Interpretation of Criminal Laws: Principles, Limits, and Practices

Interpretation of criminal laws is a central part of the legal system and raises specific questions related to legal certainty and the principle of legality. Criminal laws, like all other laws, must be interpreted to determine their content and scope. This article sheds light on the fundamental principles of interpreting criminal laws, challenges related to expansive and analogical interpretation, as well as the courts' practice in this area.

Basics of Criminal Law Interpretation

The starting point for interpreting criminal laws is the natural understanding of the provisions according to common language usage. However, in many cases, this does not provide a definite answer. Most words have fluid boundaries and a borderline area where language usage becomes uncertain. Even seemingly clear concepts can be ambiguous or ambiguous.

Unlike linguists, who can be content to state that language usage is uncertain, lawyers must also take a stance in borderline cases. To clarify the content of the law, various interpretative tools can be used:

• Statements in legislative preparatory works

• The context of other legal provisions

• Assessments of what is the appropriate and reasonable solution

• Previous case law

The courts' interpretation can in some cases lead to results that deviate from an immediate reading of the legal text. This may be due to unfortunate formulations in the law, or that the legislator has not thought through all possible situations, requiring the law enforcer to make a restrictive or expansive interpretation to achieve coherence and reasonable results.

Specific Issues in Criminal Law Interpretation

The Importance of Precedents in Criminal Law

Since punishment cannot be imposed based on customary law, one might think that precedents on the interpretation of criminal laws should only be given weight in favor of the accused, not to their detriment. But in practice, it is difficult to find such a tendency. If the Supreme Court has taken a clear stance on a legal issue, it will usually be considered decisive regardless of whether the precedent goes one way or the other.

Therefore, case law becomes an important legal source also in criminal law, which provides significant streamlining of the courts' work. But in cases of serious doubt about the sustainability of a precedent, there may be more reason to be open to a new discussion if the precedent is to the detriment of the accused.

Doubt Regarding Legal Application

It is often claimed that doubt about legal application in a criminal case should benefit the accused so that the principle "in dubio pro reo" (when in doubt, in favor of the accused) applies not only to the assessment of evidence but also to legal application.

This viewpoint has limited support in practice. When the doubt concerns legal application, the question is how a proven act should be legally assessed. If the court convicts despite the doubt, it means that after weighing up the arguments for and against, it adheres to the stricter interpretation of the law as the best.

It is difficult to see a general principle that doubt about legal application should be resolved in favor of the accused. The starting point is that the judge chooses the solution with the best reasons. It may be reasonable that the courts, when they have strong doubt about the interpretation of new provisions, choose the solution that involves the least restriction of freedom, but this is not an absolute principle.

The Requirement for Clear Legal Basis

Another formulation often encountered is that there must be a clear legal basis to impose penalties. If the wording of the law can just as easily be understood in one way as the other, the result should be acquittal.

Such statements appear in several court justifications, but the argument probably does not carry as much weight as one might immediately think. Most people do not study the criminal code, and their knowledge of criminal law mainly comes from media coverage of specific court cases. It must be sufficient warning that an ordinary reading of the law raises doubts about its understanding. Then citizens have the opportunity to arrange themselves on the safe side.

When it comes to special legislation, the situation may be different. This may involve rules that are crucial to the individual's right to trade or profession, which one can expect the person concerned to be familiarized with. In such cases, the courts also have the opportunity to acquit on grounds of excusable legal error even if the act is objectively punishable.

In practice, it often happens that the outcome is conviction even if the wording of the law does not provide a certain solution. In interpretation, weight may be given to factors not available to the ordinary citizen, such as legislative preparatory works and previous case law.

Expansive and Analogical Interpretation

A particular issue in criminal law is whether the courts have access to expansive and analogical interpretation or whether the principle of legality in the Constitution's § 96 sets an absolute limit.

It is often said that the Constitution allows for expansive interpretation but not analogy. But there is no clear boundary between expansive and analogical interpretation, and in case law, the language used is uncertain.

Practice has shown that the courts have positioned themselves relatively freely concerning § 96 of the Constitution. Although there are no Supreme Court judgments from the 20th century that explicitly admit they are based on analogy, the courts in several cases have convicted even though the law's wording in itself did not fit the case. Some examples:

• The law's prohibition against selling was interpreted to also include the transfer for consideration other than money (Rt. 1918 I p. 858)

• Legal provision on certificate requirements for steam vessels was applied to motor vessels (Rt. 1929 p. 330)

• The ban on careless handling of fire or flammable substances was applied to a case where someone forgot to turn off a stove (Rt. 1959 p. 501)

• The provision in the penal code § 45 on unconsciousness resulting from self-inflicted intoxication was applied to self-inflicted intoxication of a lesser degree (Rt. 1961 p. 547)

When is Expansive or Analogical Interpretation Acceptable?

The further one moves away from the area that the criminal provision directly addresses, the more compelling reasons must be present for the expansion to be accepted. An important factor is whether there is a complete legal analogy, meaning that from the legislator's standpoint, no reasonable reason can be conceived to treat the current case differently than the case the law directly addresses.

In modern times, analogy in criminal law is unlikely to be accepted unless there is such similarity between the cases that it would be natural to provide a common rule for them. There must be no doubt that the matter should have been included under the criminal provision.

Analogy is clearly excluded when it appears from the legislative preparatory works that it intends to be exhaustive. Analogy in favor of the accused does not raise any concerns from the Constitution's perspective.

Standards in Criminal Law

Some criminal provisions have a purely descriptive definition of the punishable act, while others provide guidance for an assessment by the court, using terms like "neglect," "pornography," or "improper conduct."

Criminal provisions that provide guidance for an assessment do not harmonize as well with the idea behind § 96 of the Constitution. When the law leaves the precise boundary setting to the court, the certainty and predictability that the principle of legality aims to provide can become quite illusory.

It cannot principially be excluded that a description of an act can be so broad and diffuse that it does not meet the Constitution's presumption that it is the legislator who is to decide what should be punishable. Such a provision could also be contrary to Article 7 of the European Convention on Human Rights, which presupposes that a provision must be so clear that it gives citizens a reasonable basis to assess their legal situation.

Nevertheless, it is not possible to avoid assessment terms in the criminal code. In many cases, the legislator is forced to use such terms because it is not possible to give a workable description otherwise. Standards also have the advantage that they inherently provide room for development - it is the prevailing legal opinion at any given time that determines what is contained in the term.

Nor should the importance of the distinction between descriptive and assessment-based definitions of offenses be overstated. Even if the law provides guidance for an assessment, the judge does not have free rein to cultivate their own opinions. The starting point must be the general assessment in society, and often it provides a fairly clear delineation.

Conclusion

Interpreting criminal laws balances between the consideration of the principle of legality and the need for reasonable and sensible solutions. Although the premise is that no one can be judged except according to law, case law has shown that courts sometimes go beyond strict interpretation of the wording to avoid unreasonable results.

The courts effectively exercise a law-making function also in the area of criminal law but are more restrained with this than in other areas of law. The main rule is that the courts choose the legal understanding with the best reasons, but the consideration for predictability and legal certainty calls for caution in extending the law to the detriment of the accused.

Modern legal developments, particularly from the European Court of Human Rights, tend towards greater precision in criminal provisions and greater caution with expansive interpretation. Nevertheless, there will always be a need for court interpretation to adapt the legislation to new conditions and situations the legislator has not anticipated.