Clara non sunt interpretanda vs.

omnia sunt interpretanda:A never-ending controversy in

Polish legal theory?The First Genoa–Slavic Seminar on Legal Theory.

Tarello Institute for Legal Philosophy. Genoa, December 11–12, 2014.

The controversy:A theory of legal interpretation:

clarificative(Jerzy

Wróblewski)

derivational(Maciej

Zieliński)

The starting point of legal interpretation:

clara non sunt interpretanda

= the interpretation takes place

iff lex non clara est

omnia sunt interpretanda= every legal provision must be interpreted

The end of legal interpretation:

interpretatio cessat in claris= the lack of any reasonable and relevant

doubts

interpretatio cessat post

applicationem trium typorum

directionae

The geography of controversy:Polonia est omnis divisa in partes tres...

The clarificative theory of legal interpretation by Jerzy Wróblewski (1)

• interpretation sensu largissimo (SL) = the interpretation of any cultural object

• interpretation sensu largo (L) = the interpretation of texts (i.e. linguistic objects)

• interpretation sensu stricto (S) = the interpretation of texts, but only those whose meaning raises some doubts (in the context of law application)

The clarificative theory of legal interpretation by Jerzy Wróblewski (2)

• A distinction of the “situation of interpretation” and the “situation of isomorphy”

Interpretation: “the operative interpretation takes place if there is a doubt concerning the meaning of a legal norm which has to be applied in a concrete case of decision-making by a law-applying agency. This interpretation is thus a case-bound interpretation. Operative interpretation has to fix a doubtful meaning in a way sufficiently precise to lead to a decision in a concrete case” Isomorphy: “the text fits the case under consideration directly and unproblematically, as a glove to a hand”

The derivational theory of legal interpretation by Maciej Zieliński (1)

• 3 phases of legal interpretation:1. the arranging (validating) phase = identification of the

set of valid legal provisions/legal texts2. the phase of reconstruction = legal norms encoded by the

legislator in legal texts are decoded (interpreted) in the form of “norm-shaped expressions” (A + C + O/P + DC)

3. the phase of perception = the (univocal) meaning of the “norm-shaped expressions” is being established

• legal norms (i.e. the results of legal interpretation) are “strictly univocal expressions”, because they are formulated in an “extra-contextually univocal (unambiguous) language”

The derivational theory of legal interpretation by Maciej Zieliński (2)

• An example of the “norm-shaped expression”:

A man, who is not a mother, acting under influence of the labour and during it, in relation to the child, and who is not a person, which in necessary defence is repelling any direct and illegal attack against any social good or any personal good, and who is not an authorised person executing a legally valid death penalty, and who is not a soldier acting against the enemy during the war hostilities not in a way inconsistent with the laws of war, is ordered that, in any circumstances from the 1st of January 1970, she/he does not ki l l , and even does not attempt to kill neither under the influence of the strong emotion, nor on demand of the other man and under the influence of a compassion for her/him, a man. (Zieliński: 1972)

Polish Debate: Arguments

• EPISTEMOLOGICAL ARGUMENTS • ETHICAL ARGUMENTS• EMPIRICAL ARGUMENTS • HISTORICAL ARGUMENTS: THE ARGUMENT FROM ROMAN LAW and THE “ARGUMENT FROM ARCHITECTURE” (the “Pillar Argument”)• PRAGMATIC (PRAXEOLOGICAL) ARGUMENTS

and many others…

Arguments on “direct understanding”

• Whose “reasonable and relevant” doubts should we take into account at the pre-interpretive stage?

• What are the criteria for distinguishing the “situation of direct understanding” from the “situation of interpretation”?

• Is the “direct understanding” of legal texts possible at all?

ETHICAL Arguments• The clara non sunt interpretanda principle implies the possibility of interpretive manipulations by granting enormous discretionary power to the law-applying authorities.

• The omnia sunt interpretanda principle expands the power of the judges by increasing the possibility of the application of various interpretive techniques (especially extra-linguistic ones), which the citizens simply do not know.

• Two contexts: Unrechtsstaat and Rechtsstaat.

The „Pillar Argument”

A TENTATIVE SOLUTION (1)A theory of legal interpretation:

clarificative(Jerzy

Wróblewski)

derivational(Maciej

Zieliński)

The object of interpretation:

legal norm (norm formulation,

legal provision/text

or rule)

legal provisions, i.e. legal

texts

The aim of interpretation:

pragmatic clarity

(isomorphy)

semantic univocity

The result of interpretation:

the meaning of a norm (a pattern of the ought behaviour)

sufficiently determined for deciding a given

legal case

the legal norm, i.e. the univocal and “all-embracing”

expression (a norm of conduct)

A TENTATIVE SOLUTION (2)

AN UNFINISHED EXAMPLE OF THE LEGAL NORM: A man [that means: … ], who is not a mother [that means: … ], acting under influence of the labour and during it [that means: … ], in relation to the child [that means: … ], and who is not a person, which in necessary defence [that means: … ] is repelling [that means: … ] any direct and illegal attack [that means: … ] against any social good [that means: … ] or any personal good [that means: … ], and who is not an authorised person [that means: … ] executing [that means: … ] a legally valid [that means: … ] death penalty [that means: … ], and who is not a soldier [that means: … ] acting against the enemy [that means: … ] during the war hostilities [that means: … ] not in a way inconsistent with the laws of war [that means: … ], is ordered that [that means: … ], in any circumstances [that means: … ] from the 1st of January 1970, she/he does not kill [that means: … ], and even does not attempt to kill [that means: … ] neither under the influence of the strong emotion [that means: … ], nor on demand of the other man [that means: … ] and under the influence of a compassion for her/him [that means: … ], a man [that means: … ].

A TENTATIVE SOLUTION (3)

CRACOVIA – May 2015: http://philolep.pl/