Interpretation versus construction in criminal law

Abstract

In the present study, I will discuss the distinction between interpretation and construction in the context of criminal law.

To that end, in the first part of the study I will elaborate the distinction in question by presenting in contrast the characteristics of interpretation and construction. Thus, I will distinguish between interpretation as a process of identifying the linguistic meaning of the legal norm and construction as a process aimed at the transformation of that linguistic meaning into legal content. Regarding the aforementioned distinction, I will conclude that interpretation is value neutral whereas construction involves the implementation of different values when offering a legal content to the interpreted norm.  

In the second part of the study, I will present the main situations in which the construction of legal norms is necessary, using examples of criminal law provisions to illustrate various types of construction.

At the end of the study, I will relate the distinction between interpretation and construction to the methods of statutory interpretation, which will lead to the conclusion that only the literal method of interpretation constitutes a tool specific for interpretation, in a restrictive sense. The historical, logical, systematic and purposive methods are actually tools specific for construction. At the same time, I will underline that construction has the nature of a secondary process of rule creation carried out by the interpreter.