Objective law is always written law which, in specialist literature, is often designated as ius scriptum. Studies devoted to the history of law regard ius scriptum as part of the genuine history of law. Everything which belonged to the period of ius non scriptum is part of the prehistory of law. Laws establish written rules for conduct or for decision. This distinction is necessary since laws are rules for decision for implementers of law, but rules for conduct for those who follow or use law. This article deals with laws as written rules for decision. The General Provisions of the Constitution of the Republic of Estonia establish that laws shall be published in the prescribed manner, and only published laws shall have obligatory force (§ 3).*1 Rules for decision do not, however, offer automatic solutions for cases nor ultimate truths. The making of a legal decision requires the interpretation of law.
R. von Jhering has pointed out that the legislator should think as a philosopher and speak as a peasant.*2 It is clear that a legal decision as the result of summarization is directly dependent on the clarity and accuracy of the formulation of the rule for decision. Accuracy can be achieved by an in-depth knowledge of the language in which the rules for decision are formulated. Nevertheless, this alone does not suffice. The so-called legal language significantly differs from everyday speech or from any other specialist language. Specialist language must be more exact and not vaguer than general language. Inaccuracies of terminology in other languages must be eliminated and not copied. Every subject area can and should be designated by terms which most accurately reflect its essence. Through the ages, different legal cultures have developed relevant terminology to designate law in its broad meaning as exactly as possible. Thus, the issue of specialist language does not concern a separate language but rather language accuracy.
In continental European legal culture, jurisprudence, a whole field of law, deals with the “meaning” of law. K. Larenz notes that the theory of methods in jurisprudence deals with the language of normative clauses (rules of law). Jurisprudence is the science of rules of law, but not the science which prescribes rules. Jurisprudence is a system of beliefs about the law in force which it aims to describe.*3 For this, jurisprudence does not employ quantitative methods, but interpretation. Since the purpose of jurisprudence is to endeavour to explain objective law or the law in force, a definite set of methods must be chosen to achieve this goal. Interpretation serves as one of the principal methods. However, it would be more correct to say that, on the one hand, interpretation as a science involves a systematic explanation of a set of methods and techniques and, on the other hand, interpretation involves an action carried out on the basis of consistency and rules in obtaining knowledge of the meaning and purpose of objective law.
Jurisprudence of the 20th century which is characterised as jurisprudence of value requires operating with an open scale of values which necessarily precludes that a certain doctrine may be viewed as taboo. Also, this means that there are no universal principles to determine how to interpret law. At the same time, there are a number of relatively definite standards for interpretation which are essential in the process of rational interpretation. These standards fall into two large groups: standards which establish the priority of a legal source and standards which determine the interpretation of sources of law. Operation with an open scale of values and consideration of standards for interpretation allow one to reach the so-called correct solution. However, this does not mean that there is always only one possibility for a correct interpretation. Upon summarization, that is, the comparison of actual circumstances to the body of abstract facts contained in a law, the values characteristic of a given time and space should be determined and appraised. Like opinions, values also change in time and space.
Continental European legal culture recognises several common priority standards for legal sources.*4 The text of law has priority over any other source of law, regardless of whether the source is authoritative or substantive. The following standards are used to determine the text-internal priority of law: lex superior derogat legi inferiori (a law higher in the hierarchy repeals the lower one); lex posterior derogat legi priori (a later law repeals a prior one) lex specialis derogat legi generali (a special law repeals a general law); lex posterior generalis non derogat legi priori speciali (a later general law does not repeal a prior special law).
A. Aarnio is of the opinion that if there is no written law, the custom of a country takes precedence over other sources of law. However, such a situation arises only if there are gaps in the statutory legal system. If there is a formal law in force but its content is unclear, the custom of the country does not take precedence in interpretation. In such case, the custom of the country has the same status as other possible sources of law.*5
Principles which determine the priority of sources of law are also topical in the Estonian legal system. In general, the Estonian legal system belongs to the continental European legal system in which statutory laws occupy the top of the so-called law pyramid. Under § 65 of the Constitution of the Republic of Estonia, the Riigikogu, the parliament of Estonia, in which legislative power is vested passes laws. Under § 105, laws may be created in the Estonian legal system by way of referendum. In terms of legal effect, the rules of the Constitution take precedence since § 102 of the Constitution provides a strict requirement that laws must be passed in accordance with the Constitution.
