Lecture 3

Question 1

Nature of legal interpretation

Answer 1

= function of discovering and expounding the inteded signification* of a legal text* in order to apply that signification to set legal cases.
- signification= norm= the behaviour that is expressed by the legal rule
- legal text= disposition= the text the law uses to provide the rule

Question 2

Types of interpretations (clear and proper meaning, logical connection, systematical connection, original legislative system):

Answer 2

• clear and proper meaning= defining the litteral meaning of the words written down to then elaborate them into legal language
• logical connection= the legal text is interpreted logically based on the practical reason for which is has been produced
• systematical connection= the meaning of law is primarly determined by considering it in its statutory or legal context
• original legislative will= what the lawmaker wanted to express through the writing of the legal rule= identifying what the political body’s actual intentions were when writing the legal rule (= best way of interpretation)– anachronism= acts’ interpretations can remain the same as they were

Question 3

Types of interpretation (pursuant to the Connection, pursuant to the European Union Law, authentic):

Answer 3

• pursuant to the Constitution: in case of several different interpretations the one that is closer to the Constitution is the best (most coherent)
• pursuant to the EU Law or ECHR: same as for the Constitution (obv worth only in countries in the EU)
• authentic: comes from the same author of the law; interpretation given byt the body that approved the law. No interpretation: 1. leaving bendness on the legal rule; 2. to adopt an authentic interpretation, procedures are required

Question 4

Interpreters of law

Answer 4

• judges= they identify the principles of law; possess the capability of interpreting the law
• law professors: may provide an interpretation used by the judges
• public administration
• the same legislative brach that provided the law (interpretazione autentica)

Question 5

Lacuna

Answer 5

= a “gap” or lack of a piece of law for a case wherefor there’s no proper rule to be applied

Question 6

Lacuna in Common and Civil Law

Answer 6

• Common Law: the judge is vested with the power to create a new rule (in case there’s no precise law) that will become a precedent for future cases
• Civil Law: the judge must express e a verdict by finding the rule in the statutory law. Ways of search:
  1. analogia legis= the rule in found in the most similar statutory disposition
  2. analogia iuris= the rule is found in the general principels of the Constitution

Question 7

Antinomia

Answer 7

= contrast or incompatibility between two or more laws, coming from different sources of law, that are all applicable to a case

Question 8

Criteria in case of an Antinomia

Answer 8

• Chronological Criterion (repeal): the newest law repeals the old one
• Hierarchical Criterion (annulment): the strongest law, following the hierachy of the sources of law: constitutional, primary= from the Parliament, secondary= regulations and executive acts, tertiary= customs and conventions
• Criterion of Specialisation (co-application): contrast between general and particular– wins the general one although the specific one remains in force
• Criterion of Attribution/Competence (non-application): based on “matter” of attributed legislative power