Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Interpretation – Brief General Theory of Criminal Procedure

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Refer to: MEDEIROS, Flavio Meirelles. Code of Criminal Procedure Commented. https://flaviomeirellesmedeiros.com.br : 2019
MEDEIROS, Flavio Meirelles. Criminal Procedure Handbook. Porto Alegre: AIDE, 1987



In early times, the laws that governed men were represented by the manifestations of nature. The interpretation was carried out by the sensitive method. Some natural manifestations, felt, suggested a certain group or individual behavior. The governing law, and the only one that deserved the attention of its interpreters, was nature with its unknown forces.

In a second stage, natural forces as determinants of conduct are replaced by customs. And these then take written form. In this phase, from the written law and customs, with the interpretation, it was sought, in general, to determine the divine will.

Referring to the Mosaic law, born in the monotheistic religion of Israel, José Antonio Niño comments that the prophets, when interpreting it, “aimed more at its formal character than at its material one, from which it cannot be concluded in any way that there was opposition between the law and the prophets; on the contrary, since the law was made for a rude and imperfect people, as Jesus himself declared, its observance should rise above the materiality of the precepts to a spiritual understanding on the part of the people, in order to reach the transcendent purpose through the which the law was instituted and, for that, it would have to adapt to the intelligence of the Hebrews, leaving aside the materiality of its prescriptions, and this was the mission of the prophets, who, far from opposing the materiality of the laws, completed them through interpretations adequate to the scarce understanding of those men” (NIÑO, José Antônio, La interpretación de las leyes. 2 ed. México , Porrúa, 1974 . p. 125).

Among the Hebrews, the State was considered ordered by the deity and the law seen as the product of the will of Jehovah. On the most important questions, men consulted Jehovah and received answers through the intermediary of judges and prophets. The answers meant the divine will and dealt, in most cases, with the true meaning of the law (NIÑO, José Antônio. opus cit. p. 129).

In Greece, when aristocracy replaced monarchy, religion and law began to go their separate ways. The law began to be conceived, not as a sacred and untouchable principle, but as a rule that arises from the needs of the community. Society, its organization and evolution, were the foundation and origin of the law, and hence why it could be interpreted according to the needs of the moment of application (NIÑO, José Antônio. opus cit. p. 135 ) .

According to Sonia Seganfredo, founded in José Moreira Alves, in classical Roman law, jurists, in interpretation, used, as they do today, the grammatical and logical-systematic elements. Concluding that the meaning of the law was the same as what was expressed, the Romans performed declaratory interpretation. If the law was broader than its meaning, they restricted its application, and if, on the contrary, they found that the law was more restricted than its meaning, they interpreted it extensively (SEGANFREDO, Sonia Maria. How to interpret the law . Rio de Janeiro, Rio , 1984. p. 54).

In the Middle Ages, narrates Paulo Dourado de Gusmão (GUSMÃO, Paulo Dourado de. opus cit. p. 355 et seq.), there were a plurality of legal orders. They were the customary Germanic rights, of trade guilds, canonical, barbarian, of landlords, of cities, in force, many times, in the same territory.

This plurality of orders “constituted a threat to the political unity of what remained of the kingdoms, artificially divided, and of the nations in gestation”. This problem was solved by chance with the discovery, in Pisa, of a complete text of Justinian’s Digest.

Thus, at the end of the 12th and beginning of the 13th centuries, Romanist studies and the assimilation of ancient Roman law began. The movement starts in Bologna, with Irnerius, aided by Bulgarians, Martinus, Hugo and Jacobus. The legal texts were interpreted and adapted to the reality of the time through glosses (brief comments, notes and observations made outside the statutes). This interpretation by the glossers originated “a new Roman code, which over time became common law in Europe”.

During the Middle Ages there was interpretation (which was not just grammatical) through glosses. What seems not to have happened is the emergence of new ideas about interpretive science. The glossators’ main concern was to explain legal texts and not to explain how to explain these texts (they interpreted but were not concerned with the study of how to interpret).

It was from the 19th century onwards, with the enactment of the Napoleonic Code in 1804, that methods or schools of interpretation emerged.



The School of Exegesis, also called the exegetical, dogmatic or traditional method, emerged after the enactment, in 1804, of Napoleon’s Civil Code, as a doctrinal reaction to the arbitrariness of the previous era.

The origins of the School can be found in the philosophical-humanitarian movement of the second half of the 18th century. Beccaria, in his book “On Crimes and Punishments”, which was very popular at the time, wrote that judges “cannot have the right to interpret penal laws, for the very reason that they are not legislators”. He did not believe that the authority of laws was founded on the obligation to carry out ancient conventions. He maintained that the judge should make a perfect syllogism: “the major premise must be the general law; the minor, the action according or not to the law; the consequence, freedom or penalty”. He said that if the judge were constrained to do one more reasoning, or if he did it on his own, everything would become “uncertain and obscure”. And he warned: “Nothing is more dangerous than the common axiom that one must consult the spirit of the law.Of crimes and penalties . 2 ed. São Paulo, Atena, sdp 34 et seq.).


The school, according to Bonnecase, goes through three periods: the formation period (1804 to 1830), the apogee (1830 to 1880) and the decadence period (from 1880 onwards). The founders and representatives of the School, during the first phase, are not numerous. Among them were Delvincourt, dean of the Faculty of Law in Paris, with his Institutes de droit civil français, in 1808, later transformed into Cours de Code Civil; Phoudhon, with his Cours de droit français, 1809; Toullier with his Droit civil français suivant l’odre du Code, 1811. Add the names of Merlin, Maleville and Chabot de l’Allier. It was Alejandro Durantón, a jurist who belonged to both the first and second periods, who developed the principles of the School, suggested by the founders, in hisCours de droit français suivant de Code Civil, which began to be published in 1825 (BONNECASE, J. La escuela de La exegis em derecho civil . México. José M. Cajica, 1944. p. 36 et seq.).