To pass a law, the legislators come together, consider a bill and count votes. These activities of the legislator constitute an external aspect of the process of passing laws which only determines whether or not a bill will become part of the objective law. Further, the summariser can and must pose questions to which the answers either confirm the normativity of the legal system or not. These questions are, on the one hand, connected with the principles of natural law and, on the other, with the requirements of jurisprudence. Based on the latter, the issue of whether the content of a passed law complies with the conditions and requirements prescribed in the Constitution for an effective piece of legislation of general application is most relevant.*6 At the same time, it is clear that the establishment of normativity or its absence does not resolve the main issue concerning the actual content and purpose of a law.
Before the application of abstract rules of law contained in a law to actual circumstances, the applier of law should understand the content and purpose of the rules of law. Comprehension of the content and purpose of a law is a process which follows definite rules. It is generally known that this process is not easy and requires the knowledge of a specialist. For example, a law may be lacking in accuracy, the choice of terms may be wrong or it may be too general.
According to A. F. Thibaut, the system of rules necessary for interpretation is called hermeneutica iuris, or legal hermeneutics. In consideration of the legal theory of methods, interpretation constitutes its most relevant part. A lawyer wants to understand law to meet the demands of the actual social reality.*7 In other words, interpretation is an action by which the interpreter comes to understand a problematic legal text. Without this, it is impossible to make decisions which are in conformity with law.
The Estonian legal system contains laws which explicitly make clear the need to interpret the law. For example, § 2 of the General Principles of the Civil Code Act (GPCCA)*8 is entitled “Interpretation of law”. Sections 3 and 4 of that Act concern interpretation: § 3 provides for the relation between general and special provisions, whereas § 4 deals with the problem of analogy between a specific law and the law in general. Before discussing the content of these provisions and their later amendments concerning interpretation, the so-called catalogue of interpretation will be briefly examined.
The classical catalogue of interpretation criteria was established by F. C. von Savigny who, in characterising the essence of interpretation, stated that the purpose of interpretation is to put oneself in the shoes of the legislator and artificially repeat his or her actions.*9 To achieve these interpretation goals, it is necessary to analyse the grammatical, logical, historical and systematic point of departure of a law.*10 Today, there are several other arguments used in legal interpretation. It is even possible to claim that any circumstance justifying a certain choice of interpretation may be regarded as an interpretation argument.*11
Thus, it is possible to choose methods of interpretation. However, the range of choices is not arbitrary. Although, in legal terms, the problem is which possible interpretation to choose in a particular case, in law, the starting point in interpretation (at least in the continental European legal system) is the text of law. Assume that a text of law is ambiguous and it is not initially known which interpretation is in conformity with the law. Each possible interpretation may be regarded as a linguistically possible interpretation. In specialist literature, the determination of semantic possibilities of interpretation is sometimes known as an orienting analysis.*12 An orienting analysis focuses on different possibilities of interpretation. Naturally, such analysis does not provide sufficient information for practice. At the same time, this stage in the interpretation process is indispensable in order to commence interpretation of substance. Further, this stage may be characterised as the selection of possible meanings. Interpretation in this case is a particular choice which is to be justified. In the interpretation of a law, the interpretation arguments based on the sources of law and the law itself, as well as the interpretation rules are fixed. Interpretation which ignores the sources of law or the interpretation rules cannot be regarded as legal interpretation.
