Methods and Manners of Interpretation of Criminal Norms 89
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.