Interpreting Law: Subjective Theory and Retroactivity
Subjective Theory of Legal Interpretation
The subjective theory posits that law embodies the legislature’s intent. Interpreters must reconstruct the historical will behind the law, mentally placing themselves in the legislator’s shoes.
This theory assumes law expresses the legislator’s will. Interpreters analyze the words used to uncover the intended meaning.
Conflict of Laws in Space
General Rule
Savigny states that the law applied should align with the legal nature of the issue, whether national or foreign.
Special Rules for Foreign Law
- Persons are governed by their home law.
- Things are governed by the law of their location.
- Succession is governed by the law of the last domicile.
Retroactivity of Laws: Roubier’s Doctrine
Laws are retroactive when applied to:
- Facts under prior law.
- Ongoing legal situations impacted by events before the new law.
Applying new laws to unrealized consequences of prior events is immediate, not retroactive.
Understanding Legal Language (Civil Code, Articles 19-24)
Grammatical Element (Article 19)
Clear wording should not be disregarded. Words and expressions used by the legislature are primary.
General Rule (Article 20)
Words are interpreted in their natural and obvious sense, as per general usage (e.g., RAE dictionary).
Exceptions
Legal Definitions (Article 20, Part 2)
Specific legal definitions apply to certain materials.
Technical Terms (Article 21)
Technical terms are understood as defined by experts in the field.
Historical Element (Article 19)
Refers to the authoritative history of the law’s establishment (e.g., legislative records).
Logical Element (Article 22)
The law’s context should illustrate its parts, ensuring correspondence and harmony.
Systematic Element (Article 22, 24)
Dark passages in legislation can be clarified by other laws, especially on the same subject.
Article 23
Analyzes historical reasons prior to the Civil Code’s enactment, considering whether a provision is favorable or hateful to extend or restrict its meaning.
Note: While some argue for a hierarchy among these elements, interpretation is complex and requires considering all elements simultaneously.