Application and Interpretation of Legal Norms

Posted on Dec 27, 2024 in Law & Jurisprudence

Unit 3: The Application and Interpretation of Legal Norms

1. The Application of Rules: Interpretation and Integration

Legal rules, issued through the system of sources, have the function of regulating social life. The meaning and purpose of legal norms are not exhausted by their formulation; they are satisfied when the rules apply to channel patterns emerging as the behavior of society members and to resolve conflicts in coexistence.

But to achieve this result, we need a set of operations that tend to project the norm onto the social reality that it must submit to. These operations are those that we will look at in this lesson. The result is what is called the application of the rules.

A. The Application of Rules

The implementation process of the D. Logframes obeys, and more specifically, it can reduce the use of a syllogism (typical philosophical reasoning).

This syllogism has the following schedule:

S (actually of course) -> C (result) if there is indeed such a situation, some consistency is to be applied.

E.g., whoever kills another is under a sentence of rigorous imprisonment.

H = S (made equal to assumed fact) someone turns 18, is the same as the assumption of fact (the standard).

H -> C (done as a result) therefore, if the assumption is made that the fact that the same will apply the same result.

The major premise of the syllogism is the norm, which has two elements: the assumption made.

The minor premise refers to the case. It involves checking if the event or specific event (H) is described on the assumption of fact (S). If it is equal to the alleged de facto standard.

The conclusion would preach that the case (H) is subject to the rule and therefore must apply the legal consequence (C).

This form of reasoning is characteristic of continental legal culture and different from the Anglo-Saxon, and assumes that what the judge has to do is simply apply the legal syllogism.

Now we are faced with two difficulties:

Legal rules are written in an abstract way, with a very general nature, and the social reality to be applied is very specific.
The second difficulty is that sometimes reality is complex. It is necessary to understand the case, see what the legally relevant elements are, and, moreover, we must select the rules that apply to that case.

B. Interpretation of Rules

Meaning: Set of tasks designed to ascertain and determine the meaning of legal rules applicable to the case.

The interpretation is projected on the signs that reflect the standards to determine their meaning. Such signs are always words; it is not surprising that legal interpretation is reminiscent of linguistic and literary analysis.

Need for interpretation: All normative statements need to be interpreted; it is the indispensable means to understand it and, as it has been understood, to apply it.

It is true that there is an old Roman aphorism that says “In claris non fit interpretatio” – in the clear, interpretation is not required. The aforementioned aphorism warns against excessive interpretation, by which they can try to twist involved.

But it is true that, as a minimum, we must determine the literal meaning of the proposition and what the purpose of the rule is, so we know exactly the scope of the provisions.

Rules on interpretation: Article 3.1 of the Civil Code (CC)

“The rules will be interpreted as the proper meaning of his words, in relation to the context, historical and legislative background, and social reality of the time that must be applied with strong orientation to the spirit and purpose of those.”

These are the criteria that an interpreter has to rely on. These criteria can be said to be applicable not only to civil order but to the entire law, including the Constitution (EC).

The most common view of this item is:

It does not traditionally curtail the freedom of the interpreter but is simply backed by admonitory value (limited to stating all the elements of interpretation that had been argued before the reform of the preliminary title).
It is an impossible standard, explaining its violation. No sentence may be revoked for failure to implement these criteria.

We can find other articles relating to the interpretation of provisions in other laws. One that really has an important significance is the one contained in Article 5.1 of the Organic Law of the Judiciary (LOPJ).

It states that judges and courts “apply the laws and regulations according to the precepts and constitutional principles as interpreted by them resulting from the decisions of the Constitutional Court (TC) in all types of processes.”

The TC has a monopoly on the constitutional interpretation of the Constitution; it is a first-class organization in the legal system.

If the court says that a rule should be interpreted in a particular way, anyone can make a different interpretation. We can say that this interpretation is mandatory.

