there are:- Dirksen (1837); ed. 1884). settlement of the text to be explained; which is CRITICISM. Cels. Scire leges non hoc est, verba earum tenere, sed vim ac potestatem.-1. 17, D. h. t. (=de legib. 1, 3).1 Ulp. Quamvis sit manifestissimum edictum praetoris, attamen non est negligenda interpretatio eius.-D. 25, 4, 1, 11.2 2. That which interpretation chiefly requires is the consideration in its whole connection of the text to be expounded. Cels. Incivile est, nisi tota lege perspecta, una aliqua particula eius proposita iudicare vel respondere.-1. 24, h. t. 3. All interpretation consists of two co-operating a As Lexicons elements: the grammatical and the logical. The to the sources ' grammatical' side of the interpreter's work has to do Brisson (1743); with the settlement of the natural meaning of words, Heumann (6th and in their connection according to the rules of the language. The 'logical' is directed to the investigation of the sense and the intrinsic ground of the legal Cf. Cod. 1, 14, rule (ratio, sententia legis") from the inner connection of these, their historical character and position in the legal system; and is at one time explanatory or 'declaratory,' especially in respect of statutes that Cf. Inst. 1. 25, have been framed obscurely; at another, 'extensive,' in respect of those that have been framed upon d Cf. Cic. p. too narrow a basis; at other times, restrictive,' in Cacc. 19, 54: Dig. 9. 2, 27, respect of those that have been framed upon one too 13; 14, 6, 9, 2; wide." 5. 16: Gai. ii. 29, 8. 24, I, 22. * Cf. § 47, ad fin. Paul. Cum in verbis nulla ambiguitas est, 1 To know statutes is to master, not their words, but their effect and meaning. Although the Edict of the Praetor is perfectly clear, yet the interpretation of it must not be neglected. 3 It is inequitable, unless we take a general view of the statute, to decide or give an opinion according to some small portion of it before us. non debet admitti voluntatis quaestio.-D. 32, 25, 1.' Cels. In ambigua voce legis ea potius accipienda est significatio, quae vitio caret, praesertim cum etiam voluntas legis ex hoc colligi possit.— 1. 19, D. h. t.2 : Ulp. Verbum ex legibus' sic accipiendum. est tam ex legum sententia quam ex verbis.D. 50, 16, 6, 1. : Cels. Nemo existimandus est dixisse, quod non mente agitaverit ; . . . prior atque potentior est quam vox, mens dicentis.-D. 33, 10, 7, 2.* : Paul. Non oportere ius civile calumniari neque verba captari, sed qua mente quid diceretur, animadvertere.-D. 10, 4, 19.* Id. Contra legem facit, qui id facit quod lex prohibet in fraudem vero, qui salvis verbis legis. sententiam eius circumvenit.-1. 29, D. h. t.o 4. Opposed to doctrinal, or that which is based upon scientific work, is the interpretation in Law of a statute by Legislation, or by Customary Law, i.e., respectively authentic' and 'usual' interpretation; If in the words there lie no ambiguity, no question of intention ought to be entertained. In an ambiguous expression of a statute, that acceptation of the meaning is to be preferred which yields nothing false, especially when a conclusion may therefrom be drawn as to the intention of the statute. 3 The expression according to statutes' is to be understood as, both according to the sense and according to the words of the statutes. It is not to be supposed that a person has said anything which he has not previously contemplated. The purpose of the speaker is anterior to and more important than his language. That the ius civile ought not to be subjected to false interpretation, neither should its words be wrested, but one should note the spirit in which anything is said. He acts in contravention of a statute who does what is forbidden thereby; whilst he erades the statute who retains its expression and yet applies a subterfuge to its ineaning. in which we have to do also with the decision of controversies. Imp. Iustinian.: Definimus, omnem imperatoris legum interpretationem ratam et indubitatam haberi; si enim in praesenti leges condere soli imperatori concessum est, et leges interpretari solum dignum imperio esse oportet.C. I, 14, 12, 3.1 1 Paul. Si de interpretatione legis quaeratur, in primis inspiciendum est, quo iure civitas retro in eiusmodi casibus usa fuisset; optima enim est legum interpres consuetudo.-1. 37, D. h. t.