Bonnecase divided the jurists of the second period into four groups: 1st) the so-called “great commentators”: Durantón, Ch. Aubry. Ch. Ran, Demolombe, Taulier, Demante, Colmet de Santerre, Troplong, Marcadé and Laurent; 2) professors, magistrates and lawyers: Larombière, Pont, Massé, Duvergier; 3rd the jurists, who despite not having produced any written work, by their teachings and influence, represent the spirit of the School of Exegesis: Bugnet and Valette; 4th) the group that disseminated, through its manuals, the principles of the School: Mourlon (BONNECASE, J. opus cit. p. 45 et seq.).

From 1880 onwards, precisely because there is nothing to add to the doctrine and methods of the Escuela, already fixed in a definitive way, everything announces the advent of an unusual precipitation in the social movement, and the decadence will not take long to be felt ( BONNECASE, J. opus cit. p. 57). Not long after, Professor Geny would find “the ground prepared to raise the banner of a wise revolution and proclaim the emergence of a new regime” (BONNECASE, J. opus cit. p. 66).

Fundamental principles

The fundamental postulates defended and supported by exegetes can be summarized in two:

1) worship of the text of the law;

2) the idea that the exclusive purpose of interpretation is to declare the will of the legislator.

Exegetes worshiped the law. They respected her. It was seen as a dogma. All law was reduced to positive law, to the law, which was capable of providing a legal solution to all the problems caused by social life. This legal fetishism led some exegetes to believe that the law had no connection with the customs and ordinances of the past. The law was self-sufficient.

In 1841, the Frenchman Bloudeau proclaimed, before the Academy of Moral and Political Sciences, that judicial decisions should be based exclusively on the law. He rejected “the false sources of decision, with which it was intended to replace the will of the legislator”. Speaking of false sources, he was referring to precedents, uses not legally recognized, considerations of general utility, equity, etc. He maintained that when the judge was faced with contradictory laws, which made it impossible to discover the will of the legislator, he should refrain from judging, consider such precepts as non-existent and reject the demand ( apud MAYNEZ, Eduardo Garcia. opus cit . p . 333).

The general principles of law, for Laurent, were nothing more than “the provisions of the Code or the rules that derive from it” ( apud LIMA, Mario Franzen de. From legal interpretation. 2 ed. Rio de Janeiro, Forense, 1955. p 16).

Bugnet declared, one day, from the top of his chair: “I don’t know civil law, I only teach the Code of Napoleon” ( apud BONNECASE, J. opus cit. p. 48).

“My faith”, declared Demolombe in the preface to his work, “is the following: The texts of the law first of all! I publish a Code of Napoleon Course. My object, then, is to interpret and explain the Code of Napoleon itself…” ( apud BONNECASE, J. opus cit. p. 141).

Phoudhon said that the tendency to resort to ancient law or Roman law to explain the Code of Napoleon should be set aside. This is how he expressed himself: “The authors of this immortal work, taking inspiration at times from Roman law, from the wisest provisions of our ancient customs, created rules that had escaped previous legislators; it is therefore neither the tradition of Roman law nor the product of customary law… but rather an entirely new body, composed of the wisest maxims, some newly conceived, others already consecrated by experience… if it were allowed to comment on it with the Roman law, or by customs… we would have as many jurisprudence as there are provinces in France…” ( apud BONNECASE, J. opus cit. p. 142).

It is from Laurent: “The codes do not leave anything to the interpreter, he has no mission to make the law: the law is done” ( apud BONNECASE, J. opus cit. p. 141).

And de Valette: “There has been so much legislation, especially in recent years, that it would be very surprising to find a case that remains completely outside the legislative prescriptions” ( apud BONNECASE, J. opus cit. p.161).

The second central idea of ​​the exegetes was that with interpretation one should exclusively investigate the thought of the legislator. The law was the expression of thought, therefore, this was what had to be investigated. Demolombe said that the function of the interpreter was to always remain attentive to legal texts, without resorting to external elements, until the thought of those who elaborated them was found ( apud SEGANFREDO, Sonia Maria. opus cit. p.56). The exegetes who admitted the use of the general principles of law or equity, did so with the caveat that these should be used only to assist in the investigation of the will of the legislator.

Aubry, in a speech he gave in 1857, pointed out: “Professors, charged with distributing legal knowledge, have the mission of protesting, moderately but firmly, against any innovation that intends to replace the will of the legislator with a foreign one” ( apud BONNECASE, J. opus cit. p.146).

This dogma of the School, in large part, is due to the principle of the division of powers conquered in the French Revolution. Making the laws belongs to the Legislative Power, and applying them, to the Judiciary. It was understood that if the law were to be given a meaning other than the will of the legislator, the judges would be usurping the Legislative Power. This thought was expressed by Laurent, in his Cours élémentaire de droit civil, when he wrote: “To them (Laurent refers to judges and writers) does not fall the work of legislating, but to the Legislative Power… magistrates would usurp the Power that the sovereign Nation had invested with this attribution” ( apud BONNECASE, J. opus cit. p.141).

The method

Depending on whether the text of the law was clear or obscure, exegetes followed one path or the other.

If the legal text was clear, it should be applied in its terms. As Maynez observes, at this juncture, the interpretation was purely grammatical. If the text of the law was obscure, a grammatical examination was not enough. It was necessary to discover the spirit of the law through logical interpretation (MAYNEZ, Eduardo Garcia. opus cit. p. 334).

With the logical interpretation, the will of the legislator was researched, using the following auxiliary means of investigation:

1) examination of preparatory work;

2) the historical tradition.

Failing these means, resort to equity and general principles of law.

Unforeseen cases were solved by analogy. The extension by analogy, observes Gény, allowed by exegetes, was the height of audacity of a system that intended to be inspired exclusively by legislative texts ( apud LIMA, Mario Franzen de. opus cit. p. 17).

As Seganfredo notes, some jurists, including Demolombe, denied the possibility of applying equity and the general principles of law. Since there was no solution to the case in the positive law, it was up to the judge to abandon it. The position is strange, since according to article 4 of the French Civil Code, the judge could not exempt himself from judging by claiming omission of the law.

Certainly, this reason why the exegetes who denied the possibility of the application of principles and equity constituted a minority. Most adopted the opposite understanding, however always emphasizing that the application of principles and equity was only justified when it was to discover the will of the legislator.