Speaking of the interpretation of the rules, there are two sections that we cannot forget: the classes and the criteria of legal interpretation in Spanish. Here:

Classes of Interpretation

Three criteria:

1. According to the person making the interpretation of the rule:

Authentic Interpretation: What makes the author of the legal rule. It can be:
- In the literal sense or strict: The same rule that makes the interpretation (e.g., Parliament interprets the law).
- In an improper or broad sense: When a rule is interpreted by a body that has issued less than the standard (e.g., VAT law interpreted by the regulations that develop it, emanated by a lower court).
Unusual or Judicial Interpretation: It is what courts do, and can sometimes be legal doctrine (it can become law) (e.g., in the appeals of the Supreme Court (TS)).
Interpretation of Prudence: That being carried out by experts in law in the exercise of their profession (e.g., what a lawyer makes).
Doctrinal Interpretation: Is what makes the “doctrine” of law. The authors of books or manuals of law, which analyze the rules from a technical point of view, therefore the opinion of noted authors.

2. According to the result you are looking for:

Subjectivist Interpretation: One that is seeking the will of the author of the law, “voluntas legislatoris,” through the ascertainment of the historical conditions that gave rise to the text.
Objectivist Interpretation: Seeks “voluntas legis,” the will of the law, tends to interpret what the current standard objectified says.

3. Depending on the outcome:

Declarative Interpretation: As objective as possible, matches the “ratio legis,” agrees strictly to what the law says.
Broad Interpretation: When the interpretation goes beyond the “ratio legis.” It involves the application of the rule to cases that were not raised.
Strict Interpretation: It is one that limits the application of the standard as much as possible. The interpretation is less comprehensive than the “ratio legis.”

Sometimes the legislature itself imposes some sort of interpretation:

Remember the aphorism: “odious restringenda sunt; farorabilia amplianda” (What is hideous is to be restricted, extend favorable).

Criteria for Interpretation

Article 3.1 of the Civil Code: “The rules are interpreted,”

as the proper meaning of his words,
in connection with the context,
the historical background and legislative,
and the social reality of time that must be applied,
with strong orientation to the spirit and purpose of those.

You have to add a 6th criterion:

This article, in its 5 propositions, provides 5 criteria of interpretation, to which we must add a sixth criterion:

1. Literal Approach: We must start from the letter of the text -> problem: there are words that have multiple meanings and, moreover, their meaning can change over time. Sometimes a word has a technical meaning different from the ordinary:

Common Sense: That the word is normally in ordinary usage.
Technical Sense: Typically more accurate, that science is attributed to that term (e.g., payment repeat: it is a legal term which means not doing that again, but doing the opposite).

Besides being the starting point, the literal or textual operates as a limit and extent of interpretation: the interpretation cannot conclude by saying that the law says the opposite of what it specifically says.

2. Systematic Approach: Refers to the system; it is a system of precepts. This approach may be understood in two senses:

Literary and Philological: The words cannot be read in isolation; they have to be interpreted in relation to the sentence where they are.
Legal: Usually, the rules are grouped into sets that link the institution being regulated. This means that within the existing legal provisions, they are related and must be interpreted in relation to other standards.

Sometimes there are items that make explicit references to other articles. And sometimes, simply, if the context or systematic position is not clear, you cannot understand the rule.

Hierarchy plays an important role in the interpretation, as the degree of freedom of the interpreter is greater the higher the rank of the provision interpreted, and more limited in the provisions below.

These interconnections that arise between the rules sometimes make a provision, section, or provision without formally changing experience, come to have an entirely different meaning (e.g., marriage).

3. The Historical and Legislative Background: According to the historical approach, to understand some provisions, which may be old, you must go to the historical situation in which they were issued to better clarify their meaning and scope.

It is sometimes necessary to resort to the same interpretation by the author of the law in the debate in parliament on this law or, for example, sources of inspiration (the regulation of another country) or comparative law background closer as, for example, the preamble of the Act or the preamble.

4. The Social Reality of the Time That Must Be Applied:

Sociological Approach: Sometimes, to interpret a rule, it is necessary to look more to the social circumstances to which it must apply than to the will that the legislature had in enacting the rule.

The interpreter may use elements other than the intention of the drafters of the rule, especially when they are old standards. It is increasing the degree of freedom of the interpreter since its sensitivity is responsible for determining in each case what the meaning of this social reality is.

