Interpretation of Statutes, History of

From Max-EuP 2012

by Stefan Vogenauer

1. History of statutory interpretation and its importance for European Private Law

European private law, like any other modern law, is laid down in written legal texts. Each of these rules must be interpreted in order to decide whether it applies to a given set of facts. The interpretative problems arising with regard to European private law primarily concern the interpretation of EU law and the interpretation of international uniform law. They also include the interpretation of national law in areas that have been harmonized by the implementation of directives. By contrast, traditional public international law treaties (which are interpreted according to principles that have a certain overlap with those applied in the interpretation of contracts in private law) are hardly of relevance in European private law.

So far, there is no consensus on the rules and principles of interpretation of European private law. One of the most pressing tasks of legal scholarship is therefore to develop a European legal method. This must include, inter alia, common categories, rules and principles of interpretation, whilst taking into account national methods—which themselves are part of a long and common European tradition that left its mark on the interpretative methods of modern EU law and international uniform law.

Tapping this tradition can help to find methodological solutions that have a chance of being generally accepted today and in the future. It lets us see the existing commonalities of national legal methods. Many commonly accepted rules and maxims of statutory interpretation can be traced back to the Middle Ages and sometimes even to ancient Roman law. This includes features which had fallen into disuse at some stage of legal history but that are again of importance in EU law, like the notion of taking into account the effet utile of a provision. Further maxims which are prima facie innovative have at least structurally analogous precursors in legal history, eg the ‘doctrine of indirect effect’ (ie the interpretation of national law in conformity with EU law) or the frequently suggested maxim, according to which European consumer law (consumers and consumer protection law) must be interpreted in dubio pro consumatore.

In a similar vein, the consistent rejection of certain methodological features across legal systems is frequently the result of shared historical experiences that hold at least limited lessons for the future. Since the days of the Corpus Juris Civilis, for example, legislatures have often tried to ensure that the courts were not to decide cases that were not clearly covered by the wording of a legislative provision. They did so by enacting prohibitions on interpretation or, alternatively, obligations to refer such cases to the legislative authorities. The practicability of such models always proved to be limited in the day-to-day business of lawyers, and it would be unwise to ignore such experiences in establishing a European legal method.

The historical perspective not only assists in uncovering similarities but also explains the differences between legal systems and helps to assess them. Structural divergences in national legal methods (such as variations in the taxonomy and classification of interpretative rules) can be ascribed to varying national developments of a model that was commonly accepted in Europe up to the late 18th century. Specific domestic rules of methodology can also be explained by reference to particular historical circumstances. A well-known example is the traditional reluctance of English law to take into account parliamentary debates in the interpretation of statutes, or the French particularity of giving the Foreign Office exclusive interpretative competence in the construction of international treaties. A historical perspective helps to understand the origin of such rules in the context of the national methodological tradition and legal culture. Conversely, it also shows that many of these particularities do not necessarily make sense, or at least are not compelling, in the context of European (private) law.

Although the history of legal method is of great relevance to the interpretation of European private law, it is a relatively young branch of the discipline of legal history. While there have long been some detailed examinations of individual aspects of the topic, major studies that cover various periods of history across legal systems have only been undertaken in the past two decades, possibly inspired by the ongoing legal developments in Europe.

2. Interpretation of legal rules in Roman law

We do not know much about the interpretation of legal texts in Greek antiquity. By contrast, the numerous provisions on interpretation in the Corpus Juris Civilis give an indication as to how the matter was dealt with in ancient Roman law. The compilers of Justinian’s code slotted most of the relevant fragments into four titles of the codification, thereby mostly ignoring their provenance and their original context. The respective titles are C. 14,1 (De legibus et constitutionibus principum et edictis), D. 1,3 (De legibus senatusque consultis et longa consuetudine) and the two final titles of the Digest (D. 50,16 and 50,17). (De verborum significatione) contains altogether 246 fragments concerning the question of how to define certain legal terms and phrases—a catalogue of statutory definitions of concepts such as ‘dispute’, ‘parents’, ‘heirs’, ‘debtor’, ‘insolvent’ or ‘gross culpability’ that was to be used in the interpretation of statutes, contracts and wills. A host of more general interpretative maxims can be found in the title De diversis regulis iuris antiqui (D. 50,17) that consists of 211 regulae iuris. It is not clear what precise function these ‘rules’ had in Roman law, although it may be assumed that they served as a convenient shorthand for older legal doctrines and, as such, were relevant for legal practice.