Gény, in his work, after lecturing in the first part on the School of Exegesis, in the second he starts to criticize it (“Negative Criticism of the Traditional Method”). To point out one of the shortcomings of the School, he asks: “How to discover the will of the legislator in a representative system where several parliamentarians collaborate to draft the law? The will of a collectivity contained in the law is absolutely different from that expressed in a contract or will”.

Another problem with the exegetical method is that the law interpreted by it, in a short time, with the social development and the transformation of relationships, grows old. The law “would remain immobile in the face of society in motion, it would fail in its role as a living instrument of social discipline, which it will only come to play through constant adjustment to present conditions” (BRUNO, Aníbal. opus cit. p.213 ) .

The law is not “prepared for a dying social body, but for a living social body…” (GUSMÃO, Paulo Dourado de. opus cit. p.265).

A third problem of the School is the denial of the past: “All law begins with the French Civil Code. The historical tradition, the old doctrines, nothing matters”. They imagined, observes Planiol, that the Code had no connections with the past, and they commented on it isolating it from everything else, as if it had fallen from the sky (apud LIMA, Mario Franzen de. opus cit. p . 13 ) .



As Franzen de Lima reports, what earned the Historical School this qualification “was the application of the new criticism, made by Savigny, to law, in 1814, in a controversy maintained by him with the jurist Thibaut, regarding his work on the need for a Civil Code for all of Germany” (LIMA, Mario Franzen de. opus cit. p. 21). Savigny responded to Thibaut’s pamphlet in the publication Von Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft. In this work, which was the manifesto of the School, Savigny considers codification an obstacle to legal progress (LIMA, Mario Franzen de. opus cit. p. 22):there is also in the exclusive application of a given positive law, the danger of stumbling upon the obstacle of the letter… (SAVIGNY. From the vocation of our century for legislation and the science of law. Buenos Aires, Atalaya, 1946. p. 57).

For Savigny, who developed the main ideas of the Historical School in his Treatise on Roman Law, published in 1840, law is a product of history, elaborated by the spirit of the people ( Volksgeist ). It is not born of individual wills, but of popular will. It is the result of social needs and is transformed with them. The people, says Savigny, is not just the group of citizens of a given time: “it is the unit within which generations succeed each other, a unit that links the present to the past and to the future. It is tradition that ensures the preservation of the law; and tradition is an inheritance that is transmitted through the continuous and insensitive succession of generations” ( apud LIMA, Mario Franzen de. opus cit.P. 23). Custom is superior to law. The law is the sign of right; the collective conscience is the law. The role of the interpreter is “to reconstruct the organic system of law, of which the law shows only one face”. Law, like “language, improves, gains a scientific aspect, and what previously lived in the popular conscience becomes, from then on, a matter for the competence of jurists who, in this way, come to represent the people” ( apud AZEVEDO , Plauto Faraco de Limits and justification of State power.Petrópolis, Voices, 1979. p. 24). As professor Plauto Faraco de Azevedo observes, it is Savigny himself who summarizes his ideas when he writes that “all law has its origin in those uses and customs which are usually called with universal assent, although without great accuracy, customary law; this means that law originates, in the first place, from popular customs and beliefs, and, secondly, from jurisprudence; always, therefore, by virtue of an inner and silent force, never by virtue of the will of any legislator” (AZEVEDO, Plauto Faraco de. opus cit. p. 24).

Under the influence of this doctrine, initiated in Germany, Saleilles, in France, gave contours to the theory of historical-evolutionary interpretation. For this theory, the “legal norm, once emanated, is detached from the person of the legislator, as the child is freed from the maternal womb. It starts to have a life of its own, receiving and changing influences from the environment, which matters in the transformation of its meaning” (REALE, Miguel. Preliminary lessons of law. 10th ed. São Paulo. Saraiva, 1983. p. 279). It is up to the interpreter to bring “the codes to life” with traditions, history and their evolution, and with new collective needs.

Thus, to the grammatical, logical and systematic elements employed by the School of Exegesis, the historical element was added to the interpretation.



Faced with new needs, and aiming to overcome the shortcomings of the method proposed by the School of Exegesis, new theories of interpretation emerged at the end of the last century (REALE, Miguel. opus cit. p. 280 ) . The movement of free research of law (Freie Rechtsfindung) stands out , initiated by German jurists, but whose greatest representative and systematizer was the Frenchman François Gény with his work Méthode d’interpretacion et sources em droit prive positif, published in 1899.

Gény, ponders Miguel Reale, was not a revolutionary, but a conciliator. In his book, he sought to adapt the classic positions of the School of Exegesis to the needs of the contemporary world (REALE, Miguel. opus cit. p. 280).

The Professor at the University of Nancy believed that the formal sources of law are elements that grant “the safest direction to the interpreter” (GÉNY, François. Method of interpretation y fuentes in positive private derecho . 2 ed. Madrid, Reus, 1925. p 520).

However, contrary to the exegetes, he says that it would be an excess to claim that the “positive manifestations” of law “satisfy all the aspirations of legal life”. It is not possible to deduce from the law the “full totality of solutions that imperiously demand the infinite complexity of social relations. There necessarily comes a time when the interpreter, deprived of all formal support, must surrender to himself to make the decision he cannot refuse ”(GENY, François. opus cit. p. 520 et seq. ) .

The investigation directs the judge to a field of the right to discover. The function of the judge is analogous to that of the legislator, since in reality, legislator and judge are both interpreters (A. Pillet. apud GÉNY, François. opus cit. p. 523 et seq.). Faced with the silence or insufficiency of the law, he does not hesitate to indicate, as a general line of direction for the judge, this: “he must form his legal decision in view of the same reasons that the legislator would have if he proposed to regulate the question”.

If the judge, in interpreting the law, does not find the solution, he must resort to analogy, customs, jurisprudence and tradition. Not finding the rule there either, then he must launch himself into the free scientific investigation of law. Free, because its method is not subject to legal texts, and scientific because it must be based on “objective criteria provided by the sciences”.

Among the elements of scientific research that the interpreter must go through, Gény suddenly eliminates public opinion: first of all, I will eliminate a particularly seductive idea in the social and political conditions of our time; idea that is found as essential at the bottom of the historical school (…) public opinion (…) that (…) has no title to impose its appreciation for the solution of legal problems (…) is (…) always precarious and not very sure of herself (GÉNY, François. opus cit. p. 527).

