), and also which central value should be pursued within legal interpretation (differentiating between static and dynamic approaches to legal interpretation). In the thesis a more comprehensive view of the issue of interpretation and application is also offered, namely in the form of a presentation of the three basic ideologies of law application.
The analysis of the individual theoretical concepts of legal interpretation makes it possible to conclude that the background of each concept always includes a certain philosophical vision of the optimal law, which is to be found or even created in the process of the interpretation and application of the law. In other words, every comprehensive philosophy of law uses a certain theory of legal interpretation which - if properly applied - is to lead to the form of law supported by this philosophy.
This proposition is documented by an example of an analysis of the three basic philosophies of legal interpretation which were developed throughout the 20th century within our cultural realm. Specific attention is paid to the analytical approach which was characterized by the belief that it is possible to eliminate or, as the case may be, at least minimize the ambiguities of the natural language or even to create an artificial language (a better one compared to the natural language).
Extensively discussed is the background, the basic streams and key structures of human knowledge developed by hermeneutics which is traditionally considered "art of interpretation." Great attention is also paid to the most recent of the aforesaid streams, the argumentative (discursive) approach, to both its procedural branch and the rhetorical-topical approach. In spite of the different ideological backgrounds of the different approaches as well as the partially different opinions on how the question quid iuris? should be answered in a particular case, the paper results in the pronunciation of a syncretic opinion that individual philosophical approaches are imaginary participants of the same dialog about how to reduce the irrationality of the accepted legal solutions.
The solution offered changes depending on which concept of the optimal law is chosen or, more precisely, how realistically the options of legislation are evaluated, including the very essence of the process of understanding (in particular, the share of subjective elements in the decision). In fact, it is considered desirable that the traditional academic presentation of the basic methods of interpretation be expanded to include also the critical and comparative explanation of the different theories (philosophies) of interpretation of law and the interaction thereof.
Emphasis should also be placed on distinguishing other phenomena that are encountered in the context of the application of law, and which may affect the final form of the rule being applied. It will enable not only the metatheoretical discussions to better grasp the first-degree rules used both for linguistic interpretation on the one hand and for textual criticism, discretion and the completion of law on the other, which will ultimately improve the debate over the second-level interpretation rules regulating clashes between individual interpretative conclusions.