Chapter IX. On the Interpretation of Law and Epikeia

Interpretation of law is the explanation of the sense intended by the legislator, when this seems more obscure or ambiguous, and it is distinguished in many ways; for:

1st. By reason of the subject or cause, one kind is authentic, another usual, and another doctrinal, according as it is made either by the superior himself or by others who participate in his power, or by custom, or by learned men.

2nd. By reason of mode, it is either strict or broad. The former rigorously preserves the propriety of the words, as, for example, if by the word son there is understood only a generated person; the latter admits a more benign sense, as if the same word son is extended to an adopted person.

3rd. By reason of mode again, it is either comprehensive or extensive. The former takes the words as they sound, and explains them either broadly or strictly, as was just said; but the latter attaches another sense to the words beyond the natural one, for example, if under the name of father even a grandfather is understood, and under the name of death, perpetual prison.

But epikeia is the exception of a case on account of circumstances from which it is judged, certainly or at least probably, that the legislator did not wish that case to be comprehended under the law. Hence it differs from interpretation, because it does not treat of explaining an obscure law, but of not applying a law otherwise clear to some case in particular. - Cf. St. Thomas, 1-2, q. 96, art. 6, and 2-2, q. 120, art. 1. - St. Alphonsus, n. 201; and Hom. Ap. n. 77.

I say, 1st. § 1. The legislator, or his successor, and he to whom the power of interpreting has been committed by them, authentically interprets laws.

§ 2. An authentic interpretation, exhibited by way of law, has the same force as the law itself; and if it only declares the words of the law, certain in themselves, it does not need promulgation and has force backward; if it restricts or extends the law or explains a doubtful law, it is not retroactive and must be promulgated.

§ 3. But an interpretation given by way of a judicial sentence or of a rescript in a particular matter does not have the force of law and binds only the persons and affects the things for which it was given (Can. 17).

I say, 2nd. Usual interpretation likewise has the force of law, and approaches authentic interpretation, provided the custom is legitimate, public, and universal. The reason is that then the consent of the legislator is had; whence custom is said to be the best interpreter of laws.

I say, 3rd. Doctrinal interpretation does not have the force of law, since it does not proceed from legislative power; nevertheless it has more or less weight according to the number and authority of the Doctors, and especially according to their reasons. That doctrinal interpretation may be done rightly, the following rules are to be attended to.

1st. Ecclesiastical laws are to be understood according to the proper signification of the words considered in text and context; if this has remained doubtful and obscure, recourse is to be had to parallel places of the Code, if there are any, to the end and circumstances of the law, and to the mind of the legislator (Can. 18).

2nd. Laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law, are subject to strict interpretation (Can. 19).

3rd. If an express prescription of law, whether general or particular, is lacking concerning a certain matter, the norm is to be taken, unless it concerns applying penalties, from laws made in similar matters; from general principles of right observed with canonical equity; from the style and practice of the Roman Curia; from the common and constant sentence of the doctors (Can. 20). But a favorable law demands an ample interpretation. - Cf. St. Alphonsus, n. 200. - Scav. n. 260. - Kenrick, n. 32.

Question 1. Must extension be made from case to case when the same adequate reason occurs?

Response. Affirmatively, and the reason is taken from that worn principle: Where the reason is the same, there the same disposition of the law runs. But the same adequate reason runs when, unless the law were extended, the legislator could be accused of injustice or imprudence; and therefore the case not expressed ought rather to be said to be comprehended in the law, than the law to be extended to it. But this is had in the following: 1st, in correlatives, as bridegroom and bride; 2nd, in those equated, as eggs and milk-foods in relation to the law of abstinence; 3rd, in connected things, as are Deacon and Subdeacon; 4th, in contained things, as are the power of making a testament and the power of making legacies. - Cf. St. Alphonsus, ibid. - Scav. n. 261.

But a negative response must be given if it concerns penalties; thus Can. 2219, § 3: It is not licit to extend a penalty from person to person or from case to case, although an equal, indeed graver, reason is present, yet saving the prescription of Can. 2231, according to which equally culpable participants are struck with the same penalty, although only one is named.

Question 2. What things are subject to strict interpretation?

Response. Laws which establish a penalty or restrict the free exercise of rights, or contain an exception from the law; in doubt, rescripts which refer to lawsuits, or injure rights acquired by others, or are opposed to a law for the advantage of private persons, or finally were obtained for obtaining an ecclesiastical benefice, receive strict interpretation. Cf. Can. 19, 50.