Considering the elements of justice and general utility, free investigation must seek in the naturalness of things the necessary elements to discover the rule for unforeseen cases. Through inspiration in superior principles of pure reason and absolute justice, “one can accept the following postulates: the nature of things contains in itself the laws that must govern them”.

Franzen de Lima brings us news that the use of this expression, “nature of things”, led some writers to describe Gény as a metaphysician (LIMA, Mario Franzen de. opus cit. p. 75). It turns out that the expression was not created by Gény; before him, writers such as Blutschli had already referred to it, even trying to determine its meaning: “The nature of things, considered as a source of law, is nothing more than the force of real relations (physical or psychic) ​​recognized by general opinion. : initially as a moral rule, then as legally binding” (Bluntschili apud GÉNY, François. opus cit. p. 538).

Basically, the following are the postulates of Gény’s free scientific investigation:

1st) the right is fully contained in the law;

2) the interpreter of the law must remain faithful to the will of the legislator;

3) the interpreter of the law must not allow himself to be influenced by the historical moment;

4th) if the law was insufficient, one must look for the applicable rule in the use of analogy and in customs;

5th) once these means have been exhausted, free scientific investigation must begin, with research, in the nature of things (in the relationships of life), of the applicable rule;

6th) the rule to be found by free investigation cannot be contrary to the law.



The so-called Free Law School, ponders Maynez, is yet another tendency repeatedly manifested by a series of writers. What allows grouping them in Free Law ( Freirecht ) is not the positive side, but the critical one. According to Hans Reichel, the points in common, in which the supporters of this new tendency coincide, are the following: the repudiation of the doctrine of the logical plenitude of positive law ( logische Geschlossenheit des Rechts ); the affirmation that the judge must carry out, precisely because of the insufficiency of the texts, a personal and creative work; the thesis that the role of the judge should increasingly approach legislative activity (MAYNEZ, Eduardo Garcia. opus cit. p. 347).

It is when Von Jhering, in his “Spirit of Roman Law”, protests against the abuse of logical abstractions, “which imprison the law in the august scope of the jurisprudence of concepts” and, “unfurls the labaro of his teleological doctrine”, that Franzen de Lima grants him the title of inspirer of the movement.

Among others, the following jurists are cited as supporters of the free law movement: Ernst Fuchs ( Juristischer Kulturkampf, Karlsruhe, 1912), Eugen Ehrlich ( Grundlegun der Soziologie des Rechts, Munich, 1913), Rudolph Stammler, Gustavo Radbruch and Germán Kantorowicz.

It is the work of the latter, Gérman Kantorowicz, published in 1906 and entitled The fight for the science of law , the most representative and known of the so-called Free Law School. Using the pseudonym Gnaeus Flavius, Kantorowicz, with his work Der Kampf um die Rechtswissenschaft, started ardent discussions among jurists in Europe.

Referring to the work of Kantorowicz (KANTOROWICZ, Germán. The fight for the science of law.Buenos Aires. Losada, 1949) considered the most representative or the Free Law program, we will now follow, step by step, the ideas contained therein. In February 1906, Kantorowicz said, in the preface, that “a new movement arises in the science of law”, which “exhorts jurists who believe in its ideals to make an examination of conscience”. Already in the introduction, he states that the dominant opinion imagines the jurist as an official who, armed with a typewriter and a State Code, through merely logical operations and a secret technique, discovers, with absolute accuracy, the solution to theoretical and real legal problems. But, “a new movement arises”, and this “has no other purpose than to overthrow all the old ideal and erect a new ideal, opposed in every point to the traditional one”. Free Law is a resurrection of natural law in modified form. “The traveler in a foreign country becomes familiar with the language, history, arts and customs, but not even in his dreams does he think of opening any Code”. He lives according to Free Law, according to the opinions that surround him and his judgment. “Thus Free Law forms its broad circles and lives independently of State law. But the opposite statement cannot be made. Free Law constitutes the soil from which State law springs”. The function of the judge is to look for the solution to concrete cases, not in the law, but in facts, in reality, in their values ​​and needs. The best solution is always the right one, contrary to the texts or not. The judge’s task is not limited to revealing the law, he can create it. Kantorowicz, at the end of his book, lists and contests, one by one, the postulates that he considers traditional: “all decisions must be based on the law”; “the judge must be a servant of the law”; “any imaginable case must be resolved with the exclusive assistance of the law”; “every decision must be substantiated”; “the sentence must be objective and not subjective”; “the sentence must constitute a rigorously scientific work”.

A criticism that is usually made of Free Law is that, with its proposal to give wide freedom of interpretation and, consequently, of decision to judges, an absolutely necessary element for the development of social relations is sacrificed, which is security. Its supporters are also accused of being retrograde, when they want to go back to the past, substituting the will of the law, which represents the will of the community, by the individual will of the judge.



It is not just the law that is interpretable – Maynes doctrine – but every expression that has a meaning: an attitude, a phrase, a philosophical text, a myth, an allegory, etc. can be interpreted. (MAYNEZ, Eduardo Garcia. opus cit. p. 325.).

In general terms, interpretation can be defined as the activity of someone who investigates the meaning of an expression.

Law is the most common expression of law. It is through it that the set of orders and norms that constitute the law are externalized and become perceptible to the human senses. The law is the sign which the law uses to express itself.

To interpret the law is to look for the right that is contained in it. It is to investigate and determine the meaning and objective sense of the law. It is to look for the norm that is contained in it. The interpreter is the intermediary that stands between the law and its meaning. The interpretation of the law can be done by anyone. Every citizen, without realizing it, is, in social life, interpreting and applying the law. However, with reference to the judge, the official enforcer of the law on social relationships, interpretation is presented as indispensable.

Hermeneutics and interpretation, etymologically, mean the same thing. Today, they are expressions that have different meanings. Hermeneutics is considered a broader term than interpretation. Hermeneutics is the name given to the science of interpretation, the science that studies the methods, rules and principles related to interpretation in a broad sense. Interpretation in the broad sense encompasses interpretation in the narrow sense, integration and application. Interpretation in the strict sense is the interpretation of the law, it presupposes the law. It is the work of him who investigates the meaning of the law. Thus, interpretation in the strict sense is distinct from integration and application.

