The genesis of the casual interpretation of legal norms

Dudko Georgii Nikolaevich ORCID: 0009-0004-1439-815X Postgraduate student; Department of Theory of State and Law ; Saratov State Law Academy 440000, Russia, Penza region, Penza, Moskovskaya str., 29 aftoboto@mail.ru

Introduction. The genesis of the development and formation of the foundations of the concept of casual interpretation of legal norms has not received due attention in the legal literature. The very topic of interpretation has outgrown the limits of the general theory of law and branch sciences, therefore, it is legal hermeneutics, which has applied significance, that can provide a more complete understanding of this matter ^[1].

The history of the development of society and the state shows that the need for interpretation of various phenomena, including legal ones, has accompanied mankind since its formation. At its core, casual interpretation is the result of the development of ideas that were laid down in the framework of hermeneutics as a whole, and not only its legal variety. Through it, events, signs, texts, etc. were initially interpreted in projection to the specific factual circumstances in which society found itself at one stage or another of its development. Therefore, we consider it very important to clarify the genesis of the formation of the casual interpretation of legal norms from hermeneutics, which is the primary basis for the type of interpretative activity we are interested in.

To conduct this research in the field of evolutionary formation of hermeneutical methodology and its separate variety, a historical, logical, comparative and systematic approach is used as the fundamental ones. In order to find arguments to prove a hypothesis, as well as to interpret historical texts, a historical approach is used when referring to primary sources. A logical and systematic method is used in the study and preparation of philosophical concepts of casual interpretation. Already on the basis of a comparative approach, the analysis of historical ideas about the object of research is carried out in order to compare and differentiate views on the causes and determinants of the development of a casual interpretation of a legal text.

Discussion. The beginning of the existence of hermeneutics (from Greek - I explain) is associated with Greek mythology, more precisely with the name of Hermes as the messenger of God, proclaiming their will to people ^{[2, p. 44]}. It originates in ancient times, when people are faced with the need to interpret dreams, predictions, signs, etc., which are of certain value to them. Thus, certain methods and ways of interpreting information are gradually emerging, which gradually lay the foundation for legal hermeneutics, and subsequently for the casual interpretation of legal norms.

Initially, its object was information of a sacred nature, gradually literary and legal materials became them. The latter were generally understood as a "dark" text requiring interpretation to a specific legal case ^{[3, p. 5]}. Here it is clearly seen that legal hermeneutics represented a casual interpretation in its modern sense, since legal texts were interpreted based on the specific circumstances of the case and the needs of individual individuals.

Already in antiquity, it (hermeneutics) is divided into three main varieties: philological, religious and mythological, which in some historical stages seriously converged, and in others sharply differentiated ^[4]. It is interesting that initially the principles of interpretation, which later lay the foundation for the implementation of the casual variety, were formed within the framework of mythology, since the language of the gods is incomprehensible to the common man. That is why a "tribe of interpreters" was formed around the soothsayers ^{[3, p. 9]}.

Aristotle draws attention to the problems of interpretation in his work "Peri hermenesias" – "On interpretation", where he designates the criteria for the truth and falsity of a written text based on the negations, statements, statements and contradictions contained in it ^{[5, pp. 91-116]}. At its core, he is the discoverer of the systematization and method of logical analysis, revealing one of the main problems of logic – the construction of deductive reasoning (syllogism).

The further development of hermeneutics is connected with the penetration of Christianity into the Greek world, as well as with the development of international trade contacts. As a result, there was a need to develop translation activities, as well as the interpretation of religious texts. This period is characterized by the appearance of two schools that laid the foundation for the development of theoretical ideas of interpretation: the Alexandrian (analogists) and the Pergamon (anomalists) ^{[6, pp. 231-268]}. Representatives of the first distinguished between historical and allegorical (priority) types of interpretation. They compiled commentaries on the works of Aristotle and Plato, trying to give them a naturalistic character ^{[7, p. 73]}. Representatives of the second school identified the only possible, in their opinion, type of interpretation – historical. The rivalry between these schools led to the fact that interpretation was no longer perceived as a divinely inspired art, as it gradually transformed into a set of theoretical rules. Subsequently, both in Ancient Greece and in Ancient Rome, they (theoretical rules) began to be used in the interpretation of legal sources by lawyers in the trial of a particular case ^{[8, p. 226]}. Actually, the practice of interpretation in Ancient Rome became the source of the development of legal hermeneutics, including the casual interpretation of the norms of law.

