Chapter V: The Interpretation of Law

— I. Notion. Divisions. - 1. The interpretation of law is the explanation of the sense contained in the law.

Taken strictly, it supposes a doubtful and obscure sense, and differs from declaration, which is the verbal exposition even of a clear law.

2. a) In respect of the author: authentic is that which is made by the legislator or by him to whom he has committed this, and it obliges at least those to whom it has been given and imposed. It is made not only by law, by the legislator, but also by way of sentence, by any competent tribunal, in the cases which it decides, and by way of rescript, in a particular matter, for example by a Sacred Roman Congregation.

Doctrinal is that which is made by experts.

Usual is that which is made by custom, concerning which, c. 29: "Custom is the best interpreter of laws."

b) In respect of the source from which light is sought, the mind or soul of the law is gathered either from the words or from other circumstances. The words must be approached first, and they must be taken according to the usual sense (not the philological sense) and the sense received in the court. If, however, the mind is clear from elsewhere (from circumstances, end, etc.), the words must be left for the mind. The reason of the law, unless the Prince himself has manifested it as adequate by an act sufficiently public, makes interpretation dangerous, especially since the law is contained not by the reason itself but by the words in which it was conceived (Cf. d'Annibale 1, 186). And because the reason of the law is not the law, unless the reasonable will of the legislator requires it, it is not to be transferred from one case to another on account of similarity. Yet that enlargement can be required by the correlation of cases: what is established concerning the bridegroom of itself holds concerning the bride; by juridical assimilation: thus canonical law equates election and postulation; by connection and virtual comprehension: the faculty of making a testament contains the faculty of leaving a legacy.

To avoid fallacies, these things today must be well attended to: the mind of the law must be known, not the mind of the man who is the legislator. Wherefore the mind of the law, or of the legislator as such, is not the mind or intention which the legislator manifests privately or after the law has been made, but not by a legislative act; nor the mind of the individuals who establish the law collegially; nor the mind of those who prepared or wrote the law. For example, when there is question of the Code of Canon Law, the mind of the legislator is the mind of the Pontiff promulgating it, not of the Commission by which it was laboriously produced. From this, however, aids can be brought for detecting the mind of the law. For example, the mind which the acts of the commission manifest can be presumed to be the same as the mind of the Pontiff who approved the work of the commission.

d) In respect of the kind of interpretation, one law is to be interpreted broadly, another strictly. Indeed no law can be taken so broadly that it is extended beyond both the natural and the juridical sense of the words; nor is it to be interpreted more strictly than the justice of the law and the propriety of the words bear, together with the reason of the law, which also must be preserved. But when, with the propriety of the words preserved, the words can be taken in a twofold use, the broader use produces a broad interpretation, the restricted use a strict interpretation. The word, for example, cleric can comprehend or exclude religious and bishops. In favorable matters, where there is place for broad interpretation, by the name cleric we shall understand religious and bishops also, but not in odious and onerous matters: these require strict interpretation. "Odious things ought to be restricted and favors enlarged ¹."

Which law is to be judged favorable, which odious, must first be drawn from the matter itself. Hence, c. 19: "Laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law ², are subject to strict interpretation." And more generally we shall say that laws which immediately impose a burden are to be interpreted strictly, but those which grant a faculty or power, broadly. It can easily happen that there is room for doubt. Thus c. 522, concerning the confessor whom religious women can approach, is interpreted broadly by some, strictly by others. Indeed a law is sometimes favorable in one part, odious in another. Then, if the favor and odium can be separated, there will be place for both interpretations at the same time. Thus the law (which, before the Code, was called the privilege of the canon) by which ecclesiastical persons are protected from personal injuries by a penal sanction is favorable insofar as it protects the persons, odious insofar as it inflicts penalties. Therefore we shall understand broadly the persons protected; strictly, the penalties inflicted. If the odious part cannot be separated from the favorable, the direct intention of the legislator is to be observed: for instance, a concession of a pension by which another's revenues are burdened, which is to be taken broadly. Cf. Palmieri, Op. th. I, tr. 3, n. 68.