Integration is necessary to apply the law when there is no regulatory law for the specific case It is necessary when, in other words, it is not possible to find the applicable norm through the systematization of the entire system. It is the process by which law is clarified by law; norms, by the legal system in its entirety. It employs analogy and the general principles of law.

Application is another term whose meaning should be made clear. With the interpretation of the law and the integration of the law through the use of analogy and the general principles of law, the norms applicable to the legal relationship are inquired and revealed. With the application, “it is necessary to use, in each case, the norm that is adequate” (TORNAGHI, Hélio. opus cit. v. I, p.120). The norm is discovered by the interpretive and integrative processes, and life is subjected to the norm by application.

A doctrinal problem, which has yet to be resolved, is the question of whether interpretation is a creative activity or merely a cognitive one. Does the interpreter create new law or just know and reveal the pre-existing law? Among those who understand that there is creation is Mezger, who maintains that, through interpretation, there is a formation of concepts that creates new values ​​from the existing material in the law, and, also considering the emotional aspect of the mental process in which the interpretation takes place ( apud FRAGOSO, Heleno Cláudio, in Lições . opus cit.p.90). Professor José Salgado Martins also participates in this current, when he teaches that “legal values ​​must have the necessary objectivity, in order to be susceptible to communication and experience in the social environment. This objective character does not, however, exclude the originality with which the legal value, as a kind of ethical value, is felt and interpreted. There is something profound, personal, incommunicable, which is only part of another’s experience. Therefore, the interpreter is, to a certain extent, a creator, when he submits the legal object to his critical reflection and conceptualizes it” (MARTINS, José Salgado. Direito Penal . São Paulo. Saraiva, 1974. p. 98).


The aphorism according to which the clear law does not deserve interpretation ( in claris non fit interpretatio ), with the evolution of the ideas of legal hermeneutics, lost all meaning. The in claris non fit interpretatio was directly related to the outdated idea that interpretation only took place when the legal texts were obscure. It happens that only through interpretation can one conclude that the text is clear. Sometimes, a laborious interpretative investigation is necessary to conclude that the text is really clear as it seemed at first.

Normally, the doctrine presents the interpreter with the following steps to go through in order to find the legal norm: 1st) the interpretation of the law; 2nd) the analogy; 3rd) the general principles of law. The general principles of law are indicated as the last resort of the interpreter in the investigation of the applicable law. The truth, however, is different. The interpreter of the law cannot carry out his task correctly without paying attention to the principles of law. These, meaning “directing and greater truths” of the legal system, must guide and lead the interpreter’s paths in the normative field. Interpretation does not dispense with integration. Interpreting itself, it integrates. And, further on, the opposite is also true: by integrating, one interprets. In the absence of a legal text, the norm is revealed through the general principles of law,

The interpretation of criminal procedural law has some peculiarities, but these are not able to divert it from the method, elements and interpretative rules common to other branches of law.



Object of interpretation is not the will of the legislator. If the investigation of the will of the creator of the law were considered essential in the interpretative task, the latter would not be able to meet the new demands resulting from social evolution. The will of the legislator is only one of the elements worthy of attention in the interpretation.

The idea of ​​the “fair right” is unreliable. If the law were to bend to the interpreter’s subjective ideals of justice, it would fail in its important function of granting legal security to the environment on which it acts.

Before indicating the object of interpretation, some brief considerations regarding the meanings of expressions are necessary. Law and norm are words usually used as synonyms. In a more restricted sense, and which is the one we use, they are not confused. In this sense, law is the expression of the norm, it is the sign that the norm uses to express itself, it is the written provisions of the Codes and extravagant laws, and the norm is the rule, the principle, the order, the law that is contained in the law. The law contains and the norm is contained.

After this parenthesis, we return to the initial theme. Object of interpretation is neither the will of the legislator nor the “just right”, but the knowledge of the norm contained in the law. Object of interpretation is the revelation of law. Interpretation seeks to discover the entire content of the law so that its full extent can be determined. The law is investigated in order to know its content, in order to know which cases it applies to and how it is applied (so that the extension or scope of the law can be known). This possibility of expansion, of investigating the scope of the law, results from its general character (not casuistic). The question of the content of the law, added to that of its extension, means questioning the sense or meaning of the law. Thus, in short, the object of interpretation is knowledge of the sense (meaning or will) of the law.

The meaning that must be questioned, as has already been said, is not to be confused with the one given by the will of the legislator. What must be inquired, in the interpretation, is the meaning of the law for the historical moment in which it is interpreted, its current meaning. The current meaning of the law is that which best meets the social needs of the present. It is through the evaluative interpretation that the norm that best meets reality is known in the law.

As proclaimed by Nélson Hungary, “the time of rigorous logical technicality, which abstracted the law from its contact with the real world and social conscience, has passed. The judge can and must interpret the law to the influx of supervening scientific and practical principles, in order to adapt it to the new aspects of social life, since mens legis is no longer sought in the legislator’s thinking, at a more or less remote time in that the law was drawn up, but in the evolved spirit of society and in the immanent legal sense, which changes with the advancement of civilization (HUNGRIA, Nélson. opus cit. v . I, tome I, p. 88).

Knowledge of law presupposes knowledge of social life. It is reality that informs the legal system. One must know the needs of the material on which the law acts, so that, in an evaluative analysis, the best meaning can be extracted from it. As Judge Brandeis advised: “no law, written or not, can be understood without full knowledge of the facts that gave rise to it or to which it will be applied. The logic of words must yield to the logic of realities” ( apud ESPÍNOLA FILHO, Eduardo. opus cit. v. I, p. 194).