Thus, the need for interpretation in this state arose already in the archaic period (VII-IV century BC), when the inhabitants lived in communities, the leadership (religious and secular) of which was carried out by the pontiffs. After the publication of the Laws of the XII Tables, they began to draw up lawsuits for Roman citizens, and also carried out their interpretation in order to adapt the old formulations to new circumstances, while relying on the principle of stability of the legislative text. The activities of the pontiffs were semi-mythological in nature, since all issues were resolved taking into account astrological data, and the ways of forming and applying claim formulas to new cases were kept secret, which put the population in objective dependence on the work of the priests.

The inconvenience of the latter led to an increase in interest in legal knowledge, its dissemination among ordinary people, and the gradual desacralization of legal regulation. There is a period of "praetorian law", presented in the form of an order from the praetor to the judge to resolve a private dispute in a certain way. In addition, the former praetors provided legal advice, which gave rise to the beginnings of secular jurisprudence, and, in our opinion, a casual interpretation of the norms of law.

The heyday of jurisprudence in Ancient Rome occurred in the II century BC, when detailed comments on the Laws of the XII tables appeared on the basis of a philological analysis of outdated terms. During this period, Roman lawyers got acquainted with the works of Aristotle regarding the dialectical method based on analysis and synthesis, which leads to the emergence of classifications and definitions of legal concepts. Roman lawyers performed the following functions: respondere (answers to questions from individuals, magistrates, judges), cavere (mediation in transactions, etc. by creating their new forms in order to cover all possible consequences of their conclusion ("indirect" interpretation)), agree (conducting court cases, which assumed situational (casual) interpretation) ^{[9, p. 21]}.

The classical period of the ancient Roman state was marked by a new political regime – the principate. At this time, starting with Octavian Augustus, a group of privileged lawyers was formed, whose conclusions began to be mandatory (previously advisory in nature), they were given the importance of a source of law (for example, Guy, Modestin, Papinian, Pavel, Ulpian). If their judgments coincided, then they were generally given the force of law. Along with the resolution of controversial issues, they analyzed issues of a dogmatic nature in order to interpret legal norms in a more relevant meaning for current reality ^{[10, pp. 196-198]}. Moreover, it should be borne in mind that often for Roman lawyers, interpretation was more a means of justifying their own innovations than searching for the meaning inherent in the rule of law, that is, they did not find, but laid their own meaning in legal texts.

By the end of the third century A.D., there was a reduction in the official capacity of lawyers to amend laws, and their writings were no longer of significant practical importance. This is due to the processes of centralization of state power and the transformation of legislative powers into the prerogative of the head of state ^{[11, pp. 32-44]}. Emperor Justinian recognized the monopoly right to interpret laws. Thus, during his reign in Ancient Rome, it was forbidden to explain the Digests he published to anyone else. A similar position was taken by Pope Pius IV regarding the decrees of the Council of Trent ^{[12, pp. 43-47]}.

Important from the point of view of understanding the genesis of casual interpretation is the stage of development of medieval hermeneutics, which is characterized by the presence of conflict between the New and Old Testaments. At this time, the work of Aurelius Augustine "Christian Science, or the foundations of sacred Hermeneutics and the art of Ecclesiastical eloquence" is of considerable importance. He defends the idea that the interpreter, in addition to knowing the rules and methods of interpretation, needs to understand the interpreted phenomena. In his opinion, hermeneutics is an intellectual, emotional, communicative process of understanding the meaning of a text ^{[13, pp. 15, 27]}. These judgments, on the one hand, were of evolutionary importance for forming the foundations of understanding casual interpretation, but, on the other hand, they diverted the vector of development of worldview attitudes about this phenomenon into the field of religious idealistic views.

As the rules of interpretation, Aurelius Augustine identifies such as: historical, grammatical, allegorical, logical, goal-setting, systematic and rules for taking into account the context. It is important to note that they (rules of interpretation) are applied during the casual interpretation of the law. Thus, despite the deeply theological nature of his arguments, they laid the foundation for the development of the theory of legal hermeneutics.

