Towards better understanding of the role of law and better enactments
A primary focus for all law students and legal practitioners is reasoning law with any given case.
In the beginning of studying law, it comes to our knowledge that the primary sources of law are as follows, Constitution, laws and regulations, Customs, Natural law principles and Jurists and Judiciaries as a source of interpretation. It is also vital for gaining a legal sense as a start to know how to reach a proper understanding of a specific legal rule and how to apply it to a given case to find a right legal solution, that is an essential part when studying law to practice legal analysis. However, the more we develop a better understanding of law, the more we face complexity in solving our legal problem due to the sophistication of the facts in relation to it and the surrounding circumstances at a time.
When starting investigating law as a legal practitioner, we are encountered with several rules under different laws that could be contradicting with each other. Here the situation raise a difficulty and a challenge when examining law, as we have to choose the correct rule to be applied to the dispute. It may sounds easy to pick the right legal rule and to interpret it in the light of the facts of the dispute. But with contradicting interests of two legal opponents, different interpretations may exist. At this stage, we refer to judges under their discretionary power to determine what rules shall be applied in this regard.
The question that is necessary to answer in this regard, is How to interpret law whether as a judge or a lawyer or a legal researcher?
First of all, we must be aware of the law(s) that shall be applied to our case by gathering all facts and the question(s) to be addressed. For instance, if the dispute is about the ownership of a land under Egyptian law, we refer to civil law rules in relation to ownership, but if the case is not about ownership of a land by foreigners, we refer to Law No. 230 of 1996 on the Regulation of Ownership of Built Properties and Vacant Land by Non-Egyptians.
Secondly, once the applicable rule(s) to the dispute is decided, it is substantial to read and interpret it rightfully. Propositions of law can be very abstract and general, which may brings difficulty when trying to interpret it and apply it to our case, accordingly, reaching the essence and reasoning of such rule is what is essential to find the accurate legal interpretation. For example, lawyers are requested to deliver many legal advices, when delivering such advice it is important to refer to the relevant laws, select from different legal scenarios, and assess the risk w
hen suggesting a specific scenario, such assessment has to be stemmed from a correct interpretation of the applicable legal rule(s). In many cases there are several rules that are general in its sense to limit our decisions, when failing to narrow it down a risk may occur. Hence, finding the applicable legal rule is not enough without knowing the rationale behind it, such rationale is discovered by a good reading of the legal rule.
Thirdly, finding sources of interpretation is highly crucial, the law may include a specific rule to regulate a certain action, but is ambiguous when reading which cause a difficulty when applying it to our case. In this case, a referral must be made to the applicable sub substantive rules, jurists’ opinions’ and court decisions in this regard which is known as “stare decisis”. For instance, if an article of law is not clear, we refer to its executive legal regulation if still not understandable, we refer to jurists’ interpretation and courts’ judgments.
After presenting the three steps for a better law interpretation, it is substantial to cover also the cases where there are no legal rule to be applied to our legal inquiry.
In other words, if the law is silence on a specific matter, how can we determine if an action is legal or not. In this scenario, we have to fill such legislative gap using analogy. The use of analogy in this respect could be done through linking our case to our reasoning of law under a specific jurisdiction i.e. by interpreting the essence of law under this jurisdiction to find whether such jurisdiction welcomes generally this type of actions and then investigating whether such action may violate the rationale of the legal rules in this country. The puzzle of filling the gaps arises because provisions of law seem to be descriptive they are about how things are in the law, not about how they should be and yet it has been proved extremely difficult to say exactly what it is that they describe. It is commonly said that law is a matter of interpretation; but only, perhaps, because they understand interpretation in a certain way.
When a statute (or the Constitution) is unclear on some point, because some crucial term is vague or because a sentence is ambiguous, lawyers say that the statute must be interpreted, and they apply what they call “techniques of statutory construction.” Most of the lawyers or judges assume that interpretation of a contract, for example, is a matter of discovering what its contractors meant to say in using the words they did. But lawyers and judges recognize that on many issues the contractor had no intention both ways and that on others his intention cannot be discovered. Here, a successful decision is based on a right reasoning and interpretation of the primary sources of law and grasping the customs when conducing the action has been tested under the jurisdiction of the country.
To conclude, our hope as legal practitioners is to reach a deeper grasp of the structure and justification of the rationale of any legal rule to enhance the rule of law by realizing the aims of any legislation. The suggested steps for interpreting the laws will surely help to capture many intuitive understandings of the concerns of law.
Jihad Al Saeed
Legal Researcher & Attorney at Law
LLM University College London