The Theory of Interpretation

Kelsen's theory of interpretation illustrates the character and complexity of the constitutive function of law-application, as well as from fresh aspects.

Primarily, he differentiates between the cognitive (e.g. scholarly, jurisprudential) interpretation and the authentic interpretation

carried out by the law-implementing body. The cognitive interpreta-tion of the law identifies the frameworks offered by the applicable law, i.e. the possible meanings and the various options for decision.

Normative interpretation will choose one of the former as the individual norm to be used in the concrete case of law-application.

Thus, the first is a cognitive act, the latter—as the creation of an individual norm—is an act of volition.

Kelsen stresses that the filling of the framework determined by the general legal norm in the course of law-application is no longer bound by the law,^{5 1} further that any normative influence on the

from the theoretical one; namely that instead of unfolding the features inherent in the subject, it is directed towards (he desired classification (pigeon-holing and submission) within the set of concepts defined within the normative system. While logically this endorses the form of subsumption, yet the system which claims the pigeon-holing classification is practice-oriented instead of being governed by epistemological considerations. The very process, in the course of which the juristic classification of the subject takes place, is dominated by the assessment of the social desirability of the normative consequences to be attached to the result of classifica-tion. Thus, any epistemological approach can involve an instrumental significance at the most. Cf. VARGA (1985a), ch. 5, par. 4, pp. 145 et seq. Meanwhile it seems that the correspondence between the natural language and the normative one at some optimum level, as well as the requirement of coherence, consequenliality and social backing in the socio-juristic practice of normative classifications, arc by now one of the preconditions of the entire normative process. All this is so deeply anchored in the social existence of the law that it appears to some theoreticians to be the

"inner morality" of law. Cf. FULLER (1964), ch. II and VARGA (1985b) p. 444.

5 1 "From an aspect focussing solely on positive law, there will not ensue any criterion on the basis of which the one possibility available within the frames of the applicable law could be preferred to the other (...1. It would be a futile effort to try to provide the legal basis of the one by excluding the other." KELSEN (1934), p. 96.

process of filling the frames could only take place through the free use of meta-juristic norm systems.^{5 2} Consequently, anything that ensues in the course of the said frame-filling was no longer a question of legal theory but that of legal policy.^{5 3}

It is questionable, therefore, whether can it be termed as interpretation at all? The answer to this widely debated question is mosUy rather sceptic, running against the Kelsenian view.^{5 4} While the contemporary critical answers had all originated from Kelsen and may have been true within their own logic, they all failed to recognize the essential duality of the legal process, a duality that can be traced all along Kelsen's expositions and never explicidy denied. Namely, that according to the presuppositions providing the foundations of the official ideology of law and of the operation of its institutional set-up, the processes ensuing in law show an analogy to the process of cognition; moreover, apparently, they may not even be distinguished from the latter. In respect of law-application, we have been made to see as such the "judicial

"Inasmuch as—in the course of legislation—beyond the necessary definition of Uie framework within which the act is lo be determined there is space for the cognitive process, then Ihe latter will not relate lo Ihe cognition of the positive law but to other norm which may eventually lead to Ihe creation of law. These are the norms of morals, fairness, further: social value judgments, usually labelled as welfare, public interest, progress, and so on. The positive law has nothing to say about their validity and ascertainment. From this aspect, any definition can only be characterized from the negative side: these are, then, definitions not originating from the positive law proper." Ibid., pp. 98 99.

5 3 Ibid, p. 98.

5 4 Sacco explained that "the continued mixing up of interpretation and applica-tion" was untenable [SACCO (1947), p. 131], since Kelsen had merely spoken about "the most convenient choice of the method of law-application" (Ibid., p. 118, note 6). Losano disclosed that the Kelsenian concept of law-interpretation was a distortion of the concept of interpretation. As it is in the case of authentic interpretation, Kelsen replaced the concept of interpretation based on the structure of cognitive interpretation, by a concept relying on a single function of interpreta-tion. Ultimately, Kelsen designated the individual norm-creation as interpretation [LOSANO (1968), pp. 2 1 3 - 2 1 5 ] .

establishment" of the validity of the applicable law and the facts of the case. Further, in addition, the cognitive interpretation which, according to Kelsen, first reveals the legal framework of the decision, whereupon it only necessitates a volitive a c t viz. the decision resulting in an authentic interpretation. In reality, however, judicial interpretation (owing to its normative environment and practical determination) shows hardly any common feature with the scholarly interpretation. Another argument against the common character is that it is the interpreter himself who will qualify judicial interpretation as such, achieving this with reference to its officially declared function. Meanwhile its actual structure does indeed demarcate it from any kind of interpretation.

Notwithstanding the above, it was just the ideologically declared community of purpose and the apparent similarity of structure that enabled it to be admitted as being analogic to cognitive interpreta-tion. We will qualify it as interpretation because we were made to accept it as the ideal expression of its ideal operation. Moreover, it is qualified as interpretation because revealing and defining meaning is one of its real features. In other words, whatever the outcome of the normative interpretation, revealing and unfolding a meaning must be necessarily included, even with a selective effect.

It boasts, therefore, the same status as does the logic in law: the ontological definition of law makes their presence inevitable (a presence that appears for us determinative), whilst the actual incongruencies will, just as inevitably, induce the law's operation of a differing homogeneity.^{5 5}

While the scientific interpretation of the norm starts from the norms themselves, and has the purpose of unfolding its substance, in the normative interpretation all this merely constitutes a passing, intermediary medium, in order that a proper practical answer can be reached by referring to that norm, by invoking its authority.

Putting it in another way, the norm is never the purpose or aim but

Cf. VARGA (1985a) par. 5.3.2 and 5.4.2-3.

a means to be shaped and providing a form, in the process of normative interpretation.