Adapting the law to new realities does not mean violating it, but using its natural power to expand or compress. As Espínola Filho comments, it is necessary to “understand the legal norm as a social phenomenon, which operates in the full effervescence of society’s life and bends to the yoke of needs, which emerge from this life, incessantly. Social relations, due to the exuberance and rebelliousness of their nature, cannot subject themselves to being bound by the steel corset that they want to apply backward precepts to them; if that were possible, all the aspirations of real life would be crushed, legal commerce would be impeded and the legal order, failing in its mission of, with wise discipline, increasing the progress of societies, would become an obstacle, a deplorable constricting element.an increase, or a decrease, of the content of each precept, in the correspondence of the changes operated in social relations, extinguishing some, others being created” (ESPÍNOLA FILHO, Eduardo. opus cit. v. I, p. 189).

It is necessary to insist that the meaning of the law must be investigated in the law itself. The conformations of the norm that life demands must be contained in the law, that is to say, the expansive or retracting power of the law must include the required norm. If the norm demanded by life is the opposite of that contained in the law, the latter is applicable and not the former. The interpreter’s freedom circulates within the limits of the legal provision. The interpreter is not granted the right to violate the law to extract meaning from it that it does not have, on the grounds that it is unjust. For the sake of legal certainty, the power to revoke or modify unjust laws rests with the legislator, never with the interpreter. On the subject, Master Nélson Hungary ponders that “the judge cannot become a reformist philosopher, an incipient saint or a sociologist in the office, to pretend to correct the law according to his worldview, its mystique or its theorizing. It has to apply the positive law, the law expressed or latent in the law, and not the law ideally conceived through abstract speculations and metaphysical lucubrations. It can and should humanize the generic rule of the law in the face of concrete cases of a special nature, or seek to reveal what the concise letter of the law could not or did not know how to say clearly; but this within the very latitude of the meaning or scope of the texts, and never against them, or replacing them with what they arbitrarily understand should have been written, according to their personal ideology” (HUNGRIA, Nélson. It can and should humanize the generic rule of the law in the face of concrete cases of a special nature, or seek to reveal what the concise letter of the law could not or did not know how to say clearly; but this within the very latitude of the meaning or scope of the texts, and never against them, or replacing them with what they arbitrarily understand should have been written, according to their personal ideology” (HUNGRIA, Nélson. It can and should humanize the generic rule of the law in the face of concrete cases of a special nature, or seek to reveal what the concise letter of the law could not or did not know how to say clearly; but this within the very latitude of the meaning or scope of the texts, and never against them, or replacing them with what they arbitrarily understand should have been written, according to their personal ideology” (HUNGRIA, Nélson.opus cit. v. I, volume I, p. 88).

A subject that deserves attention is the one in which the following question is proposed: can the correct interpretation only lead to one result, or can it lead to a plurality of results?

Kelsen is positioned in the sense that interpretation can lead to multiple solutions. This is how the professor from Vienna expresses himself: “If by interpretation we mean the fixation by means of knowledge of the meaning of the object to be interpreted, the result of a legal interpretation can only be the fixation of the frame that represents the right to interpret and, consequently, , the knowledge of the various possibilities that exist within this framework. Therefore, the interpretation of a law should not necessarily lead to a single solution as being the only correct one, but possibly to several solutions that – insofar as they are only measured by the law to be applied – have equal value, although only one of them becomes positive law in the act of the law-applying body – in the act of the court, especially.work cit. p. 467).

The contrary position is more often adopted by doctrine. It is normally understood that the correct interpretation can only lead to a single solution. Among those who think so is the eminent proceduralist Hélio Tornaghi, for whom “the various interpretations that a law may give rise to do not have the same value! One of them, the right one, is worth everything: the others are worth nothing! It is necessary not to pass from the order of facts to that of law; from the physical order to the logical order: in fact, a norm can lead to different understandings; but logically only one of them is true. The circumstance of being able to take a wrong interpretation for granted, or of establishing perplexity in the interpreter’s spirit, does not mean that the wrong becomes right or the doubtful becomes indubitable” (TORNAGHI, Hélio. opus cit. v . I, p.134).

In our understanding, the interpretation can either lead to a single solution or to several.

After going through the literal, systematic, historical and comparative elements, the interpretation can suggest more than one solution, more than one norm.

Examining also the social reality and its claims, this, too, can claim more than one solution or norm.

Let’s say that with the interpretation that exhausts all the elements, except the value, it is verified that the law contains the norms “a”, “b” and “c”, and that, the needs of reality claim, alternatively, the norms ” c”, “d” and “e”. In this case, the interpretation, adding the evaluative element, will arrive at a single solution, as there is only one correct interpretation, which corresponds to the one that arrived at norm “c”. If norms “a” or “b” were applied, there would not be contra legem interpretation, but incorrect interpretation. Incorrect because it would not be considering the social reality and its requests, it would not be considering the evaluative element (which rule contained in the law has the greatest value to regulate the relationship), which is part of the interpretative process.

The above hypothesis is the interpretation that arrives at a single correct solution. Another hypothesis. Let’s say that, with the interpretation that also exhausts all the elements, except the evaluative one, it is verified that the law contains norms “a”, “b” and “c” and that reality claims norms “b”, “c ” or “d”. In this case, the evaluative element will serve to exclude norm “a” and to indicate norms “b” and “c” as the ones that best meet reality. Any one is applicable. The interpretation that arrived at norm “b” is as good and correct as the one that arrived at norm “c”. We are faced with the interpretation that includes more than one solution. There are a plurality of interpretations, with more than one possible and viable.



The interpretive work is carried out with the help of so-called interpreting elements . They are the following: literal, systematic, historical, comparative and evaluative.

What jurists usually call a logical element is nothing more than the gathering of these elements to the exclusion of the literal.

The use of one element does not exclude the use of another. All complement each other. It is not possible, for example, to examine the literal element without the aid of systematic and historical elements. Only these will be able to clarify whether the word contained in the legal text has common or technical meaning. In any interpretation that claims to be correct, all elements need to be examined, if only to conclude that one or the other does not deserve to exert influence on the interpretative result.

Some authors tend to divide the interpretive process into phases. According to them, the first phase is the study of the literal element and, the second, the logical element. It does not seem that this understanding is correct. There are no such stages. It is not feasible to pre-establish an order for examining the elements of interpretation. One does not go from one element to the other, in pre-ordered succession, because, as we said, they all complement each other, focusing on the analysis of the other. It is not for the doctrine to establish rules regarding the succession, as this varies from case to case, obeying only logic and common sense.