To avoid the collapse of the principles of supremacy of law and legal certainty, the greatest caution is advised when using this argument in court. This is the last resort because it cannot be interpreted to be contrary to the express wording of the rule.

5. Following Essentially the Spirit and Purpose of Those:

Teleological Approach: Sticking to the purpose of the rule means finding the reason, the sense of it. That is, what are the interests that the rule seeks to prevail over others.

These are the 5 criteria laid down in Article 3.1 of the Civil Code, but you have to add a sixth criterion that, although it is said, cannot be excluded:

6. The Logical Approach: Involves applying intelligence to the interpretation. Subject to the rules of reasoning to reach an intelligible result.

It is not mentioned in the Civil Code but can save considerable gaps that are implicit in the words of context.

It should be understood as the need to interpret rules, apply legal reasoning, i.e., legal logic. Our legal culture has produced some rhetorical arguments that lawyers usually use expressions too long ago and named in Latin.

We cite two types of arguments:

Restrictive Argument: The best-known argument is called “a contrario,” which means that anything not clearly included in the text of the rule must be considered excluded.
Extended Argument:
- The argument “a simile,” which means that a situation similar to a case governed by the rule must extend this, by similarity or analogy.
- The argument “a fortiori,” which means there are cases included verbatim in the rule applied, but if you see what is included, with greater reason, it must submit to it.
- The argument “ad absurdum” serves to highlight possible interpretations of a rule that would lead to an absurd situation.

C. Integration of Rules

Integrate supply or save it (solve) a material defect that is normative (legal rules) we have.

The defect that we can meet more easily is the problem of legal gaps (gaps in the legislation). When we find a rule applicable.

The loopholes can be given for three reasons:

The legislature, in drafting the factual assumption of the legal standard for negligence, has not settled this case.
At the time of writing the rule, the existence of that case was unforeseeable.
I have a case covered in a contradictory (antonym).

The elements of integration are:

a. Heterointegration (go to another legal system): Integration by a different order. It assumes a legal system to solve these problems, go to another system to find the solution. This is the system called supplemental rights.

It is typical of underdeveloped legal systems (in Europe, the average age looked to Roman law as residual).

In our law, civil law acts as supplementary standards or different parts of the law. Article 4.3 of the Civil Code: “The provisions of this Code shall be applied as extra on matters governed by other laws.”

b. Self-Integration takes three forms:

The logical expansion of D. positive, we can draw an analogy.
Applying the general principles of law (Article 1 solution of the Civil Code).
The integration of nature by going to factors not strictly legal position close to natural law (feelings and values of society or the norms of justice).

The analogy as a form of self-integration:

It consists of applying a case that is not covered directly in a rule of law, regulation has been issued for a different case, but we believe similar.

It can be of two forms:

Analogy Legis: Refers to the law. It takes as a premise a particular rule of law and assumes that we have a case that is very similar to the assumption made in that rule and has not been included. We enforce this rule by analogy. It’s like an omission of the legislature.
Analogy Iuris: Refers to the right. It has a different nuance because it regulates a case not covered by the criterion or the legal principle that can induce a rule or set of rules, although the assumption is not like the fact that we have to solve the case. We deduce a general principle of the existing rules and solve a case not covered by applying this criterion.

The analogy in the Civil Code, Article 4.1: “It shall carry the analogy of the rules when they did not include a specific course, but regulate other similar between identity before noticeable reason.”

It seems that the analogy refers to legislative, regulatory implementation of a case to another case. The doctrine says that the analogy applies iuris through the general principles of law as a source of law.

The analogy has three limitations:

Article 4.2 of the Civil Code: “The criminal laws, the exceptional and temporary level will not apply to situations or moments other than those expressly included in them.”

The analogy does not apply when we are before prohibition laws or penalties.

Nor can it apply to the rules that limit the ability of the person or fundamental rights.

Neither exceptional legal norms, i.e., one that is issued in case of emergency.

Equity: The ethical challenge of attending and procedure (the last) of self-integration. It can be understood in two ways:

Traditionally, the word “aequitas” meant or how it applied to act aimed at moderating the excessively harsh consequences which cause the automatic application of written law. Equity was justice of the case.
The modern word equity is used to designate a legal form of action that addresses a specific case disengaged from legal norms.