The basis for legal interpretation is the text. Specialist literature refers to the circular structure*13 of comprehension: the interpretation of a text of law does not involve the understanding of single words, but the meaning of words as placed in a certain word order and the meaningful relationship between complete sentences.*14 The circular structure of comprehension does not involve tautology. Circular movement does not bring the interpreter back to the starting point but helps to raise comprehension to a new qualitative level. The circular structure of comprehension allows one to return to previously read words in the text or its parts. At the start of interpretation, the interpreter has certain expectations concerning the meaning of the text which resemble a hypothesis which may be proved by each subsequent step of successful interpretation. Thus, this comprehension process is not linear but alternating.*15 Subject to associations, location or other factors, the meaning of a linguistic expression (designation, word) may either be normative or factual. To grasp the accurate meaning of a designation, one should know the actual role of a particular word or phrase in language. Further, the interpreter should be able to understand the meaning of the word or phrase in the legal context. Jurisprudence is involved in understanding linguistic means and finding normative meanings which, in the main, occurs through interpretation. The interpreter acts as a “supplier”, analysing different possible meanings and constantly asking which is the correct meaning in the context. The interpreter relies, first and foremost, on the text of law, on the words contained therein and the relations between different parts of the text. The interpreter reaches a decision which is not imposed logically but is based on a reasoned choice between different possible meanings. Therefore, it would be erroneous to think that texts of law require interpretation only if they are particularly unclear or contradictory. On the contrary, all texts of law should, in principle, be interpreted, and the need for interpretation does not reflect their deficiency. Interpretation will remain necessary as long as laws are formulated as texts in any language.*16
No law can be created in such perfect form that it would instantly provide answers to different cases arising therefrom. Therefore, those who make legal decisions must abide by the law (ensure stability), allowing for a certain flexibility (interpretation). According to A. Aarnio, provisions of law are like pieces of elastic: the interpreter stretches them depending on the circumstances. If a law cannot be stretched any further, it is time to resolve the issue by passing a new law.*17
Furthermore, it is necessary to understand that language is an evolving phenomenon. Thus, a certain term may be completely unambiguous today and no one would even dream of contesting its meaning, while tomorrow the term may become ambiguous by acquisition of additional meanings. More frequently, though, texts of law contain inaccuracies, such as unclear or semantically vague designations. A designation is unclear if its meaning is unspecified. In the case of semantic vagueness, the interpreter is unable to understand the full scope of meaning of a term or phrase. Ambiguity also creates problems in that, although different meanings of a term or phrase may be known, it is not clear which meaning applies in the given context. In general, ambiguity may be classified as lexical or syntactic. In the former case, the contextual meaning of an expression should be taken into account, whereas in the latter, the syntactic structure of the sentence should be analysed.
As mentioned previously, the following discusses examples from the Estonian legal system. Section 2 of the GPCCA provides the following principles of interpretation applicable within a section: under subsection (1), the interpretation of a law is to be based on the common meanings of words as used in the law unless special meanings of the words are directly used in the law; under subsection (2), if a word has several common meanings, the meaning which is most compatible with the intent of the law is to be used; and under subsection (3), a provision of a law is to be interpreted together with other provisions of the law, following the intent of the law. Thus, the legislator has clearly given priority to linguistic interpretation. This means that at that time the legislator was of the opinion that without linguistic interpretation it is not possible to understand the intent and purpose of the GPCCA. Such approach seems fully justified. Section 3 of this Act, entitled “General and special provisions”, provides that if one provision of law specifies another or establishes an exception for other provisions, the specified provision shall be considered a general provision, and the specifying provision, a special provision. In this case, the special provision will apply. Here the principle lex specialis derogat legi generali is used, although in this case, at the lower level of provisions. Subsection 4 (1) of the GPCCA provides that in the absence of a provision regulating a legal relationship, a provision which regulates relationships close to that relationship applies. Further, in the absence of such provision, the general intent of the law is to be followed. Under subsection 4 (2) of the GPCCA, in the absence of a law regulating a legal relationship, the general intent of the law will be followed. Without analysing the questionable wording itself (i.e. how is it possible that a rule of law regulates a legal relationship when a legal relationship should arise on the basis of a rule of law), it can be concluded that the legislator has made certain rules of legal interpretation binding on those who implement the law. Inevitably the question arises why the legislator has only chosen some principles from a large range of possible interpretation methods and made them generally binding. Further, whether interpretation principles should be established in the general provisions of a law is also an issue. In the case of interpretation, the hermeneutica iuris, the systematic body of rules for legal construction and interpretation, is involved, which the implementers of law should be well familiar with.*18
Recent proposals for amendment of the GPCCA included an erroneous amendment. The Commercial Code and Related Implementation Acts Amendment Act contained the following amendment of § 2 of the GPCCA: subsection (1) was to be added to § 1 worded as follows, “(1) A provision of a law shall, first and foremost, be interpreted together with other provisions of the law, following the intent of the law and intention of the legislator, but not the grammatical meaning of words.” This amending Act was approved by the Riigikogu, but the President did not proclaim it.