Neither the classical jurists nor Justinian’s compilers developed a comprehensive theory of legal interpretation. They did not even make a strict distinction between the rules for the construction of wills, contracts (interpretation of contracts) and pieces of legislation. Various fragments of the Corpus Juris spelt out rules that contradicted each other. This was, for example, the case with two sources that proved to be extremely influential throughout European legal history. According to the lex Scire leges (D. 1,3, 17), ‘knowing statutes’ does not mean ‘to cling to their wording’. It is rather their reason and purpose that is decisive. By contrast, the lex Ille aut ille (D. 32,25,1), a fragment on the interpretation of wills, provided that in the case of a clearly and unambiguously worded legal text the intention of the author of the text was irrelevant: Cum in verbis nulla ambiguitas est, non debet admitti voluntatis quaestio.

Today we assume that many of the types of argument used in statutory interpretation in Roman law were influenced by ‘the theory of stasis’ of Greek rhetoric. A common stasis (‘point at issue’) corresponding to the two fragments just cited concerns the relationship between the written word and the intention or ‘will’ of the legislator or the legislative text, ie between verba and voluntas or scriptum and sententia.

In the centuries following the fall of the Roman Empire, the somewhat incomprehensive and unsystematic interpretative maxims from the Codex and the Digest were forgotten. Neither the early medieval folk laws nor the early canon lawyers of the 7th and the 9th centuries, such as Isidor of Seville and Hincmar of Reims, concerned themselves with statutory interpretation. Up to the turn of the millennium there were only a few canon law maxims for cases of obvious contradictions between certain legal rules.

3. Statutory interpretation in the Middle Ages and in early modern law

In the wake of the rediscovery of the Digest in the 11th century the regulae iuris assumed a pivotal role in legal scholarship that remained in place until the beginnings of the modern natural law movement. The glossators put D. 50,17 at the heart of academic teaching and produced a number of treatises concerning one or the other interpretative maxim whilst remaining faithful to the approach of the Roman lawyers in that they did not develop a comprehensive doctrine of interpretation. The working method of the glossators not only entailed a reception of the Digest’s rules and principles of statutory construction, but also generated new maxims of interpretation. From the 12th century onwards the sources that had been glossed received further marginal annotations, the so-called brocardica or generalia. These were short and succinct maxims with normative content which emerged from the pros and cons of academic discourse and summarized the content of a fragment of the Corpus Juris. Towards the end of the century the first collections of legal brocards were published. They reproduced the maxims in systematic or alphabetic order, although without resolving contradictions between them. Before long lawyers stopped distinguishing clearly between the regulae which were the authoritative texts and the brocardica which were mere commentaries on these texts. For centuries these compilations of brocards, which set out dozens of interpretative maxims, remained an essential part of legal literature and provided practitioners with useful armouries of arguments in litigation.

A further strand of the European interpretative tradition can be traced back to canon law. Like the Digest, two important books of the Corpus Juris Canonici, the Liber Extra (1234) and Liber Sextus (1298), closed with a title De regulis iuris. Most of the regulae spelt out therein had a counterpart in D. 50,17; roughly a fifth corresponded verbatim to a fragment in the Digest. Many of these were maxims of interpretation that were included in the widely used collections of legal brocards. Canon lawyers were particularly concerned with promoting the requirements of aequitas (equity) in interpreting statutes. Until the 16th century the Liber Sextus played an important role in the first year syllabus of many European law faculties, equalled only by the Institutes and the two concluding titles of the Digest.

From the 18th century onwards, the importance attached to the regulae and brocardica diminished. However, earlier legal writers had already begun to rationalize and systematize the heap of interpretative maxims handed down through the centuries. The legal commentators (legal scholarship) invented new classifications. From the mid-15th century onwards a number of textbook-style legal monographs with an exclusive focus on statutory interpretation were published in northern Italy. Although based on maxims of Roman law, this historical origin was no longer examined. Instead the basic categories of interpretation were developed and became more sophisticated, eg the distinction between ‘declaring’, ‘extensive’ and ‘restrictive interpretation’ (interpretatio declarativa, extensiva et restrictiva) which can be traced back to Bartolus.

The 16th century marked the beginning of the golden age of theories of interpretation. Questions of statutory construction were not only dealt with in specific treatises, but also at the outset of comprehensive overviews of the law and in special collections of arguments called ‘topics’. The latter had emerged in the 12th century and became increasingly popular—with their help, lawyers found the ‘place’ (topos, locus) of the argument they needed. Well-known types of argument which are still used today included the topoi ad absurdum, a simili, e contrario, ex materia, ex effectu and ex coniunctis; the best known topic of this age was written by the Dutch jurist Nicolaus Everardus. Twenty-eight editions were published between 1516 and 1604, and 131 topoi were analysed over nearly 800 pages. These were still based on the Roman sources but they were ordered in a more accessible way and were enriched with examples drawn from ancient literature, particularly from rhetoric.