In this sense, it means the Arbitration Act:

The arbitration law is what makes an expert in law applying legal rules. Arbitration fairness is that a person would not apply any rules of law but according to his knowledge and belief.

The Civil Code said in Article 3.2: “Equity will be weighed in applying the rules. While court decisions may only rely solely on it when the law expressly permits.”

The traditional application of equity is valid in our legal system because one must consider the rules forever, but from the second sense, it says explicitly that he can only act this way when the law gives specific authorization to do so.

2. The Effectiveness of Legal Norms

As we know, all laws and regulations are intended to be an effective rule of social conduct. But what produced the legal effects? Legal norms have a triple effectiveness:

Rise to the legal duty of compliance or enforcement.
If that duty is not performed, there is a reaction of the legal system involved in an efficiency penalty.
When doing what is commanded by the standard, the effect is the transformation of reality (constitutive effectiveness of the rules).

In this study, we will effectively triple the first two effects:

1. Legal Duty to Comply: 1st is the consequence of a rule -> requirement to observe a certain behavior. The effectiveness of legal regulation cannot be left to the will of citizens. There are circumstances which render impossible the performance of a duty (impediments): ignorance, error, opt (opt).

Ignorance: Ignorance about the existence and scope of the standard. Traditionally, it was thought that it was not a valid excuse for not applying the rule since people should know the rules published, and therefore if you know them, it is not fulfilling its responsibility.

Article 6.1 of the Civil Code: “Ignorance of the law does not excuse compliance.”

Today is not an excuse for compliance with the rules, but the criterion that justifies this article is an objective criterion: they simply that standards be met, and this effectiveness cannot be left to the will of individuals (not all = voluntary standards do not comply, would be nothing).

Error: Ignore the exact content (not full) to the legal consequences of an act. There is no error in fact; know or have bad information.

Traditionally, it is considered that there was no excuse, like ignorance, did not prevent compliance. He had no legal significance because it was thought that there was a duty to know. Today, this approach has been pushed because it is considered to know all is impossible, but it is considered that the error of law may have legal implications.

E.g., if I think I have to pay and payment must believe me, I can claim the overpayment. If I buy a solar inedible ignoring it, I cannot build, but if I ask for the annulment of the contract.

Article 6.1 of the Civil Code: “A mistake of law will produce only those effects determined by law.”

It is recognized that there is transcendence but narrowly; it must meet two requirements:

That a legal rule permits.
The error has to be excusable, that is, not the fault of the person concerned (added by TS).

We say that there are exceptions (if they have an obligation to know the law, there is no excuse):

Public officials, so when a public service that the Administration does not need to punish the officer and is accountable to the citizen.

Specifically, officials within the judiciary, the people who administer justice, not only have liability if they cause evil to the particular, but may even be criminal, especially in case of breach of trust, which is the resolution with the knowledge that a decision is unfair.

This duty of knowledge of the rules is what is related to the beginning “iura novit curia” (the court knows the law). The courts have an obligation to know the rules. Judges must resolve under the facts alleged and proved by the parties but are not bound by the legal arguments that have been made. May apply different standards that have not been claimed if they consider them relevant.

Voluntary Exclusion of Applicable Law

This is the case that the person concerned waives the application of the law, Article 6.2. of the Civil Code, “The opt-out of applicable law and the renunciation of the rights recognized therein, will be valid only when not contrary to the interest or public order or harm to others.”

If individuals are under the law but ignore it, it does not make sense to exclude the application of the rules if they wish. It is permitted under certain limits.

The reference made to applicable law must be understood that the law is internal, not the D. International.

Talk of the opt-out, and this exclusion represents a declaration of intent may be unilateral or bilateral.

To waive a law, it should be a slide or imperative.

Peremptory Norms: Those that dictate obedience necessary to impose their (criminal law, for example).
Rules Provisions: Governing relations between subjects, but if you do not want the protection of private autonomy, they can replace the legal rules by a different regulation, more adapted to the circumstances. Normally the materials contracts and obligations are fundamental laws operative because it is the will of the parties.

