VU INTERPRETATION 45. THe Narore oF INTERPRETATION f law is to be applied by a legal organ, he must determine the meaning of the norms to be applied: he must “interpret” these norms. Interpretation, therefore, is an intellectual activity, which accompanies the process of law application in its advance from a higher to a lower level, In the case we usually think of when we talk about interpretation, the interpretation of a statute, the ques- tion needs to be answered as to what content is to be given to the im ual norm of a judicial decision or an administrative decree in deducing this individual norm from the general norm of the statute to be applied in a concrete case. But there also exists an in- terpretation of the constitution, if it is necessary to apply the con- stitution on a lower level, such as in the procedure of legislation, in issuing emergency regulations, or in the performance of other acts authorized directly by the constitution; and there also exists an interpretation of the norms created by international treaties or of the norms of general international law created by custom, if these norms are to be applied in a concrete case by a government or an international or national court or an administrative organ. And there also exists an interpretation of individual norms, judi- cial decisions, administrative commands, legal transactions, and so on—in short, of all legal norms that are to be applied. But also the individuals who have to obey the law by behaving in a way that avoids sanctions, must understand the legal norms and therefore must ascertain their meaning. And finally the sci- ence of law, too, when describing positive law, must interpret its norms. 348INTERPRETATION 349 Hence we have two kinds of interpretations which must be clearly distinguished: the interpretation of law by the applying organ, and the interpretation of the law by a private individual and especially by the science of law. First we shall consider the in- terpretation by the law-applying organ. a) Relative Indefiniteness of the Law-applying Aci The relationship between a higher and a lower level of the legal order, such as constitution and statute, or statute and judicial de- cision, is a relationship of determining or of binding: the higher- level norm regulates the act by which the lower-level norm is cre- ated, or the act of execution; the higher-level norm determines not only the procedure in which the lower norm is created or the act of execution is performed, but—possibly—also the content of that norm or that act. This determination can never be complete. The higher norm cannot bind in every direction the act by which it is applied. There must always be more or less room for discretion, so that the higher norm in relation to the lower one can only have the charac- ter of a frame to be filled by this act. Even the most detailed com- mand must leave to the individual executing the command some discretion. If the organ A orders organ B to arrest subject C, the organ 8 must, according to his own discretion, decide when and where and how to carry out the order of arrest—decisions that de- pend on extraneous circumstances which the ordering organ has not foreseen and to a certain extent cannot foresee. b) Intentional Indefiniteness of the Law-applying Act Hence every law-applying act is only partly determined by law and partly undetermined. ‘The indefiniteness may concern either the conditioning facts or the conditioned consequences, The indefi- niteness can be intentional, that is, intended by the organ who cre- ates the norm to be applied. Hence a merely general norm is al- ways created with the assumption that the creation of the individ- ual norm by which the general norm is applied will continue the process of determination which constitutes the meaning of the hierarchy of the legal order. Here are two examples: A law pre-350 INTERPRETATION scribes that at the outbreak of an epidemic the inhabitants of a town have to take, by pain of punishment, certain measures to prevent the spreading of the disease; the administrative authority is authorized to determine the various measures according to the various diseases. A criminal law provides in case of a certain delict a fine or imprisonment leaving it to the judge to decide in the concrete case for the one er the other, and also to determine the extent of either; whereby the law may provide an upper and a lower limit. ©) Unintended Indefiniteness of the Law-applying Act ‘The indefiniteness of the legal act may also be the unintended re- sult of the way in which the legal norm is formulated that is to be applied by the act in question, This happens usually when a word or clause used in formulating the norm has more than one mean- ing: the linguistic expression of the norm is ambiguous; different interpretations of the wording are possible. The same happens when the individual who has to apply the norm believes that there is a discrepancy between the wording of the norm and the will of the norm-creating authority—regardless in which way this will can be found out, It must be regarded as possible to find out that will from sources other than the words of the norm itself. The possibil- ity that the so-called will of the legislator or the intention of par- ties in a legal transaction does not conform with the expressed words is generally recognized by traditional jurisprudence. The discrepancy between will and expression may be total or partial— the latter, when the will of the legislator or the intention of the parties conforms at least with one of the interpretations which the words of the norms allow. Finally, the indefiniteness of the legal act that is to be performed may also be the result of the fact that two norms which both claim validity—perhaps because they are both included in the same statute—partly or wholly contradict each other. d) The Law to Be Applied Is a Frame In all these cases of intended or unintended indefiniteness at the lower level, several possibilities are open to the application of law.INTERPRETATION 351 ‘The legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm- creating authority that is to be determined somehow, (c) with the expression which the norm-creating authority has chosen, (dJ with the one or the other of the contradictory norms; or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these cases, the law to be applied consti- tutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame. IE “interpretation” is understood as cognitive ascertainment of the meaning of the object that is to be interpreted, then the result of a legal interpretation can only be the ascertainment of the frame which the