But what the Prince has conceded, besides law, from liberality, is to be interpreted most broadly. For it is fitting and contributes to the common good that the Prince be esteemed as inclined to benign liberality.

e) By an allied but proper division of authentic interpretation, interpretation is distinguished as comprehensive, extensive, restrictive. The first renders the true sense of the law: private persons can make this alone; the second carries the law over to a case not previously comprehended, as when what had been established concerning those truly absolving an accomplice was transferred to those fictitiously absolving an accomplice; the third exempts from the law cases which the reasonable understanding of the law comprehended: as when, c. 542, the words "who have adhered to a non-Catholic sect" are said to be understood only of those who have receded from the Catholic faith and then given their name to a non-Catholic sect (Cf. response 7, October 16, 1919, of the Commission for the interpretation of the Code, A.A.S. 1919, t. 11, p. 477. Per. X, p. 101).

¹ Reg. 15 of Law in VI.

² Which law here is to be said to contain an exception from the law is not of very convenient explanation. But the matter belongs to jurists.

— Must an authentic interpretation be promulgated? From the very nature of the matter, an extensive or contractive interpretation must be intimated or promulgated in order to oblige. For it contains a true change of law. But if it has been comprehensive, yet dissipates a true obscurity, some, attending only to natural law, deny the necessity of promulgation, which others affirm. The former argue that here there is no question of a new law, but of an old one which, according to its true sense, had already been promulgated ¹. Others, on the contrary, say that a truly doubtful law is none, and therefore, when it is authentically explained, it needs a new promulgation. Thus Wernz, Ius Decret., I, n. 127. The positive law c. 17 § 2 agrees with this.

¹ Palm., Op. theol. I, tr. 3, n. 465.

— On epikeia. Epikeia is called that interpretation of law by which, contrary to even the clear words of the law, but according to the mind of the legislator, some case is prudently exempted from the disposition of the law. For since law disposes according to that which happens for the most part, in a particular case it can fail, indeed become harmful: which the legislator is reasonably judged not to have willed. Cf. Palmieri, Op. theol., I, tr. 3, n. 469-471.

There is, however, place for epikeia if, in a particular case:

a) The law, understood otherwise, would become inequitable or more grave than is just;

b) If, the usual interpretation being attended to, the legislator is prudently conjectured not to have wished to oblige in such a case. An example of the former cause will be if a heretic whom you are trying to lead to the faith offers you, from a proscribed book, a difficulty to be read and solved at once: it will be lawful to read the passage by epikeia. The latter cause occurs especially in lighter matters, for example in the observance of the rule of silence.

But in natural law, since it is placed in right reason, since it forbids things which are intrinsically illicit, and confirms an order indispensable for men even in a particular case, there is no place for epikeia properly so called. Cf. Suarez, De Legibus, L. 2, c. 16, n. 9 and 10.

— The interpretation of law, or explanation of the sense contained in the law, is not merely verbal declaration.

Authentic interpretation is made by competent authority, whether by law, or by sentence, or by rescript: at least those are obliged to whom the interpretation has been given and imposed.

Usual interpretation is made by custom.

Doctrinal interpretation is made by experts. These must first gather the mind of the legislator, as such, from the words of the law, then from other circumstances, but prudently from the reason of the law.

In respect of the kind of interpretation, it can be broad or strict. Laws which immediately grant a faculty or power are to be taken broadly; laws which immediately impose a burden, strictly; laws which contain a liberal benefit of the prince, most broadly.

Authentic interpretation is distinguished as comprehensive, according to the true sense of the law; extensive, which enlarges the law; restrictive, which diminishes the force of the law. These two latter are to be promulgated. It is disputed whether or not a comprehensive interpretation, if it explains a law objectively obscure, of itself needs promulgation.

Epikeia is an interpretation contrary to the words of the law but consonant with its mind, by which certain cases are prudently exempted, because otherwise the law would become inequitable or too severe. The reason of epikeia is not a defect of the law, but its nature, which can provide only for cases as they happen for the most part. In natural law there is no place for epikeia.