§ 18. The Interpretation of the Law

Like every other law, the law of the Church too has the task of precisely establishing the meaning of a given legal relation, that is, of expressing in words a thought by which the existence of that legal relation will be secured against every error and arbitrariness. And for this to be achieved, those to whom the legal relations in question pertain must clearly and fully grasp that thought. For this it is not enough merely to know the words of the law itself mechanically,[1] but one must penetrate into its meaning and skillfully transpose oneself to the standpoint of the legislator and adopt the thought that guided him when he issued the law. This work is called the interpretation (ἑρμηνεία, interpretatio) of the law, which is defined as the clarification of the content of the law and the extraction of the inner from the outer, of the thought from the form.[2]

In the interpretation of law four elements are distinguished: the grammatical, the logical, the historical, and the systematic. The grammatical element of interpretation takes as its object the words of the law, and seeks to derive the meaning from the words themselves; it consists, then, in clarifying the expressions which the legislator used in the law. The logical element analyzes the very thought of the law, namely, it investigates the logical relation in which the individual constituent parts stand to one another within that thought. The historical element looks to the state of the legal relations of the time when the law was issued and examines the origin of the law itself. The systematic element, finally, concerns the inner connection which unites the given law with all the other legal institutions; and since this necessarily must have stood before the eyes of the legislator, only then will his thought be fully grasped if it is clear in what relation a given law stands to the whole system of law and what significance it has within that system. With these four elements the interpretation of law is exhausted. By uniting all four of these elements one achieves, first, that we vividly represent to ourselves the mental activity from which this or that expression of thought in a given law arose, and second, that we fully grasp the whole historical-dogmatic horizon from which the law in question could have arisen, and why this expression, and not another, was used in the text of the law. From this alone it is evident how great is both the usefulness and the necessity of the interpretation of law.[3]

The aforementioned foundations of interpretation may be fully sufficient when one is interpreting a law that is correctly set forth; but there are laws which are not fully intelligible, or concerning which doubt may arise as to their meaning, and in such circumstances those general foundations of interpretation alone no longer suffice. Such cases of not fully intelligible laws may arise either when an indeterminate expression is used in the law, one that does not convey a determinate thought, or when an irregular expression is used, one which expresses one thought while the law intends to express another. To remedy this, legal science prescribes several auxiliary means. Of these means, the first consists in investigating the inner connection of the whole body of legislation, and it can be employed in interpreting such laws either when the part of the law that is deficient in the text is clarified by another part of the same law,[4] or else when a law is interpreted by reference to other, similar laws.[5] This latter method will be the more reliable the closer the two laws stand to one another, and most reliable of all if both laws proceed from one and the same legislator. The laws in question, taken up for the clarification of an incomplete law, may also be older ones, and the presumption in that case is entirely sound, that the legislator of the given law had before his eyes those older laws, and that they supplemented what he had in mind when issuing his own law.[6] A second auxiliary means for clarifying not fully intelligible laws may be the examination of the cause of the law itself (ratio legis). This means is less reliable than the first, for here everything depends on whether, and to what extent, the true cause of the law is known, and it is very easy, with incomplete knowledge of that cause, to arrive at mistaken results.[7] A third means is reckoned to be the assessment of the inner significance of what has been obtained from the interpretation of the law in question. This is the least reliable means, for by it the interpreter can most easily overstep the bounds of his task and offend against the very thought of the legislator.[8]

With the rules set forth here, not everything has yet been said that must be done by one who is called to interpret laws. It is not possible for any one legislation to exhaust all the various cases that may occur in life, nor to issue all the laws that might be needed to provide for all these various cases.[9] Many gaps remain, which must be filled either by the issuing of new laws, or, where that is not done, by the correct interpretation and derivation, from the laws already in force, of what is needed in the given circumstances.[10] So it happens in secular legislation, and the very same happens in the legislation of the Church. Basil the Great, finding that the practice which had arisen in his time regarding virginity—a practice founded on the 19th canon of the Council of Ancyra—was not justified, says that one ought to attend more carefully to the sense of Holy Scripture, such as can be derived by interpretation,[11] and, doing this himself, he derived by way of interpretation, from one general basic rule, several new provisions on the same question which had not previously existed, and which afterward, at the Council in Trullo, received the force of law.[12] The same Father also prescribes the manner in which one ought to proceed in this task, so as not to arrive at mistaken conclusions. “We were asked,” says Basil the Great, “whether it is written that one may take to wife the sister of one’s first wife, and we said what is certain to us and true, namely, that this is not written; and to derive from consistent inference something about which nothing has been said can be done only by him who issues the law, not by him who applies it, for in such a case it would be permitted to whoever might venture it to take, while his wife still lived, her sister as well; and such a sophism could very well be attached to precisely this case.”[13] The rule of Greco-Roman law, that in cases where there is no positive law concerning a given matter one ought to judge by the laws concerning similar matters,[14] was applied abundantly also in the legislation of the Church,[15] and that legislation follows this rule to this day.[16]

An exemplary application of all these rules of interpretation is found in the commentaries on the canons by John Zonaras, and likewise in the scholia of Theodore Balsamon on the Nomocanon in Fourteen Titles.[17]