law that is to be interpreted represents, and thereby the cognition of several possibilities within the frame. The interpretation of a statute, therefore, need not necessarily lead to a single decision as the only correct one, but possibly to several, which are all of equal value, though only one of them in the action of the law-applying organ (especially the court) be- comes positive law. The fact that a judicial decision is based on a statute actually means only that it keeps inside the frame repre- sented by the statute; it does not mean that it is the individual norm, but only that it is one of those individual norms which may be created within the frame of the general norm. Traditional jurisprudence, however, expects from interpreta- tion not only the ascertainment of the frame, but the fulfillment of another task, and sees in the latter actually its main function: interpretation is to develop a method that makes it possible cor- rectly to fill the ascertained frame. Traditional theory will have us believe that the statute, applied to the concrete case, can always supply only one correct decision and that the positive-legal “cor- rectness"’ of this decision is based on the statute itself. This theory describes the interpretive procedure as if it consisted merely in an intellectual act of clarifying or understanding; as if the law-apply- ing organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existing possibili- ties only one correct choice could be made in accordance with positive law.352 INTERPRETATION €) The So-called Methods of Interpretation From a point of view directed at positive law, there is no criterion by which one possibility within the frame is preferable to another. ‘There simply is no method (that can be characterized as a method. of positive law), by which only one of several meanings of a norm may gain the distinction of being the only “correct” one—pro- vided, of course, that several possible interpretations are available. Despite all efforts of traditional jurisprudence it has not been pos- sible so far to solve in an objectively valid fashion the conflict be- tween will and expression in favor of the one or the other. All methods of interpretation developed so far lead only to a possible, hot a necessary, result, never to one which is alone correct. From the point of view of positive law, one method is exactly as good as the other—to neglect the wording and adhere to the presumed will of the legislator or to observe strictly the wording and pay no at- tention to the (usually problematical) will of the legislator. If it occurs that two norms of the same statute contradict each other, then, according to positive law, the mentioned possibilities of ap- plying the law are of equal weight. It isa futile endeavor to try to justify “legally” one at the exclusion of the other. That the argu- mentum a@ contrario and analogy as means of interpretation are entirely worthless can be seen from the fact that both lead to op- posite results and that no criterion exists to decide when the one and when the other should be applied. Similarly, the principle called “weighing of interests" (Interessenabwdgung) is merely a formulation of the problem, not a solution. It does not supply the objective measure or standard for comparing conflicting interests with each other and does not make it possible to solve, on this basis, the conflict. It is impossible to derive this measure or stand- ard from the norm that is to be interpreted, or from the statute that contains the norm, or from the entire legal order, as has been. asserted by the theory of the so-called “weighing of interests.” For the need for an “interpretation” results precisely from the fact that the norm to be applied or the system of norms leaves open several possibilities—and this means that it contains no decision as to which of the interests in question has a higher value than the others, but leaves this decision to an act of norm creation to be performed, for example in rendering a judicial deINTERPRETATION 353 46. INTERPRETATION As aN ACT oF Cognition or WILL The idea on which traditional theory of interpretation is based, namely that the determination (o£ the legal act to be performed) not tendered by the norm that is to be applied could be gained by some cognition of the existing law, is a contradictory fallacy be- cause it is incompatible with the presupposed possibility of an in- terpretation. The question which of the possibilities within the frame of the law to be applied is the “right” one is not a question of cognition directed toward positive law—we are not faced here by a problem of legal theory but of legal politics. The task to get from the statute the only correct judicial decision or the only cor- rect administrative act is basically the same as the task to create the only correct statutes within the framework of the constitution. Just as one cannot obtain by interpretation the only correct stat- utes from the constitution, so one cannot obtain by interpretation the only correct judicial decisions from the statute. To be sure, there is a difference between these two cases, but it is only one of quantity, not of quality; the difference is merely that the con- straint exercised by the constitution upon the legislator, as far as the content of the statutes is concerned which he is authorized to issue, is not as strong as the constraint exercised by a statute upon the judge who has to apply this statute—that the legislator is much freer in creating law than the judge, But the judge too creates law, and he too is relatively free in this function. For the creation of an individual norm, within the frame of a general norm in the proc- ess of applying the law, is a function of the will. So far as in apply- ing the law a cognitive activity of the law-applying organ can take place, beyond the necessary ascertainment of the frame, in which the act to be performed is to be kept, it is not cognition of positive law, but of other norms that may flow here into the proc- ess of law-creation—such as norms of morals, of justice, constituting social values which are usually designated by catch words such as “the good of the people,” “interest of the state,” “progress,” and the like. From the point of view of positive law nothing can be said about their validity. Seen from the point of view of positive law, all these norms can be characterized only negatively; they are norms that are not of positive law. With respect to this law, the354 INTERPRETATION establishment of a legal act, so far as it takes place within the framework of the legal norm to be applied, is free, that is, within the discretion of the