Every Norm Has To Be Read
Deciding that a norm is clear enough to apply is already an interpretation. Reading always comes first.
The criteria in Spanish law
Article 3.1 of the Spanish Civil Code sets out five criteria:
| Criterion | What it attends to |
|---|---|
| Grammatical | The proper sense of the words |
| Systematic | The context within the statute and legal order |
| Historical | Historical and legislative antecedents |
| Sociological | The social reality when the norm is applied |
| Teleological | The spirit and purpose of the norm |
This sociological criterion fuels the debate between originalist reading (meaning fixed at enactment) and evolutive reading (meaning shaped by present social reality).
Interpretation has strict limits. A reading the text cannot bear is creation, not interpretation. Under Article 3.2, a decision may rest exclusively on equity only when a statute expressly allows it.
Antinomies
An antinomy occurs when two valid norms conflict. Four criteria govern them:
- Hierarchy: the higher norm prevails.
- Chronology: the later norm prevails over the earlier norm of equal rank.
- Speciality: the more specific norm prevails over the general one.
- Competence: the norm enacted by the authorised body prevails.
Gaps
A gap arises when the legal system supplies no direct rule. Judges must still resolve every case.
Article 4.1 of the Civil Code provides the main tool: analogy. Analogy applies when an unregulated case shares the core rationale of a regulated one.
Under Article 4.2, analogy is prohibited for criminal, exceptional and temporal provisions.
Application and justification
Application is often shown as a syllogism: norm plus facts yields the decision. Yet constructing both premises requires deep argument. Under Article 120.3 of the Constitution, judicial decisions must be reasoned and open to public critique.
Dworkin distinguished two types of legal standard:
- rules: apply in an all-or-nothing fashion.
- principles: carry weight, so an outweighed principle still survives.
Common pitfall: treating the criteria as an à la carte menu. They operate together. Article 3.1 states that interpretation looks fundamentally to the spirit and purpose of the norm. Relying solely on literal wording produces an incomplete reading.