Selected problems related to the statutory regulation of law interpretation

Here I would like to address issues to the extent that I have not addressed them so far. [1] . These are the following issues: Can the legislator bind certain provisions on the interpretation and creation of the laws of future legislators? Can the normative act governing interpretation apply to the interpretation of normative acts adopted before its inception? To whom is interpretative law directed? What interpretative directives should be applied to the interpretation of interpretative provisions?

Can the legislator bind future legislators with specific provisions on interpretation and law-making?

In order to answer this question, a few more detailed questions need to be considered first. There is no doubt that the legislator cannot create acts of any substance – the provisions must be consistent with the Constitution. It is therefore tied in many matters by the elections made by the bodymaker.

The legislator must determine what the legislative path should look like. It should make precise arrangements for the legislative technique adopted [2] . It should also design legislation carefully. There are objective indicators of such care, for example the legislator is expected to follow the Directive of Terminological Consequences.

If the legislature edits the rules in a certain way to express non-A, then it should not then express A in the same way [3] . There are a number of issues where the legislator is bound or otherwise limited by the choices made by past legislators.

The nature of leges imperfectae, attributed to many standards directed to the legislator, is not the same as that any new legislature is free in legislative decisions taken [4] .

The question raised is what issues one The legislator should not bind future legislators [5] , and in practice what interpretative directives established by the legislator would be inadmissible or meaningless [6] .

Moreover, there is no obligation to bind future legislators with defined interpretative law when they may exclude the application of interpretative law for the purposes of interpreting a given act or enact lex specialis in the chosen scope. If the legislator does not amend the interpretative law or introduce specific provisions to it, it shall quietly accept it. Freedom to make changes depends on the level of interpretative provisions [7] and the content of additional conditions [8] .

Can the normative act governing interpretation apply to the interpretation of normative acts adopted before its inception?

The question of whether the normative act governing interpretation may apply to the interpretation of normative acts adopted before its inception concerns primarily general directives [9] . Applying interpretative rules only to regulations created after their adoption could create chaos.

The adoption of interpretative directives only for the future reduces the consistency of the solutions in the system. If the legislator decides to enact interpretative directives, they should apply to the entire law, including those which were in force before the current interpretative directives were introduced.

However, it should be done four assumptions.

After first, The establishment of interpretative directives must not affect matters already resolved [10] . This applies to both specific directions and general directions.

After second, Sometimes the rules need to be amended. Among other things, Nicholas Quinn Rosenkranz draws attention to this possibility, pointing out that it is the advantage of the legislature's law of interpretation. The legislature, unlike the courts, is competent to change the law [11] .

However, it should be noted that while the amendment does not cause major problems in the case of specific directives, making changes to the entire legislation (and even the assessment of the legislation itself for possible changes) is a much larger and more difficult undertaking [12] .

Theoretically, it is possible to create the whole law anew, but it seems that in practice it is only possible to adopt interpretative directives relating to such a law as is currently in force, and that only a few provisions will need to be amended.

In the case of provisions which have not yet been interpreted in doubt and which would have to be interpreted in a completely different way after the introduction of the new directives, these provisions should be reworded or explicitly excluded for the purposes of their application.

The problem would arise if none of these decisions were taken. For other provisions, the adoption of interpretative law could be an impulse to gradually amend problematic regulations.

After third, where the legislator, in the new interpretative legislation, formulates simple and non-controversial interpretative directives and orders that those directives which he had in mind so far, in the form of existing legislation, be guided by the fact that the new interpretative directives may apply to the interpretation of the provisions in force before their adoption. On the other hand, if the wording of the interpretative directives were to significantly alter the interpretation of the law and the meaning of the existing provisions, the question would arise as to whether such directives could be passed at all, in fact they would constitute a disguised amendment to the provisions interpreted.

After fourth, It seems that even by adopting interpretative provisions which would apply under the interpretation of the whole law, both after their adoption and before their introduction, it should be assumed that these provisions will not always apply.

This is because the interpretative rules are largely presumptive rather than mandates directives. Of course, breaking an existing presumption for them requires strong justification.

In certain cases, the fact that the provisions interpreted were enacted before the introduction of the new interpretative law could be a justification, and their context and interpretation so far suggest that directives other than those adopted by the legislator should apply to their interpretation.

To whom is interpretative law directed?

Some authors point out that all legislation [13] are addressed to the State and its entities and not to the general public or to that part of the society to which the text refers [14] . These authors point out that laws matter, even if most citizens never read them, and that if the text were intended for non-legal persons, then its interpretation by lawyers would be something that was unsuccessful and wrong. [15] .