In the Estonian legal system, laws enter into force only after the President of the Republic has proclaimed them. Under clause 78 6) of the Constitution of the Republic of Estonia which provides for the powers of the President of the Republic, the President may proclaim laws pursuant to §§ 105 and 107 of the Constitution, and sign instruments of ratification. The President may fail to proclaim a law if he or she finds that it is not in accordance with the Constitution. In the case of the above-mentioned amendment to the GPCCA, the President found it unconstitutional.
The classical catalogue of interpretation criteria includes linguistic interpretation which is the first point of departure for any person who uses, follows or implements the law. In other words, the text of law is the object of interpretation. Under §§ 1 and 3 of the Constitution, Estonia is an independent and sovereign democratic republic where the powers of state shall be exercised solely pursuant to the Constitution and the laws which are in conformity therewith. Under § 3, laws shall be published in the prescribed manner, and only published laws shall have obligatory force.
It is difficult to understand the logic of those who proposed the above-mentioned amendment to the GPCCA. As emphasised earlier, any interpretation of a law should first be based on its text. Only after that can other ways and methods of interpretation be considered. The proponents of the amendment wanted to start interpretation with a systematic interpretation and continue with an objective teleological interpretation.
The Riigikogu reviewed the Commercial Code and Related Implementation Acts Amendment Act again and resolved to amend the GPCCA as follows: in § 2, subsection (3) is considered to be subsection (1); and former subsections (1) and (2) are considered to be subsections (2) and (3), respectively.*19 The President of the Republic proclaimed the Act by Resolution No. 723 of 30 May 1996. Thus, the legislator still gave priority to systematic interpretation.
In connection with proposals for the above-mentioned amendment of the GPCCA, several articles were published in the press. One of them which presents D. Liiv’s opinion under the title “Who makes laws in Estonia”*20 is discussed below. D. Liiv who is the Chairman of the Riigikogu Legal Committee considered the President of the Republic Resolution No. 717 of 8 May 1996 not to proclaim the Commercial Code and Related Implementation Acts Amendment Act passed by the Riigikogu on 18 April 1996 to be odd and controversial. According to D. Liiv, the reason for the failure to proclaim the Act was primarily the fear of high-ranking legal advisers to the President that their subjective opinion (which is the basis for the power, prosperity and corruption of officials) was no longer to be the primary source of interpretation of laws in the Estonian state, but, according to European traditions, the intention of the legislator expressed in the text of law and in the course of preparation of the law. However, D. Liiv did not provide a solution to the problem of how the intention of the legislator is to be grasped if the interpreter does not read the text of law. In the opinion of the author of this article, the interpreter cannot understand the intention of the legislator without relying on the text of law. Although comprehension of the intention of the legislator does not solely depend on linguistic interpretation, the text of law is the most relevant source of interpretation in continental Europe. At the same time, in addition to the text of law, the drafter’s explanatory notes and all drafting documents are also considered in explaining the intent of the law according to generally recognised traditions in Europe. Both the drafter’s explanatory notes and other drafting documents are written sources which should be analysed together with the text of law.
Further, also problematic is D. Liiv’s opinion that the legislator should have the right to prescribe rules for the interpretation of laws. Although in continental European legal culture, laws may prescribe certain interpretation methods, they never involve legal hermeneutics as a whole. This is impossible since the legal theory of methods cannot be codified. Legal theory of methods belongs to the sphere of jurisprudence.
It should be emphasised that legal language is not a specific sub-language, but part of the general language with its specific specialist vocabulary or terminology. It is essential that the meanings of words of general language may, in specialist vocabularies, be narrowed, specified or metaphorised, but not broadened or changed. Thus, legal language basically means the language of legal texts. The means of such language are the neutral vocabulary of general language, legal terminology, terminology of regulated areas and the grammar of contemporary written language.*21
In Estonia, a major problem is that the language of texts of law inevitably influences the language of secondary legislation. The language of Estonian laws should be analysed by competent experts. The key role in the improvement of the language of law is undoubtedly played by the legislator, lawyers and implementers of the law. To facilitate the interpretation of texts of law, laws should be drafted in plain language which is free from clichés. If the interpreter can rely on a text created according to these principles, there is reason to believe that the decision made in the course of interpretation will be in conformity with the law, and therefore a just decision.