* Id.: Minime sunt mutanda, quae interpretationem certam semper habuerunt.-1. 23 eod.3 5. General rules of interpretation have only a relative value. : Iul. Quotiens idem sermo duas sententias exprimit, ea potissimum excipiatur quae rei gerendae aptior sit.--D. 50, 17, 67.* Gai. Semper in dubiis benigniora praeferenda sunt.-1. 56 eod.* Modest. Nulla iuris ratio aut aequitatis benignitas patitur, ut quae salubriter pro utilitate hominum introducuntur, ea nos duriore interpre 1 We direct that every interpretation of laws proceeding from the Emperor . be treated as valid and beyond all doubt; for, if now it is allotted to the Emperor alone to make statutes, the interpretation of them also should be solely his function. 2 If it be questionable how a statute is to be interpreted, one must first consider what legal maxim the State earlier on employed in like cases; for the best interpreter of statutes is Custom. 3 Least of all may be altered what has constantly had a fixed interpretation. Whenever the same phrase expresses a twofold sense, that shall the rather be accepted which suits better the matter to be dealt with. In doubtful cases the more lenient view is always to be preferred. tatione contra ipsorum commodum producamus ad From interpretation in the modern sense we have a prudentium to distinguish Analogy, or interpretatio in the proper Roman sense. By it is understood that application a The auctoritas to similar cases of a law which, derived from its ($7). intrinsic sequence, is according to its essential principles (ratio legis); sometimes taking the form of extensive interpretation, whereby a blank in the law E.g., Dig. 47, is filled up: ubi eadem legis ratio, ibi eadem legis dispositio.' 8, 3, 7. e See §§ 133, ad fin., 200, ad fin.; aut but cf. Dig. 1, sed 3, 39; ib. ll. 14 Non possunt omnes articuli singillatim Tertull. Semper quasi hoc legibus inesse and 15. 1 Neither legal principle nor the innate mildness of justice permits us, in respect of that which was introduced for the good and convenience of men, to carry interpretation to such a rigid extreme as to violate their interest. It is impossible that all single cases should be specially comprised in statutes and in decrees of the Senate; but when their sense is clear in respect of some matter, he that is entrusted with the administration of the law must apply the sentence to similar cases, and declare law in accordance therewith. For, as Pedius says, as soon as one thing or another is introduced by the statute, a good opportunity is given for supplying other things that serve the like interest, whether through interpretation or, at least, by the legal functionary. eas res pertinerent, quae quandoque similes erunt. -1. 27 eod.1 On the other hand, the limitation of a statute according to the ground thereofa—not to be confounded With restrictive interpretation (v. sup.)—is inadmissible, and the maxim 'cessante ratione legis cessat lex ipsa' is erroneous. The application of a statute is not already defeated by the fact that its design is not intrinsically demonstrable; and this whether (1) it appear to be in general irrational or unsuitable, or (2) the circumstances giving occasion to it have altered so long as it has not been displaced by Customary Law (desuetudo)-or that (3) the principle of the statute may, exceptionally, not hold good for the actual case. Non omnium, quae a maioribus constituta sunt, ratio reddi potest.-Et ideo rationes eorum, quae constituuntur, inquiri non oportet; alioquin multa ex his, quae certa sunt, subvertuntur.-1. 20 (Iul.), 1. 21 (Nerat.), eod." § 6. SYSTEMATIC ARRANGEMENT OF THE SUBJECT. Private Law results from the recognition of the individual as a PERSON, being the subject of rights, and regulates the expression of his will in respect of other Persons. The external world is the object of this expression of will: upon it the individual seeks definitely to operate; it is that which he endeavours 1 It must always be supposed that in statutes there is contained the intention, so to speak, that they should concern such persons and circumstances of like kind as shall at any time arise. We cannot assign the reason of everything that has been decided by our ancestors. And, accordingly, we cannot investigate the grounds of such matters as are decided; otherwise much that is established falls through. |