It appears that the interpretative provisions contained in the normative acts are mainly designed for the enforcement authorities. Normative acts sometimes distinguish between whom the interpretative provisions are addressed [16] . It should not be forgotten that many rules of interpretation are common rules for lawyers and non-laws. A. Scalia and B.A. Garner note that regardless of age or culture, human intelligence is guided by certain principles of expression that are as universal as logic principles [17] .

It should also be stressed that many interpretative provisions are addressed simultaneously to the legislator himself, which is in line with the request for correspondence with the interpretation directives and the principles of lawmaking.

In fact, some authors argue that the main objective of much of the interpretative directives is to create a clearer law, rather than to direct some behaviour to interpreters. [18] .

There is no doubt that a large proportion of the interpretative directives are presumptive rather than rigid orders, but it is impossible to determine whether the interpretation directives are directed only to the legislator. In many cases they play a rather dual role.

What interpretative directives should be applied to the interpretation of interpretative provisions?

The interpretative provisions themselves may require interpretation. Just see how many interpretation problems give birth Article 12 Italian Civil Code [19] is Article 28 Hungarian Constitution [20] . one from authors 23 problems with interpretation only five Interpretative provisions of the Chilean Civil Code [21] .

In turn, the Hungarian literature notes that the wording first sentence of the provision Article 28 and from the order of words contained in it, it can be concluded that a propriety interpretation is more important than any other method of interpretation, or even compliance with the basic law, although in view of the existence of different methods of interpretation it is an unreasonable idea to establish one of them at the constitutional level, especially since it significantly increases the discretion of the ruling [22] .

As regards the priority of teleological interpretation before pro-constitutional, such a misconception is corrected because, in accordance with another provision of the Hungarian Constitution, the basic law and legislation are binding on each individual.

However, the correction does not solve the problem – it can also be concluded from the common interpretation of both provisions that, since the basic law is binding on all, courts are obliged to comply Article 28 sentence first [23] .

About the sentence second, It should be noted that the legislator, not the interpreter, should bear in mind the objectives of "moral and economics that correspond to sound sense and public benefit." In addition, there may be a conflict between interpretation in accordance with the provisions of the Constitution and interpretation in accordance with other provisions of the Basic Act – what to do when applying a provision that is moral (for example meets social expectations) but is anti-constitutional (infrings the right to protection of personal data or property) [24] ?

Interpretative provisions, although sometimes considered quasi-constitutional [25] , are not above the Constitution and as all other legislation must comply with it. If they are included in the basic law itself, they cannot be considered to be ‘excess’, even though their role is specific. However, it is important to bear in mind that it is a rather auxiliary role, not a primary one. [26] .

Normative acts that formulate interpretative provisions often require interpretative provisions to apply interpretative provisions themselves. Such a solution cannot be fully satisfactory because it does not specify how to apply it when it is necessary to interpret it. However, interpretative provisions cannot be considered worthless.

There is no doubt that to some extent they can be useful for their own interpretation. If they explicitly allow the use of legislative materials to discover meaning, then legislative materials created in the process of working on interpretative provisions can be addressed.

If they demand to follow the meaning of the best-fulfilling objective of regulation, then, using interpretative rules, we should be wondering what the purpose was to introduce them, etc.

Interpretation directives in the vast majority can serve for their own interpretation. The need to seek increasingly new interpretation directives is an artificial danger and has nothing to do with the practice of applying law or following any other rules. The phenomenon of autopoiesis and self-reference in law is not analysed in literature from now on. [27] .

It seems that a good supplementary solution to interpret interpretative provisions is to indicate not how to interpret them, but who is to interpret them. Otherwise, in some cases, indefinitely, it would be possible to seek permitted interpretation methods of the provisions setting out interpretation methods etc.

As I have already pointed out, at least to some extent some of the interpretative directives' objectives can also be achieved through competence directives.

The literature indicates that constitutions most often do not contain clear rules of interpretation and interpretation is simply an act carried out by the authorities applying the constitution (mainly the body responsible for judicial review in constitutional matters), and a summary of the methods used is made in writing [28] .

If the basic law contains interpretative provisions, they become the subject of interpretation as does the whole basic law, so their semantic content and practical role should be finally determined by the Constitutional Court [29] .

It should be made clear that the role of competence rules is somewhat complementary, but there is no question of replacing them with interpretative rules. After first, It's about avoiding arbitraryity. After second, As I said earlier, it cannot be considered that the interpretative provisions are useless in their own interpretation.

Fragment of the book “Interpretative Law”, Katowice 2022, courtesy of Wydawnictwo Uniwersytet Śląski.

The work was created by the implementation of research project no. Directive 2018/29/N/HS5/00648 financed by the National Science Centre

Author: Paulina Konca, graduate of law at the Faculty of Law and Administration of the University of Silesia