PRACTICAL ISSUES REGARDING THE INTERPRETATION OF CRIMINAL AND CIVIL RULES

Abstract

The authors, after presenting a set of contradictory opposing judicial practices as an indisputable judicial and social reality, attempt to substantiate the types, principles, forms, techniques and methods of interpretation of the law, presented - usually - through general formulations, on realistic criteria and by critically distancing themselves from positivist clichés. From such a perspective, it seeks and sketches a conceptual model through which to describe the law (norm) subject to interpretation, the legal professions that indicate the subjects with competence to interpret, as well as jurisprudence starting from their social foundation: the set of values, interests, principles and laws structured in a confused hierarchy and in continuous movement, evolution. Interpretation in situations of uncertainty can only be achieved by searching for the real foundations of the legal institution in which the norm is located. The judge, the protagonist of the interpretation, as well as his professional will, is given preferential space: his will is sovereign – his independence is the effect of his sovereign will – because he has the fundamentally statutory mission of ruling on atypical situations, in which no one can know in advance how to proceed nor can he offer uncontestable interpretations.