We also disagree with the authors who maintain that it is not correct to speak of literal, systematic, comparative interpretation… There is nothing wrong with calling a certain interpretation systematic. With this qualification, it is only meant that in a given interpretative process the use of the systematic element predominated, this being the element that exerted the greatest influence on the result.

Once these initial notions have been elaborated, the elements of interpretation are examined, one by one.

literal element

The literal element is that “which is available to everyone, both the jurist and the profane” (MARTINS, José Salgado. opus cit. p. 101).

With it, the meaning of the law is investigated through the analysis of the meaning of the words used in the legal text. It has two aspects: the lexicographic and the syntactic. By the first, the meanings of the words in their unit are verified, and, by the syntactic, the meaning of the words, one in connection with the others. Therefore, Carnelutti was right when he said that “one of the jurist’s main books is the dictionary” (CARNELUTTI, Francisco. opus cit. tomo I, p. 122).

The result of the analysis of the literal element is the thought of the law as it is in the law , a result that may not correspond with the thought as it is in the law . The literalness of the text may not correspond with your will.

In examining the words, some caution is necessary, as some are not used with the usual meaning, but with the technical meaning. “When the law speaks of a complaint , it must be understood as such the vestibular piece of the private criminal action. This is its technical-legal meaning. However, commonly, this term is used to designate the notitia criminis that is brought to the attention of the police authority. It is common to say that so-and-so went to report to the police. Complaint, then, is used in its ordinary sense” (TOURINHO FILHO, Fernando Costa. opus cit. v. 1, p. 160).

It is the systematic and historical elements that are really important for determining whether the expression has a technical or usual meaning, and, if it is technical, for clarifying what that meaning is as well. With the systematic element, the technical meaning of a word contained in a given provision is investigated in other legal provisions. It is with the historical element, writes Caldara, that the interpreter knows the “evolutionary development, the history of a word, in order to ascertain what it was called to express” (apud MAXIMILIANO, Carlos. Hermeneutica e aplication of law . 5th ed. São Paulo, Freitas Bastos, 1951. P. 140).

There are some drills that help lookup the literal element. Here are some of the best known:

“In principle, there are no superfluous words in the law.”

“The singular does not exclude the plural, nor the masculine the feminine”.

“If the meaning of the word has changed over time, that of the time when the text was definitively written should be preferred” (Bernardino Carneiro, apud MAXIMILIANO, Carlos. opus cit. p.141).

The rule according to which “when the law is clear, its text cannot be deceived on the pretense of knowing its spirit” is meaningless. Among other writers, Chiovenda is one of those who support it when he maintains that “logical interpretation can also correct the material expression of the law. Faculty that can only be used in exceptional cases and with extreme caution; that, in the simple conflict between the letter and the spirit of the law, the former should prevail, as a rule…” (CHIOVENDA, Giuseppe. Institutions of civil procedural law. 3rd ed. São Paulo, Saraiva, 1969. p. 99).

No law can be considered clear until the interpretation has been exhausted. And the interpretation only ends after all the elements have been researched. If there is a conflict between the express meaning of the device and its spirit, the latter must always be preferred. Unlike logical interpretation, which requires solid legal knowledge, literal interpretation is relatively easy and within reach of a greater number of interested parties. But from there to granting it greater security than the interpretation that is complemented by the logical element, it goes a long way. Only the integral interpretation, the one that brings together the literal and logical elements, can grant the desired legal certainty, since only it is capable of knowing the correct meaning of the law. It is the sentence of Celsus contained in the Digest: “knowing the laws is not in knowing the words,work cit. v. 1, p. 200).

systematic element

With the systematic element, the meaning of the law is investigated using the law itself.

Legal provisions are not isolated. There is a unity in the entire normative order that makes some correlate with others, some complement others.

The legal provisions are not separate beings and indifferent to the legal order of which they are part. They are beings involved in legal reality. They do, complete, give and receive from the system. It is legal symbiosis.

As Salgado Martins writes, “the validity of the norm is less in its formal effectiveness than in its coordination and harmony with the system as a whole” (MARTINS, Eduardo Salgado. opus cit. p. 102 ) .


Lenio Luiz Streck: It is paradoxical for a binding precedent to say that a law is unconstitutional . Conjure

Lenio Luiz Streck: If the Supreme Court must obey the voice of the streets, what is the value of the Constitution? Conjure

Marco Aurélio Mello: 25 Years of Constitutional Interpretation – a history of the realization of fundamental rights . State.

Renato Marcão: The Precedent of binding effect contradicts republican principles . rightnet.com.br.

historical element

The importance of the usefulness of the element is highlighted by Nélson Hungary when he states that “the law is not a spontaneously generated entity or sine matre creata . Apart from cases of legislative pathology , all laws have their precedents, their stages of formation, their vicissitudes in time and space, their evolution, their gradual improvement. Without knowledge of this historical process, the interpreter can fall into serious anachronisms or mistakes” (HUNGRIA, Nelson. opus cit. v. I. tomo I, p. 87).

With the historical element, the conditions, reasons and needs that gave rise to the law are investigated. It is asked if, with historical evolution, these circumstances persist, if they have decreased or increased. Decreasing, increasing or disappearing the reasons or initial conditions, the extension of the content of the law, necessarily, will not be the same, it will change.

This investigation is not only carried out through the study of preparatory work, committee discussions, opinions, justifications of the law and proposals for amendments, expositions of reasons, but, mainly, through the study of the evolution of the legal institutes of the which the law resulted.

comparative element

As for the comparative element, “it is always useful to compare national and foreign law, when they coincide in adopting a certain principle. Even if one is not directly inspired by the other, it is obviously interesting to know how it has been understood and applied in other countries” (HUNGRIA, Nelson. opus cit. v. I. tomo I, p. 89 ) .

evaluative element

It is through the evaluative element that the best meaning contained in the law to regulate reality is examined. This inquiry begins, in fact, where, with the help of concepts and methods from Sociology, Morals, Economics, and other sciences, it is investigated which rule best meets your needs. From reality we move to the level of the law, in whose content the claimed norm will be sought.

