General theory of legal interpretation: critical considerations on Black’s work

Abstract

On the pretext of commenting the first chapter of the work entitled Handbook on the construction and interpretation of the laws by Henry Campbell Black, this paper presents a true general theory of legal interpretation. One defends the inaccuracy of the concept of construction, considering the proper meaning of legal interpretation. Positive and non-positive hermeneutical rules can only be considered a component of positive law if certain requirements are duly observed. Everyone is an interpreter of the Constitution; however, judges are true oracles of the law. The interpretation of non-legal technical concepts depends on the manifestation of the relevant technicians (experts), in that such manifestation cannot be dismissed even if the judge himself has the technical knowledge of the issue. Foreign rules must be interpreted as they are understood under foreign law. This is a matter of fact to be proved, as a general rule, by expert examination that may be replaced with documental evidence, but that cannot be dismissed by the court, even if the latter is well aware of the applicable foreign law.