4. Interpretation of statutes according to the schools of natural law and the law of reason

The writers of the schools of modern natural law and the law of reason still drew on the same sources. Hugo Grotius and Samuel von Pufendorf were primarily interested in the interpretation of contracts; according to their view, this exercise was mostly aimed at ascertaining the intention of the parties. Christian Thomasius adopted this position in the interpretation of statutes. He became the ancestor of an approach that would become prevalent in the 19th century and that would be called ‘intentionalist’, ‘originalist’ or ‘subjective’ by today’s lawyers. Even more importantly, Thomasius attempted to rationalize the unsystematic catalogues of arguments in the topics; he devised a new classification that distinguished between ‘grammatical’ and ‘logical’ aids to interpretation, the former being based on the wording of the statute and the latter being based on external factors, including the intentions of the legislature.

5. Methods of statutory interpretation in 19th century nation states

Up to the late 18th century similar rules and principles of statutory interpretation were applied all over Europe; even England was but a province of the ius commune with respect to statutory interpretation: at the beginning of the 19th century, there was not a single interpretative maxim that did not have a counterpart in the continental theory of construction.

The unity of the European doctrine of statutory interpretation only broke up in the wake of the major codifications. This was not necessarily owed to the scarce and fragmentary codification of particular rules of interpretation, such as §§ 46–49 of the Introduction to the Allgemeines Landrecht für die Preußischen Staaten (ALR), Arts 4 and 5 of the French Code civil and §§ 6–9 of the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB). It was rather a consequence of the nationalization of legal scholarship. Depending on the legal system, the interpretative maxims of Roman law were pushed back to a greater or lesser extent without ever being completely forgotten.

National legal methods developed their own taxonomies and theories of interpretation. For example, the distinction between interpretatio authentica, usualis et doctrinalis (developed by Bartolus and referring to the institutional framework of statutory interpretation and the competences that are attributed to the legislature, the judiciary and legal scholars, respectively) still prevails in France, although it does not perform a useful function in modern French law. In a similar vein, French doctrine has preserved the dichotomy of ‘grammatical’ and ‘logical’ interpretation that had been developed by the natural lawyers. In Germany this was slowly superseded by a categorization introduced by Friedrich Carl von Savigny that divided the aids to interpretation into four ‘elements’ (‘grammatical’, ‘historical’, ‘systematic’ and ‘logical’). German legal methodology has also embraced another fundamental distinction first suggested by Savigny, the rigid conceptual separation of ‘statutory interpretation’ and ‘further development of the law’ (a euphemism for judicial law-making). This distinction has never gained prominence in France. It is an endless source of irritation for English and German lawyers that the European Court of Justice (ECJ) has adopted the French terminology and claims to ‘interpret’ EU law even when it clearly engages in judicial law-making.

Despite the different terminologies and categorizations of national theories of interpretation, even the 19th and 20th centuries saw a number of common European trends in legal methodology. Until the late 18th century a fairly liberal approach to statutory interpretation had prevailed across the continent. The judiciary enjoyed the power to deviate from the literal meaning of statutes by way of ‘extensive’ or ‘restrictive’ interpretations. Towards the end of the century continental legal systems adopted a much more text-based legal method. This approach was perhaps not as rigid as has been assumed by later generations of scholars who gave it labels such as ‘exegetical school’ or ‘conceptual jurisprudence’. Nevertheless, it entailed a manifest readjustment of the weight accorded to different interpretative criteria and, thus, a clear break with the interpretative methods of the earlier ius commune. A similar, possibly even more radical, movement towards a ‘literal’ or ‘plain meaning rule’ occurred in English law with a certain time lag, ie in the first third of the 19th century. Similar parallels can be observed in the respective counter-movements towards more ‘liberal’, ‘purposive’ approaches to statutory interpretation, which are open towards evaluative and normative considerations, including arguments of fairness, reasonableness and equity. In continental Europe, this renewed emphasis on purposive reasoning and policy arguments emerged in the last quarter of the 19th century, whilst in England it only regained acceptance in the second half of the 20th century. As a result, there is today a fundamental unity in the interpretative practice throughout the European legal systems, despite the prevailing differences in classification and terminology displayed in national writings on statutory interpretation.

Literature

Wolfgang Fikentscher, Methoden des Rechts in vergleichender Darstellung, 5 vols (1975–1977); Peter Raisch, Juristische Methoden (1995); William D Popkin, Statutes in Court (1999); Jan Schröder, Recht als Wissenschaft (2001); Stefan Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent (2001); Jan Schröder (ed), Theorie der Interpretation vom Humanismus bis zur Romantik (2001); Jan Schröder, ‘Zur gesamteuropäischen Tradition der juristischen Methodenlehre’ in (2002) 2 Akademie-Journal—Magazin der Union der deutschen Akademien der Wissenschaften 37; Benoît Frydman, Le sens des lois (2005); Stefan Vogenauer, ‘Eine gemeineuropäische Methodenlehre des Rechts: Plädoyer und Programm’ (2005) 13 ZEuP 234.

Retrieved from Interpretation of Statutes, History of – Max-EuP 2012 on 02 October 2022.

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