Comparative Law

Professor Pedro A. Malavet

Class Notes Part Seven

(Last Updated: April 5, 2005)

VII. Legal Interpretation

This session marks the end of our Magical History Tour. Now we are in Europe, more or less, today.

For an excellent overview of the History of Western Civilization, go to Hyperhistory. This wonderful site gives you quick descriptions of important historical events as well as biographies of historical figures.

A. Hierarchy of Legal Sources, 937-953

I. Hierarchy of Legal Sources: Categories [Watson, p. 938]:

A. Primary: Objective or Positive law in statutory form or its non-judicial equivalent. Includes governmental decrees.

B. Subordinate: Custom. Seldom used. Does not refer to judicial opinions, even though latter called "legal or judicial custom".

C. Derivative, i.e., interpretative.

1) Interplay between judicial opinions and commentators. Importance of commentators:

a. They were historically more influential.

b. Courts will cite them easily for new legal concepts and for well-settled legal rules. Often, such citations may not include judicial opinions, even if some exist. The courts are comfortable citing just the commentaries.

c. Dance around the use of jurisprudence creates a haphazard, disorganized system. The scholars will be the ones to give it some form and who flesh out a lot of the opinions in the reports. Lines of cases often identified in treatises.

d. Note that the identity of the person is not that important. Regardless of who they are, judges, practitioners, professor, the commentators in the reports are performing a scholarly function.

2) Symbiosis: Commentator's opinions not effective until adopted by the Court, or the legislature. Commentators often influence the lasting effect of a judicial decision or series of decisions.

3) Binding effect of judicial decisions. Look in three areas: (1) In the same case, as to courts and parties involved; (2) Within the judiciary generally as "precedent"; and (3) As to the other branches of government (legislator or executive vs. the courts).

a. De jure, i.e., by law. There is a constitutional or statutory basis for this, e.g., most constitutional courts; and Spain 2-judgment rule and amparo in Mexico.

 

Art. 1 Swiss Civ. Code [CB-938]

The law regulates all matters to which the letter or the spirit of any of its provisions apply.

In the absence of an applicable legal provision, the judge pronounces in accordance with customary law and, in the absence of a custom, according to the rules that he would establish if he had to act as legislator.

He is guided by the solutions consecrated by juristic opinion and case law.

 

§ 12 Austrian Code [CB-942]

The decisions issued in individual cases and the judgments handed down in particular legal suits have never the force of law; they cannot be extended to other cases or to other persons.

b. De facto: What happens independently of the absence of law and of existing folklore. Requires careful study to see what the practice really is. Analyze series of objective factors used by our authors. Best listing at p. 951.

 

French de facto jurisprudence

1) Jurisprudence constant, i.e., a series of concordant decisions;

2) arrêt de principe, i.e., a judgment intended to establish principle, either because the matter was unsettled or because it reverses prior decisions;

3) arrêt d'espece, a case limited to its own facts.

D. General Principles of Law: Ranked ahead of case law (e.g., Art. 1 Spanish Civil Code). From within, implicit in the legal system. Implicit not rules of natural law or some other sort. This is generally derivative, i.e., applicable only in the absence of law or custom. Thus, the argument goes, there is no law-making, but rather gap-filling or interpretation of existing law. Scholars are the prime practitioners of this, because this is a scientific function, but compare page 955.

B. Interpretation Methodology (1), 975-989

II. Interpretation Methodology

A. WHY Practice Interpretation [976]

1) Meaning of a particular section has to be clarified.

2) Internal inconsistencies have to be resolved and gaps have to be filled.

3) New factual situations challenge the meaning of the unchanged text. e.g., Test-tube babies.

B. HOW?

1) Rules, generally statutory, found in substantive codes or procedural rules, if any.

 

Article 12, Italy

In interpreting the statute no other meaning can be attributed to it than that made clear by the actual significance of the words according to the connection between them, and by the intention of the legislature.

If a controversy cannot be decided by a precise provision, consideration is given to provisions that regulate similar cases or analogous matters; if the case still remains in doubt, it is decided according to general principles of the legal order of the State.

 

Article 3 Spanish Civil Code

(1) Norms shall be interpreted according to the proper meaning of their words, in relation to their context, to their historical and legislative antecedents, and to the social reality at the time they are to be applied, closely paying attention to their spirit and purpose.

(2) Equity must be considered in the application of norms, but court rulings can only be based exclusively thereon when the law expressly allows it.

 

2) Psychology and/or Folklore, e.g., French Revolutionary Thinking

3) Reality.

 

C. RULES of interpretation [978]. While rules on the binding effect of judicial interpretation are rare, rules of interpretation are quite common.

 

1) Plain meaning, contextual meaning, resolve any conflicts.

2) Gaps: filled by analogy, to specific rules not directly on point, and by general principles of law. The law may not be complete but it is a self-sufficient system.

3) Avoiding Injustice/Responding to Change

 

a. Evolutive method of interpretation [982] (1) requires that interpretative function not be simply literal or contextual. (2) Sociological, ideological, moral and economic factors considered; (3) Tempered by prudence because of the grave risk of arbitrariness. Look for ideas that have already penetrated the system of positive law. E.g., Jesuits case, French tort law.

b. Equity. Built-into substantive rules. General lack of equitable remedies.

c. General Principles of Law. (See sec. I).

C. Interpretation Methodology (2), 989-1004

In this section we studied how jurisprudence developed the meaning of articles of the Civil Code on tort liability. Note the different significance of decisions that go up to the Cassation court twice, as opposed to one that is decided only once.

Art. 1382

Any act of man, which causes damages to another, obliges the person at fault to repair it.

Art. 1383

Every person is liable for the damage which they cause not only by their own acts, but also by their negligence or lack of prudence.

Art. 1384

One is liable not only for the damages that one causes by our own acts, but also for those caused by the acts of persons for whom one is responsible, or the things under our care.

III. What Forces are producing change? [Glendon, 974]

A. Traditionally, the codes provided a rigid system that was predictable and stable. General Rules were used to avoid unjust results. But courts used these sparingly.

B. NOW we have rapidly-growing fields of law, which require much more aggressive interpretation, but which lack the simplicity and systematic approach of the codes. Hence the growing need for more active judiciary. E.g., growth in administrative law.

IV. Glossary

A. Doctrine vs. Legal Doctrine (doctrina legal). Doctrine in general refers to the work of commentators, scholars. Legal doctrine in the Spanish legal sense, means case law, in fact, jurisprudence constant.

B. Jurisprudence constant, i.e., a series of concordant decisions; (2) arrêt de principe, i.e., a judgment intended to establish principle, either because the matter was unsettled or because it reverses prior decisions; (3) arrêt d'espece, a case limited to its own facts.

C. NOTES. Distinguish footnote citations, part of the court decision as discussed by Merryman at pp. 945-947, and interpretative or analytical footnotes or notes added by editors of the reporters, discussed at p. 985.

D. Positive law, i.e., the ensemble of rules enforced by the coercive power of the state (e.g., property law), vs. Subjective law or rights, i.e., individual rights (e.g., my land). This is a problem because the word for "rights" and "law" is usually the same in the other systems we study.

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