The Civil Code speaks of two forms of complaint:

a. Report to the rights already acquired: for example, when it causes injury to an individual, and this is entitled to compensation, this can be waived.

b. Waiver of application of the law which could give rights, for example, when making a purchase may waive the right to replace me that purchase should it become corrupted (in the contract signing waives the right to replace it). When an individual waives the application of the rules, it is necessary to replace regulation, as it cannot be left unregulated potential conflicts that go. E.g., you can renounce the territorial jurisdiction by submitting to another jurisdiction, but which must be said.

2. Sanctions Efficiency Standards

It is the reaction of the system in case of breach of the rule. To talk of sanctions, we must first talk about illegality.

What is suspended is wrongful conduct, i.e., conduct that is contrary to what the rules say to do.

Well, the breach of an obligation or duty.
Or for breach of a prohibition.

The penalty is the result of the infringement, but sanctions are not always equal. There are four types of sanctions and have a certain heterogeneity.

A. Punitive sanctions are those that involve the imposition of a penalty (deprivation of a legal right or a right imposed on the violator of the law), such as the death penalty, sentence of imprisonment, a fine, etc.

B. Penalties REMEDY: pursuing the restoration of legal status before the infringement. So what we want is to eliminate the damage that has occurred and, failing that, to pay compensation.

C. Sanctions enforcement rise: it necessarily involves applying the rule says breached, either by the offender or under compulsion of judicial or administrative authority at their expense.

D. General sanction of invalidity: deprive the delict of values and effects that would normally have to produce. This sanction of nullity is the general rule in civil matters.

Article 6.3 of the Civil Code: “Acts contrary to peremptory norms are prohibited and void in them unless other provision in case of violation.”

The sanction shall take effect inefficiency “ex tunc” (from scratch), which is the opposite of “ex nunc” (now). The inefficiency of the event will be from the date of their disposal, so we can say that this implies that no act can not produce any effect.

E.g., nullity of marriage: to declare that even if the marriage has the appearance of being a marriage, it never existed, has no effect.

Divorce has been a marriage, but from this time (ex nunc) ceases to be.

There are exceptions when either of the parties acted in good faith, relying on the appearance of legality of the act, or by the existence of other interests worthy of protection if you can keep some of the effects (e.g., in a putative marriage any offspring it can not be ignored, producing an effect to them).

We stated that such punishment is the sanction of nullity general civil matters, but also we can establish a different effect for any offense; well, this happens, for example, in the case of fraud law.

In the last paragraph of Article 6.4 of the Civil Code: “The acts performed under a standard text of achieving a result prohibited by law or contrary to it, shall be deemed executed in fraud of the law and should not impede the proper implementation of the rule which had tried to circumvent.”

E.g., FRAUD LAW: arranged marriage, pretend to get married, but it is a false marriage to gain citizenship.

Fraud law would be a behavior that apparently served a standard (formally met) and aims to avoid compliance with other rules.

A standard that is used to disguise the violation of the prohibitory rule of law is called coverage. We performed a legal business that did not really want to disguise a delict.

What is required by Article 6.4 to be a circumvention of the law?

The first thing it says is that it has to be an act performed under a standard text, which means that apparently is doing a lawful act that conforms to the assumption made formally under law.
Second is an act that must be pursued to achieve a result prohibited by law.
The result is the proper application of the rule which had sought to evade. That is, the law enforcement disappointed.

It is not necessary intent or awareness to circumvent the law by the Supreme Court because the purpose of the doctrine of fraud is to defend the law’s compliance and not punishment for evil intent. The reference to the application of the rule which has tried to avoid just means that when fraud is committed, it is because he is trying to jump that application.

3. Effective Time and Space Standards

Article 2 of the Civil Code

A. The Temporary Duration

1. Entry into force:

Article 2.1 of the Civil Code: “The laws take effect 20 days after its complete publication in the Official Gazette as if they do not have anything else.”

These 20 days is a period called “vacatio legis,” whose purpose is the time that the recipients know the law, not only the recipients but those who must implement it as judges and magistrates.

When the law is very long and is published by parties when they just released the last part is when you start counting 20 days. The maximum period of 20 days is the rule, but even that can be established by law shall enter into force on the day of publication.

