Methods and manners of interpretation of criminal norms
| Author | Simeneh Kiros Assefa |
| Position | Simeneh Kiros Assefa , LL.B (Addis Ababa University), LL.M (University of Pretoria), LL.M (Kyushu University), LL.M (University of San Francisco), Assistant Professor of Law at AAU Law School, Attorney-at-Law and member of California State Bar (inactive). Email: <simeneh@simenehlaw.com> |
| Pages | 88-124 |
88
Methods and Manners of Interpretation
of Criminal Norms
Simeneh Kiros Assefa
Abstract
The criminal justice system is constituted of criminal norms, institutions and
methods, among others. Interpretation of the criminal law is a process that
transforms the text of the law into reality. The process is influenced by various
factors, such as, the courts’ conception of the criminal law, the concept and
practice of interpretation and how the interpreting institutions understand their
role. The understanding of the three elements evolved over the years. The
exegetic school, taking statutes as the sole source of the criminal law, argue for
using ‘strict’ methods of interpretation. However, the hermeneutic school holds
that interpretation is about the understanding of the law as well as finding the
law to the facts of a case, thus, they argue for doctrinal interpretation. The
various doctrines of the criminal law constituting meta-norms scaffold the
ordinary interpretative methods of the criminal norms. This article discusses the
methods in law, which constitute an essential part of the criminal justice
system. After a brief introduction of those elements of the ‘system’, it delves
into the structures, the criminal norms as objects of interpretation and their
relation to the meta-norms, guiding the interpretation process. It examines the
notion of interpretation relative to legislative drafting and augmenting
knowledge of the criminal law. Finally, as there are various factors that push
the court into the realm of formalism, it also argues for a manner of
interpretation, away from judicial formalism.
Key terms
Interpretation, rules, principles, meta-norms, criminal law, object of
interpretation, judicial formalism, cassation division
DOI http://dx.doi.org/10.4314/mlr.v11i1.4
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
Simeneh Kiros Assefa , LL.B (Addis Ababa University), LL.M (University of Pretoria),
LL.M (Kyushu University), LL.M (University of San Francisco), Assistant Professor of
Law at AAU Law School, Attorney-at-Law and member of Cali fornia State Bar (inactive).
Email:
Methods and Manners of Interpretation of Criminal Norms 89
Introduction
In the past few decades, a different theory of the nature of law has evolved –law
is seen as an institution.1 This is a middle way between the normative and the
realist view of law. A different view of the criminal justice system has also
evolved. The legal system is not a system of norms only, as represented by
positivists;2 rather norms are only one unit in the examination of the legal
system; it is the sheer force of the institutions that give life to the dead letters of
the law – the formalist school.3 These developments appear to have changed the
debate on the nature of the law from one of content to a process. Thus, discourse
on interpretation of the criminal law should take these new developments into
consideration in addition to the theoretical developments in the field of
interpretation of law itself.
In order for the law to be applied, it is necessary that the law should be
interpreted. It is this conception of interpretation that had taken shape and
meaning in past three centuries. This is further assisted by a growing belief that
because the courts also define the object of interpretation, they influence the
content of the law through interpretation more than the lawmaker does.
Sometimes, interpretation is understood as “transformation” of the law.4
Consequently, because the interpretation process defines the outcome of the
case, there are differing opinions on the purpose and method of interpretation.
Interpretation of the criminal law is a ‘dialogue’ between the judge and the
text of the law; this ‘dialogue’ between the judge and the text of the law is
influenced by a host of factors beyond the mechanical methods of interpretation.
Defining the scope of the object of interpretation, assumptions on the
1 O. Weinberger (1991) Law, Institution, and Legal Politics: Fundamental Problems of
Legal Theory and Social Philosophy (Dordrecht: Springer); M. La Torre (2010) Law as
Institution (Dordrecht: Springer).
2 H.L.A. Hart (1961) The Concept of Law (London: Oxford University Press). J. Raz (1980)
The Concept of a Legal System: An Introduction to the Theory of Legal System, Second Ed.
(Oxford: Clarendon Press). H. Kelsen (1970) Pure Theory of Law (Berkley: California
University Press) Trans. by Max Knight, represent this view.
3 R.S. Summers (2006) Form and Function in a Legal System: A General Study (Cambridge:
Cambridge University Press). In the introduction, he succinctly discusses the significance
of and the credit due to form. In the following chapters, he discusses five areas of
functional unites of a legal system and interpretation falls under the methodological type of
form. Id., at 54.
4 M. Zamboni (2008) Law and Politics: A Dilemma for Contemporary Legal Theory (Berlin:
Springer), at 32. L.J. Wintgens (2002) “Rationality in Legislation – Legal Theory as
Legisprudence: An Introduction” In L.J. Wintgens (Ed.) Legisprudence: A New
Theoretical Approach to Legislation (Oxford: Hart Publishing), at 19. K. Touri (2002)
“Legislation between Politics and Law” In L.J. Wintgens (Ed.) Legisprudence: A New
Theoretical Approach to Legislation (Oxford: Hart Publishing), at 104.
90 MIZAN LAW REVIEW, Vol. 11, No.1 September 2017
organisation of the criminal norms, and the views of the institutions engaged in
the interpretation of the law about their interpretative responsibilities most
certainly define the outcome of the case.
The Criminal Code expressly prohibits interpretation by analogy; and it
contains extensive provisions governing the interpretation and the application of
the criminal law. In continental criminal code, the rules are found exclusively in
the special part of the code. There are principles predominantly included in the
general part; in fact, there are also few principles in the special part. The rules
and some principles are the operative part of the criminal law written in
“hypothetical-conditional” and consequence manner;5 they constitute the
criminal norms and are subject to interpretation.
There also are meta-norms, better referred to as ‘postulates’, such as, the
common good principle, the principle of legality, and the non-retroactivity of
the criminal law, that regulate and scaffold the interpretation and application of
the criminal norm. Often, they are found in the general part of the criminal code,
but some, as they are developed in the field of political theory are not fully
written in the code. It is within the parameter that is set by those postulates that
the ordinary methods of interpretation are applied.
This article examines the normative and institutional elements of
interpretation based on the criminal laws, the Federal Supreme Court Sentencing
Guideline and the Cassation Division binding interpretative decisions. Section 1
gives a general background of interpretation of law in general and interpretation
of the criminal law in particular. Section 2 dwells on how legislative drafting is
related to interpretation and how interpretation augments knowledge of the law.
It attempts to indicate that the concept of interpretation includes finding the law
to the facts of a case and applying such law. It then tries to address issues related
to interpretation for better understanding of the notion that interpretation does
not stand by itself but is inextricably linked with other areas, such as, drafting of
criminal legislation and knowledge of the law.
Section 3 deals with the organisation of the criminal norms and the meta-
norms. It discusses the meta-norms that ‘scaffold’ the interpretation of the
criminal norms. Section 4 attempts to delimit the scope of the object of
interpretation. It argues for hermeneutic interpretation of the criminal law.
Section 5 addresses the issue whether and when the criminal law needs to be
interpreted. Section 6 deals with the institutions responsible for interpretation,
including the Cassation Bench binding interpretative decision making power.
Section 7 deals with how interpretation of the criminal law is to be conducted.
In this section, the manners of interpretation are discussed. Arguments are
5 G. Hallevy (2010) A Modern Treatise on the Principle of Legality in Criminal Law (Berlin:
Springer), at 16.
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