In conclusion, the text of law has a dual nature in a continental legal system. First, it is the primary source of understanding the intent of the law. Second, it establishes definite limits to interpretation.*22 This view does not correspond to the opinion held by the Chairman of the Riigikogu Legal Committee that the priority of the text of law is confined to the extraction of a particular subsection of a law from the general context of the law and from the legal system as a whole. The priority of the text of law allows one to use all the possibilities of the hermeneutica iuris.
1 Riigi Teataja 1992, 26, 349.
2 G. Heindl, H. Schambeck. Prozesse sind ein Silberschweiss oder Juristen Brevier. Wien, 1979, p. 189.
3 K . Larenz. Methodenlehre der Rechtswissenschaft. 2. Aufl., Heidelberg, 1991, p. 83.
4 A. Aarnio. Laintulkinnan teoria. Yleisen oikeustieteen oppikirja. Juva, 1988, p. 253.
5 ibid., p. 255.
6 R. Narits. Õiguse entsüklopeedia. (Encyclopaedia of Law.) Tallinn, 1995, pp. 31-32. Section (§139) of the Constitution of the Republic of Estonia contains the term “legislation of general application” which is essential to the Estonian legal system. In specialist literature, the terms “normative legislation”, “law” and “legislation containing rules of law” are used more frequently. German specialist literature particularly makes use of the term “law” in this context. See A. Kaufmann, W. Hassemer. Einführung in die Rechtsphilosophie und Rechtstheorie der Gegenwart. 5. Aufl., Heidelberg, p. 223. In Estonian legal literature, the opinion that legislation of general application is general legislation which contains rules of law which, in their turn, create legal rights and duties impersonally is common. See K. Merusk. Kehtiv õigus ja õigusakti teooria põhiküsimusi. (Law in Force and Main Issues of the Theory of Legislation.) Second edition, pp. 6-10.
7 R. Dubischar. Vorstudium zur Rechtswissenschaft. Mainz, 1974, p. 99.
8 Riigi Teataja, 1994, 53, 889; 89, 1516; 1995, 26-28, 355; 49, 749; 87, 1540; 1996, 40, 773.
9 C. F. von Savigny. System des heutigen Römischen Rechts I. Berlin, 1840, p. 213.
10 R. Zippelius. Juristische Methodenlehre. 5. Aufl., München, 1990, p. 39.
11 A. Aarnio provides the following classification of interpretation arguments: 1. semantic arguments; 2. syntactic or grammatical arguments; 3. legal arguments which comprise law, systematisation principles, customs of the country, purpose of the legislator and the law, judicial judgments, arguments of comparative law, legal-historical arguments and jurisprudence; 4. teleological arguments (actual arguments); 5. values and attitudes; 6. analogy and contrario-arguments. A. Aarnio, pp. 217-218.
12 A. Aarnio, ibid., p. 193.
13 K. Larenz. Methodenlehre der Rechtswissenschaft. 2. Aufl., Heidelberg, 1991, pp. 94-99.
14 E. Betti. Allgemeine Auslegungslehre der Geistewissenschaften, 1967, p. 140.
15 Such manner of thinking in the comprehension process is not common to the exact sciences. However, in jurisprudence, it is the only way to understand ratio legis. Further, it must be borne in mind that the interpreter should have prior knowledge of text hermeneutics. According to K. Larenz, one who has never dealt with legal issues may have difficulties in understanding texts of law or the motivation behind judicial judgments. See K. Larenz, ibid., p. 96.
16 K. Larenz, ibid., p. 93.
17 A. Aarnio, ibid., p. 19.
18 R. Narits. Tõlgendamine: teadus või seadus? (Interpretation: science or law?) Juridica, 9, 1994, p. 230.
19 Riigi Teataja I 1996, 40, 773.
20 D. Liiv. Kes on Eestis seadusandja.(Who Makes Law in Estonia.) Eesti Päevaleht, No. 108 (282), 13 May 1996.
21 K. Kerge. Õiguskeel, tema vahendid ja väljavaated.(Language of Law, Means and Perspectives.) Õiguskeel. Bulletin of the Government Legal Terminology Committee, 4, 1995, p. 6.
22 See E. Zeller. Auslegung von Gesetz und Vertrag, 1989, p. 154.