The actual impulse for the development of the latter was the study of the code of Roman law found in the XI century at the Bologna Law School, which later spread throughout Europe as qualified lawyers were needed. Subsequently, scientific and practical methods of cognition and comprehension of Roman law were formed within the framework of the activities of glossator and postglossator schools ^{[14, pp. 45-50]}. In the thirteenth century, glossators of the University of Bologna wrote in the margins of legal texts (Corpus juris) in the form of explanations of the norms of Roman law in such a way that they were accessible to the public. Since this period, the development of hermeneutics has been taking place in parallel, based on the materials of theology and jurisprudence ^[4].

The Renaissance is characterized by the division of hermeneutics into secular and religious. Moreover, the main method of interpretation was historical and grammatical. The subject of hermeneutics is also expanding, as its principles begin to extend to humanitarian knowledge in general, and to jurisprudence in particular. At this time, he published his work "On the Law of War and Peace. Three books explaining natural law and the law of nations, as well as the principles of public law" by Hugo Grotius, who is one of the systematizers of legal hermeneutics. In chapter XVI "On Interpretation" of the second book, he describes techniques for interpreting words and terms, ways to clarify their meaning depending on the context, and recommendations for overcoming contradictions and antinomies existing in legal texts. He identifies grammatical, historical, logical, technical and recommendatory types of interpretation, as well as types of interpretation in terms of volume – literal and beyond the direct meaning of words ^[4]. Despite the fact that at this period the casual interpretation has not yet received its theoretical formalization in doctrinal works, the first steps appear in differentiating and specifying the types of interpretation on various grounds.

In the 18th century, the development of hermeneutics was influenced by the processes of rationalism, the gradual merging of religious and secular hermeneutics, and the long-term decline of jurisprudence. The latter is explained by the fact that lawyers concentrated their efforts on solving problems of adapting Roman law to the trends of their time. By the end of this century, there was an urgent need for the formation of a common universal hermeneutics capable of providing an understanding of any text, regardless of its belonging to a particular sphere of life.

On the other hand, completely opposite trends were forming. Thus, in a number of European countries (for example, Austria, Prussia), acts prohibiting the interpretation of legislation were adopted. Frederick the Great issued a decree according to which the exclusive right to interpret laws belonged to a special commission, while judges could not independently interpret legislative provisions. If the latter had doubts about determining the meaning of the applicable rule of law, they had to contact this commission ^{[15, p. 92]}.

Another striking example is the adoption in France of the Law of August 24, 1790, according to which the courts had to appeal to the legislative Assembly every time it was necessary to interpret the law. Later, a specialized body was created – the Court of Cassation, which was supposed to monitor the strict observance of the letter of the law by the courts in resolving cases. Actually, the usual interpretation of the law or the making of decisions that filled in the gaps in the legislation was considered a violation of the imputed duty ^{[16, p. 184]}. These examples demonstrate not only the strengthening of the centralization of power, but also the specifics of the development of the casual interpretation of legal norms, since either their interpretation was carried out by higher authorities, or they controlled the quality of its results.

The negative attitude towards the court's right to interpret legislative provisions was expressed not only at the state level, but also in science. The most prominent scientists of that time defended the position of strict adherence by the courts to the law, justifying this by the need to combat the arbitrariness of the feudal court. For example, S. Montesquieu wrote that "the republican form of government requires that the judge does not deviate from the letter of the law" ^{[17, p. 226]}. In the work "On crimes and punishments" Ch. Beccaria noted that judges are not legislative subjects, and therefore, they cannot have the right to interpret laws. In his opinion, the sovereign is endowed with this right as the guardian of the will of his subjects. The disadvantages caused by interpretation far exceed the disadvantages associated with exact adherence to the letter of the law ^{[18, pp. 75-78]}. It is important to disagree with this position. As the historical experience of many countries shows, the implementation of legal regulations without their direct interpretation is very limited due to the standardization of the latter. Interpretive activity makes it possible to correlate normative provisions with the multifaceted and multivariate life events to which they are applied.

