§ 1. There are certain affections and circumstances of laws which no less than the laws themselves either assist or oppress the state. The first of these is interpretation, by which laws are either extended or restricted and their meaning is in some manner expounded to us.
Next is ἐπιείκεια, when a law is understood according to equity and goodness, not according to rigid right. Third, dispensation. Finally, abrogation. These must be discussed briefly.
§ 2. Interpreters of laws were once held in the greatest honor and are so even now, for they are, as it were, living laws and speaking justice, no less necessary to the state than the laws themselves. For what are rights if there are no persons to give answers concerning right? But many abuse this sacred and royal office for pride and avarice. The reason why there is need of interpreters is that, in matters which are various, hidden, unusual, and possess names proper to their discipline, the mind of the legislator is not easily perceived without a great consideration of all things, unless a great part of those matters is understood. But I said above how the infinite multitude of laws now has produced more interpretations and interpreters, and how new interpreters multiply new expositions of laws.
§ 3. Interpretation of laws is threefold: authentic, customary, and doctrinal. Authentic interpretation is that made by the state or a magistrate possessing the legitimate power of carrying law. For it has the force of law when it does not decide a single case, but declares with authority that this is the meaning of the law. Constantine speaks of this, as it is in the Code, On Laws and Constitutions of Princes: “It both belongs and is permitted to us alone to examine an interpretation interposed between equity and right. Given on the third day before the Nones of December, in the consulship of Sabinus and Rufinus.”
The emperor must be judged to claim for himself alone authentic interpretation, which is in a certain manner a new law.
For the judgment of the supreme prince has the force of law and is extended to similar cases, as it is in the last law of the same title: “If the imperial majesty has judicially examined a cause and, with the parties placed face to face, has pronounced judgment, let absolutely all judges who are under our empire know that this is a law not only for that cause for which it was produced, but also for all similar causes. For what is greater, what more sacred than the imperial majesty? Or who is swollen with the disdain of such pride that he contemns the royal judgment? Since the founders of the ancient law also openly and clearly define that constitutions which proceeded from an imperial decree obtain the force of laws. Therefore, since we also find it doubted in the ancient laws whether, if the imperial judgment has interpreted a law, a royal interpretation of this kind ought to obtain, we have both laughed at their empty subtlety and judged that it must be corrected. We define that every interpretation of the laws made by the emperors—whether in petitions, in judgments, or in any other manner—is to be held valid and undoubted. For if at present it is conceded to the emperor alone to establish laws, it is fitting that to interpret laws also be worthy of the imperial power alone. But why, if a doubt arises in lawsuits and the leading men judge themselves neither fit nor sufficient for deciding the suit, is recourse made to us through their reports? And why do our ears receive all the ambiguities of judges which happen to arise from the laws, if pure interpretation does not proceed from us?”
Therefore, this ἀπόφασις of the prince—for thus the Greeks call the emperor’s judgment—makes a law which interprets the former law. This is the best Doctor:
Who solves the knots of right and the riddles of laws.
Thus the axiom must be understood: “The prince is the sole founder and interpreter of laws.” O how great the disturbances, how destructive the subtleties, which royal majesty would remove with one utterance, if kings deigned to interpret ambiguous laws according to equity and goodness! Indeed, sometimes in interpreting they may take away, add, or alter certain things and accommodate them to the present time. Thus it was done in chapter 1, On the Oath of Calumny, and in the sole chapter On the Marriage of Clerics, in the Sixth.
§ 4. Customary interpretation is that which has now obtained by custom and use; precedents and judgments belong to it. This is chiefly employed today. Therefore, those who have devoted themselves to law in academies are trained in the imperial chamber and attend chiefly not to how variously teachers interpret a law, but to what judges pronounce in the supreme tribunal. For this knowledge is especially necessary to those about to plead causes.
§ 5. The third interpretation is that of Doctors, who expound a law not by pronouncing judgment but by giving an opinion. Their authority has now perished in great part through disagreements, nor can it be established except by laws.
In this matter, first, natural equity is considered; next, from the adjuncts, the mind of the legislator; third, the proper meaning of the words; fourth, the likeness of other laws, for a meaning of a doubtful law which conflicts with other manifest laws is false.
§ 6. There is a great controversy concerning the extension of a law, which is said to occur when a law is taken not only for the things immediately signified but is extended to
certain other matters. This sometimes happens by understanding a law of all and only those things which are comprehended by the natural signification of the words, if it is favorable and no other law or equity obstructs. Thus, when a son under paternal power repels a creditor by the exception of the Macedonian senatorial decree, we understand a daughter under paternal power to enjoy the same right. For daughters also come under the name of sons.
Next, when there is the same disposition of right in a favorable law, the words are extended to a civil signification; for adopted sons, who are sons civilly, can use the same exception.
Third, when otherwise the law would be null, absurd, or unjust unless it were understood improperly, the words can be extended to an improper signification. Thus, when an interdict is imposed upon a city, the suburbs also are understood.
Fourth, when a law is extended because of similarity or identity of reason. Many think that, when the reason is equal, those in whom it is equal are comprehended by the law.
But this must in no way be admitted, because when a determination has been made concerning one deed or punishment, it is not therefore lawful to draw it from equality to another deed. If the legislator had wished this, he himself would have done it. For example, there is a law: “If a freeborn woman has joined herself to another person’s slave, let her be a fellow slave of his.” Equality of reason does not extend the law to a freeborn man; indeed, not even identity of reason, which exists here, does so. For the gravity of the sin is the same in either sex, although it is not estimated so civilly. Certainly, the conscience of no one will be obligated by this interpretation.
Fourth, restriction is contrary to extension. It is necessary when the words of a law, taken generally, contain injustice in some deed or harm an innocent person; for the legislator is never presumed to wish to harm the innocent. Very many laws require restriction, because many things which the legislator could not foresee are accustomed to occur, and justice compels that they be excepted. For a rule fails where equity advises something else.