organ called upon to establish the act— unless positive law itself delegates some meta-legal norms like mor- als or justice; but then these norms are transformed into norms of positive law. If not only the interpretation of the statutes by courts or admin- istrative authorities, but the interpretation of law in general by law-applying organs is to be characterized, the following may be said: In the application of law by a legal organ, the cognitive in- terpretation of the law to be applied is combined with an act of will by which the law-applying organ chooses between. the possi- bilities shown by cognitive interpretation. This act of will creates either a lower-level norm or is the execution of a coercive act stip- ulated in the legal norm to be applied. This act of will differentiates the legal interpretation by the law- applying organ from any other interpretation, especially from the interpretation of law by jurisprudence. The interpretation by the law-applying organ is always authen- tic. It creates law. To be sure, we speak of “authentic interpreta- tion” only if this interpretation assumes the form of a statute or an international treaty and has general character, that is, if it creates law not only for a concrete case but for all similar cases—in other words, if the act described as authentic has the character of the creation of a general norm. However, the interpretation by a law- applying organ is authentic (law-creating) also if it creates: law only for a concrete case, that is, if the organ creates only an indi- vidual norm or executes a sanction. Here it is to be noted: By way of authentic interpretation (that is, interpretation of a norm by the law-applying organ) not only one of the possibilities may be realized that have been shown by the cognitive interpretation of the norm to be applied; but also a norm may be created which lies entirely outside the frame of the norm to be applied. By such authentic interpretation law can be created not only in a case in which the interpretation has general character (where we are, then, confronted with “authentic interpretation” in the tra- ditional sense) but also in a case in which an individual legal norm is created by a law.applying organ, as soon as the validity of this norm cannot be rescinded, as soon as this norm has gained theINTERPRETATION 355 force of a final judgment. It is well known that much new law is created by way of such authentic interpretation, especially by courts of last resort. ‘The interpretation by a law-applying organ is different from any other interpretation—all other interpretations are not authen- tic, that is, they do not create law. If an individual wishes to obey a legal norm that regulates his behavior, that is, if he wishes to fulfill a legal obligation by behav- ing in a way to whose opposite the legal order attaches a sanction, then this individual, too, must make a choice between different possibilities if his behavior is not unambiguously determined by the norm. But this is not an authentic choice. It does not bind the organ who applies this norm and therefore always runs the risk of being regarded as erroneous by that organ, so that the individual's behavior may be judged to be a delict, 47. INVERPRETATION BY THE SCIENCE or Law The interpretation of law by the science of law (jurisprudence) must be sharply distinguished as nonauthentic from the interpre- tation by legal organs. Jurisprudential interpretation is purely cognitive ascertainment of the meaning of legal norms. In contra- distinction to the interpretation by legal organs, jurisprudential interpretation does not create law. The view that it is possible to create new law by merely cognitive interpretation of valid law is the basis of the so-called Conceptual Jurisprudence (German: Begriffsjurisprudenz) which the Pure Theory of Law rejects. The purely cognitive interpretation by jurisprudence is therefore un- able to fill alleged gaps in the law. The filling of a so-called gap in the law is a law-creating function that can only be performed by a law-applying organ; *#* and the function of creating law is not performed by jurisprudence interpreting law. Jurisprudential in- terpretation can do no more than exhibit all passible meanings of a legal norm. Jurisprudence as cognition of law cannot decide be- tween the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorized to apply the law. An attorney who, in the interest of his client, °= CE § 35g. subsection “The so-called gaps in the law.”350 INTERPRETATION propounds to the judge only one of several possible interpreta- tions of the legal norm to be applied in this case, or a writer who in his commentary extolls a specific interpretation among many possible ones as the only “correct” one, does not render a function of legal science, but of legal politics. He seeks to influence legisla- tion, This, of course, he cannot be denied. But he cannot do this in the name of legal science (jurisprudence) as so frequently is done. Jurisprudential interpretation must carefully avoid the fic- tion that a legal norm admits only of one as the “correct” interpre- tation. Traditional jurisprudence uses this fiction to maintain the ideal of legal security. In view of the ambiguity of most legal norms this ideal is only approximately attainable. It should not be denied that the fiction of legal norms having but one meaning may have great advantages from some political point of view. But no political advantage can justify the use of this fiction in a scien- tific description of positive law. It is, from a scientific and hence abjective point of view, inadmissible to proclaim as salely correct an interpretation that from a subjectively political viewpoint is more desirable than another, logically equally possible, interpreta- tion. For in that case a purely political value judgment is falsely presented as scientific truth. Besides, the strictly scientific inter- pretation of a statute or international treaty, exhibiting on the basis of a critical analysis all possible interpretations (including the politically undesired ones and those not intended by the legis- lator or the contracting parties, yet included in the wording chosen by them) may have a practical effect by far outweighing the political advantage of the fiction of unambiguousness, of “one meaning only”: such scientific interpretation can show the law- creating authority how far his work is behind the technical postu- late of formulating legal norms as unambiguously as possible, or, at least, in such a way that the unavoidable ambiguity is reduced to a minimum and that thereby the highest possible degree of legal security is achieved.