2. Loss of force:

At first, it is of indefinite duration. There are only some interim rules, and the end of its period of application cease to have force and have an effect, as is the case of legal decrees.

Except in the case of temporary rules, rules are in place while there is no abrogation.

In this respect, Article 2.2 of the Civil Code says: “The laws are repealed only by later ones. The repeal will be the extent expressly provided and will last forever all that the new law on the same subject is incompatible with the previous one. For the simple repeal of a law does not recover the effect it has repealed.”

The repeal is the removal of a rule was issued a new, affecting the same subject but changing the regulation. Repealing the rule must be of the same or higher than the last.

Types of repeal:

According to the extension of matter repealed:

Total repeal: is one in which the new law deprives them of all the previous effects.
Partial repeal: that means that the new law leaves in place the previous somewhere.

According to a way to make this repeal:

Explicit and concrete in this case, the legislature declares that a law is repealed earlier and also makes a list of materials that have undergone the repeal.
Specific and generic in this case, the legislature expresses its will to repeal a law but does not list items repealed.
Tacit: when a legislator does not show the will to repeal a rule, but that will be deducted from the contents of the new law because it gives a new regulation to the same subject.

3. Non-retroactivity principle and its exceptions:

The principle of legal certainty requires, besides the necessary publicity of the rules, the rules are not retrospective. The retroactivity means that a standard published in a given time concern situations which were governed by other rules before changing the effects that this rule had produced.

Article 2.3 of the Civil Code says: “Laws have no retroactive effect if it should decide otherwise.”

The absolute retroactivity of the rules would mean the absence of legal certainty because none would know if, in the future, a legal activity may be illegal. Absolute retroactivity can lead us to cases of injustice.

Retroactivity is only justified by the need to adapt to rapid changes in society and avoid the perpetuation in time consequences of a previous regulation that are considered obsolete, but is a threat to legal certainty. We cannot accept that a person who has acted lawfully at a given time may be punished in the future because a rule imposing a sanction after acting in accordance with current legislation.

Article 9.3 of the Constitution says: “There shall be non-retroactivity of punitive provisions are not favorable or restrictive of individual rights.”

Article 25 of the Constitution adds: “Nobody can be punished or sentenced for actions or omissions which when committed did not constitute a crime, misdemeanor, or administrative offense under the laws then in force.”

A direct consequence is that none of them can impose a higher penalty under a new law, though the act is done becomes known after the entry into force of the new law. Fewer still be convicted of an act that was legal when performed.

As to the rules restricting individual rights, it is true that all rules affect individual rights, but it is understood that what the Constitution says is that we must defend the fundamental rights which may not be affected by a change in legislation.

According to the Civil Code, retroactivity can be implemented into law. This retroactivity can be expressed in a clear or tacit deduction from the content of the law. But in case of doubt, it has to opt for non-retroactivity because the general rule is that the rules are not retroactive.

The conflicts that may arise from the temporary application of the rules are governed by what is called the transitional law, which are rules that express criteria for resolving these conflicts temporary interest. These rules determine when to understand the new rules retroactive and when not.

Usually, they have their own transition system: when it is scheduled to have a conflict, transitional arrangements have to solve these problems. If a law does not provide a conflict, we must remember that our Civil Code can be applied right, and it has 13 Temporary Provisions which, though designed for the Civil Code, can be applied to other cases.

B. The Spatial Effect

The legal rules ordinarily have a limited spatial area of validity, and its limitation in the field coincides with the territorial jurisdiction which has the body that created them. However, this may be exceptions because, in determining the scope of application of a rule, there are two criteria:

1. Criterion of Territoriality: The laws apply to all facts that are produced in its territory and all persons (nationals and foreigners) who are in that territory at all. The standards that follow this approach are the criminal, the public safety …

2. Personality Criterion: Assuming that the laws will apply to citizens of Spanish nationality where they are, as, for example, civil status or capacity of persons.

The usual criterion is that of territoriality, but sometimes personality applies. In case of conflicting rules and territorial effect, the arrangement that solves these conflicts is private international law, which is to solve them.