Despite the apparent simplicity of the question posed at the beginning of this essay, we cannot deny the multiple concepts that intersect in order to provide an adequate answer.
First, legal interpretation through the literal method implies attributing to the norm its “proper meaning.”¹ Doctrine maintains that literal interpretation recommends exclusively investigating the exact meaning of the words contained in the law.²
In this sense, literal interpretation is considered, together with the historical and grammatical methods of interpretation, as a form of subjective interpretation. Authors such as Guastini, in his work on declarative interpretation—cited in the study material of this module—indicate that literal interpretation merely seeks to declare (without altering) the initial and original meaning intended by the legislator and the scope of application of the norm. Professor Del Real explains, in relation to this point, in the study material of this module, that literal interpretation has often been characterized not only as declarative, but generally as restrictive.³
Literal interpretation is therefore also a subjective, rather than an objective, method of interpretation. It is subjective because, through it, the interpreter assigns to the norm that provides the solution to a case the same meaning with which it was created by the legislator, as well as the same scope of application that the ordinary legislator determined for it.⁴
Ana Magnolia Méndez Cabrera
Argumentation and Interpretation
In the study material of this module, citing López Calera in his work on Philosophy of Law, it is indicated that the use of subjective criteria in interpretation leads the interpreter to ask “what is the meaning of the law” according to “the purpose intended by the historical legislator” and “what the legislator meant to say with the specific words” of the law.⁵
This occurs with the literal method of interpretation which, due to its subjective nature, results in a restrictive interpretation, insofar as it does not extend the scope of the norms to situations other than those originally envisaged by the original legislator.⁶ Moreover, the literal meaning of words is a variable element that depends on the competence and linguistic intuition of each interpreter and, in this sense, it is highly subjective.⁷
In this regard, since literal interpretation has a subjective character, it may indeed become arbitrary.
In the essay “Literal Interpretation and New Theories of Reference,” Lorena Ramírez Ludeña explains that many jurists understand language in general, and legal language in particular, as being free of problems. This, however, is not true, since there are ambiguous terms that may be associated with different descriptions, giving rise to doubts as to which meaning is relevant in a given context. There are also problems of vagueness, because even when there is only one relevant meaning, specific cases may raise doubts as to whether they fall within the scope of application of the term.⁸
The risks of literal interpretation are diverse, but its restrictive nature appears to be the one most likely to generate arbitrariness in the legal sphere. Lorena Ramírez Ludeña, in the essay cited above, affirms that granting norms their ordinary or literal meaning, and emphasizing the way natural languages operate, is questionable and, in any case, wholly insufficient.
to account for legal interpretation.⁹ In this regard, the author previously mentioned points out that:
“(…) on certain occasions, jurists adopt a relatively clear position regarding the meaning of terms, but when they identify problems of over-inclusion or under-inclusion—leading to the unjust treatment of certain cases—they end up defending a different interpretation. When this occurs, the argument is often presented not as an appeal to what the interpreter considers just (which, due to its subjectivity and questionable legitimacy, could be criticized), but rather as being in accordance with the most basic and abstract constitutional principles, which introduces the possibility that arbitrariness may arise.”¹⁰
Ultimately, based on everything explained above, the answer to the central question of this essay is that literal interpretation is indeed a subjective criterion of interpretation. For this reason, it carries a degree of vagueness that may lead to arbitrary conclusions, insofar as the manner of interpretation can be restrictive and, consequently, exclude the reality of certain cases.
Bibliografía
Del Real, Alberto. Argumentación y métodos de interpretación. Métodos de interpretación jurídica. Material del curso.
Del Real, Alberto. Teorías actuales de la interpretación y argumentación jurídica. Módulo del curso, pp. 5–7.
Del Real, Alberto, citando a Guastini, Riccardo. Estudios sobre la interpretación jurídica. Editorial Trotta, Madrid, p. 26.
Ezquiaga Ganuzas, Francisco Javier. La argumentación en la justicia constitucional española. Servicio Editorial de la Universidad del País Vasco, Leioa, 1988, pp. 341 y ss.
Ramírez Ludeña, Lorena. Interpretación literal y nuevas teorías de la referencia. Disponible en línea.
Rojas Roldán, Abelardo. Sistemas de interpretación de la ley. El arte de la interpretación jurídica. p. 333. Disponible en línea.