At the beginning of the 19th century, Friedrich Karl von Savigny made a significant contribution to the formation of a universal hermeneutic system and, as a result, to the development of a casual interpretation of legal norms, who identified four types of legal interpretation: grammatical (finding the meaning of words and sentences); systematic (understanding the meaning in the context of the unity of laws in force in the country); historical (the search for meaning based on the conditions of the adoption of the law); teleological (clarifying the meaning based on the purpose of the adoption of the law) ^[4]. At first glance, the rather strange differentiation of interpretation into four varieties subsequently gives impetus to the formation of a new view of hermeneutical methodology, paying attention primarily to how interpretation should be carried out.

Attempts to create a universal hermeneutics were also made by F. Schleiermacher based on the definition of what understanding is in general ^{[19, p. 226]}. He distinguishes grammatical (analysis of the subject-content side of the text – objective understanding) and psychological (analysis of the individual characteristics of the style of the text and the personality of its author – subjective understanding) interpretation. They relate to each other as language and thinking. Accordingly, according to F. Schleiermacher's source of the law is the internal impulse of its author, initially unrelated to the language, which later receives its expression in the form of the text of the law, therefore, the task of hermeneutics is to find out this internal impulse.

In legal science, it is recognized that the work carried out by F. Schleiermacher's work is the first study in which an attempt was made to systematize the basics of interpretation and form a methodology for studying the text. His name is also associated with the concept of the hermeneutical circle, some elements of which were created in antiquity. Its main idea is as follows: the text cannot be understood immediately, first the interpreter perceives its general meaning, then he turns to its parts, figuring out their meaning. After that, he returns to the whole text and comprehends its meaning on a qualitatively new level.

Thus, its understanding goes through several stages of correcting its meaning, and interpretation is not a linear, but a multilevel process. Considering legal interpretation in terms of dynamics rather than statics is one of the advantages of this approach. Moreover, it seems to be the only true one for understanding the entire hermeneutical methodology, and not just the legal one.

A similar scheme of legal understanding manifests itself in the modern casual interpretation. After all, a separate incident often requires not only clarifying the meaning of the applicable rule of law, but also, at least, knowledge of the text of the entire normative legal act. For example, the legal qualification of criminal cases requires referring not only to the articles of the Criminal Code of the Russian Federation containing specific elements of crimes, but also to the normative prescriptions concluded in the General part of the specified act. Only such a multi-level approach will allow for the correct casual interpretation within the boundaries of a certain criminal case.

Conclusions. Based on the historical ideas discussed above about casual interpretation as a special kind of hermeneutic method of understanding a legal text, eight evolutionary stages of its comprehension should be distinguished.

At the first stage, the primary formation of views on this phenomenon is carried out under the influence of Greek mythology and treatises of ancient philosophers. The second stage is associated with the flourishing of jurisprudence in the Roman state and is conditioned by the need to correlate the content of normative prescriptions with the life events taking place. The beginnings of secular jurisprudence and casual interpretation of the norms of law are emerging. The third stage is marked by the arrival of Christianity and the influence of their doctrine, which consists in finding a new meaning about interpreted phenomena, including those interpreted through casual interpretation. The fourth stage represents the parallel development of theological and legal ideas about the casual interpretation of legal norms. The allocation of the fifth stage is determined by the formation of secular views on what is meant by the casual interpretation of normative prescriptions. Subsequently, this approach expands and displaces religious views about the phenomenon under study. The sixth stage is characterized by attempts to create a hypothesis of a common understanding of hermeneutics, the universality of its varieties, regardless of which text should be interpreted. At the seventh stage, the first universal scientific theories and concepts about legal hermeneutics in general and about casual interpretation in particular are being created. The eighth stage is predetermined by the final formation of a single meaning and content of legal hermeneutics and the allocation of its separate variety in the form of a casual interpretation of legal norms.

The analysis of modern legal literature leads to the conclusion that today the casual interpretation has become distinguished as a separate type of interpretation of law and is defined by scientists mainly in the same way as an explanation of the meaning of a legal norm given by competent authorities within the framework of consideration of a specific legal case (case) and is mandatory within the latter ^[20-23]. The main purpose of this interpretation is the correct resolution of a particular legal case. Its results are not generally binding, but they can serve as a model for resolving similar cases.