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On the theory of interpretation

Published online by Cambridge University Press:  02 January 2018

Hans Kelsen
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Extract

The legal system is not a system of co-ordinate norms, found at one and the same level. Rather, it is a hierarchical structure of superordinate and subordinate legal norms, whose reciprocal relations are illuminated by the structural analysis undertaken by the Pure Theory of Law. The enquiry into the hierarchical structure of the legal system has significant consequences for the problem of interpretation. Interpretation is an intellectual activity accompanying the law-creating process as it moves from a higher level of the hierarchical structure to the lower level governed by this higher level. In the standard case, that of interpreting statutes, the question to be answered is how, in applying the general norm (the statute) to a concrete material fact, one is to arrive at a corresponding individual norm (a judicial decision or an administrative act).

Type
Research Article
Information
Legal Studies , Volume 10 , Issue 2 , July 1990 , pp. 127 - 135
Copyright
Copyright © Society of Legal Scholars 1990

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References

1 See the first paragraph of 95, above.

2 The argumentum a contrario, deployed as a parry to the argument by analogy (thus, Kelsen's juxtaposition of the two in the text immediately following), in effect says: because the statute expressly specifies (only) A as falling within its scope, then B, C, D, etc do not fall within its scope, notwithstanding their similarity to A..

3 ‘Legal policy’ or ‘Rechtspolitik’, while comparable to ‘foreign policy’, ‘monetary policy’, and the like, is broader in scope, referring generally to the various considerations - in respect of both means and ends - raised by legislators about what ought to be enacted as law.

4 ‘Jurisprudence of concepts’ or ‘Begriffsjurisprudenz’ is the name of the early nineteenth century view, associated with Puchta and the early Jhering, to the effect that legal science, ‘identifying legal norms as systematically related to one another’, brings them to light ‘as the product of a scientific deduction %[einer wissenschuftlichen Deduktion]’. Georg Puchta, Cursus der Institutionen, vol 1 (Leipzig, 1841), 36.

5 Austrian General Civil Code, art 7: ‘If a case cannot be decided either from the language or from the natural sense of the statute, then consideration must be given to similar cases decided with certainty in the statutes and to the basis of other statutes related to the statute in question. Should the case still remain doubtful, then it must be decided with reference to the carefully compiled and well-considered circumstances, this in accordance with the principles of natural law.’ (Kelsen refers in the German language text to article 6, but this is clearly a typographical error or a slip, since article 6, addressed to ‘plain meaning’ and legislative intent, speaks to cases where a decision can be drawn from the statute - precisely the opposite of Kelsen's context, in which the statutory provision speaks to ‘cases where no decision can be derived from the statute’.).

6 Swiss Civil Code, art 1: ‘The statute applies to all legal questions for which, in its terms or its exposition, it contains a provision. If no directive can be derived from the statute, then the judge shall decide in accordance with customary law or, failing that, the rule that he as a legislator would adopt. He should be guided therein by established doctrine and tradition.’.