It is essential to assess the value of the result of the interpretation. Law is part of culture, indissolubly linked to life. As long as possible, it must be interpreted in order to satisfy the demands of life, regulated by him (Enneccerus, apud ESPÍNOLA FILHO, Eduardo. opus cit. v. I, p. 196).

It is necessary that procedural life be concerned with the real truth, protect the innocent, allow the contradictory, offer security and, fundamentally, pursue the just ideal. They are principles and purposes of criminal procedural law that are in harmony. The most valuable norm to be found in the law will be the one that best meets the need of the procedural fact and the balance of the principles and inspiring purposes of the law.


authentic interpretation

Classified according to its author, the interpretation can be authentic, judicial, doctrinal or administrative.

Authentic interpretation is carried out by the legislator, through the so-called interpretative laws. Interpretive law, in relation to interpreted law, can be posterior or contextual. It is contextual when the interpreting device belongs to the same legal text as the interpreted device.

It lends, as a rule, retroactive effect to the interpretative law. The reason for this effect, clarifies Carnelutti, is that the authentic interpretation comes from the author of the interpreted declaration, body form with her, since the words of the interpretative declaration are combined with those of the interpreted declaration . In reality, it is not the interpretative laws that provide for the leyes interpreted in the sense clarified by the leys that provide their interpretation (CARNELUTTI, Francisco. opus cit. tomo I, p. 118).

There are those who maintain that authentic interpretation is not exactly interpretation, claiming that interpretation is investigation and discovery of the meaning of the law, and interpretive laws do not investigate or reveal, they only impose. In our view, the fact that interpretive law obliges or imposes does not mean that it does not represent interpretation. Judicial interpretation also obliges (it is true that only for the case under trial), and this circumstance does not exclude its character of interpretation. The interpretative law, while it boils down to clarifying the meaning of another law, without substantially altering it, does not represent a new right . The mere fact that it imposes or obliges does not exclude the circumstance that it reveals the meaning of the law. Revealing and clarifying the legal texts, there is nothing else there but interpretation.

court interpretation

Judicial interpretation is that which results from the activity of judges applying the law to the cases submitted to them. While the authentic interpretation is endowed with general obligation, the judicial one only obliges the case that is being judged, except for exceptional legal hypotheses. Despite the lack of binding force, judicial interpretation is of great importance, as it exerts influence on judges to the extent that jurisprudence is the source of law that assists in the interpretive task. Paulo Dourado de Gusmão observes that knowledge of the interpretation provided by the judges is fundamental, because only with it can one know, with less possibility of error, which solutions are being given and which rights are actually guaranteed (GUSMÃO, Paulo Dourado de . opus cit. p. 273).

doctrinal interpretation

Doctrinal interpretation is that which comes from professors, scientists, philosophers, jurists, in short, from law scholars, and which is known through their works, comments, theses and opinions. It does not bind the judge, however it exerts a strong influence on him when it is a matter of the common opinion of doctors ( comunis opinio doctorum ), or when it belongs to a writer endowed with recognized authority.

administrative interpretation

Administrative interpretation, according to Paulo de Gusmão, is that established by the administrative bodies, it is done through dispatches, ordinances, decisions, circulars or regulations of the administrative authorities, when they indicate the meaning that should be given to the law (GUSMÃO, Paulo Dourado de. opus cit. p. 273).


declarative interpretation

Once the interpretative work is carried out, using the elements that help it (literal, systematic, historical, etc.), the discovered meaning of the law, that is, the result of the interpretation, can be of three types: declaratory, extensive or restrictive.

The interpretation is declarative when its final result coincides with the literality of the text. Hence why this interpretation is also called coincident or confirmatory (CASTILLO, Niceto Alcala-Zamora; LEVENE, Ricardo. opus cit. v. I, p.149). In it there is a coincidence between the will of the law and what is expressed therein; the final result confirms the literal meaning of the text.

extensive interpretation

An interpretation is said to be extensive when its final result is broader than the express meaning of the law – minus scripsit quam voluit . In the extensive interpretation, the norm is discovered which is not expressed in the law, but which is implicitly contained therein. Nothing is added to the law, nothing is transformed or altered, only its real meaning is uncovered.

The extensive interpretation uses arguments a Maiori ad mines (what is valid for the most, is valid for the least), and a minori ad maius (what is not valid for the least, is not valid for the most).

One must also, in the extensive interpretation, be aware of the so-called ad absurdam argument . It is from Nélson Hungary the lesson that the best way to test the validity of a legal principle is to verify that it does not lead to absurdity.

Extensive interpretation and analogy. In favor of the accused

First, it should be noted that it is a mistake to think that there is no analogy in criminal law. Exempt criminal rules of a general character admit the analogy. Once registered, in the case of criminal procedural law, both the extensive interpretation and the analogy to the detriment of the accused are authorized. However, it is necessary to take into account that the principles submerged in the criminal procedure are like the current of a river. They flow slowly but steadily, but stubbornly they flow in a certain direction, and they cannot be diverted, or even stopped. Giovanni Leone defines the principle of king favoras the one by virtue of which all procedural instruments must tend towards the declaration of certainty of the accused’s non-responsibility; it concerns not the state of personal freedom, but the declaration of certainty of a position of merit in relation to the news of the crime. (LEONE, Giovanni. Opus cit., v. I, p. 188.). While the in dubio pro reo governs the interpretation of the facts, the favor reiregulates the interpretation of the law, and favorably to the accused. In this way, we insist, the extensive interpretation and the analogy against the accused are legitimated. However, limited. There can be no relevant invasion of the constitutional meaning of the process as an individual guarantee, that is, in the space occupied by the extended norm or similar, there can be no attack on the principles of the process that derive from its constitutional meaning as a guarantee of the individual, that is, principles of the adversarial system , due process, the double degree of jurisdiction, the independence of the judge, the in dubio pro reo, the initiative of the parties, the “ne eat judex ultra petita partem”, the natural judge, the presumption of innocence, the ample defense and of the accusatory system. It goes without saying, the extent of the meaning of “relevant encroachment” to matter in extensive interpretation or invalid analogy depends on examination on a case-by-case basis. There is a limit to which each principle can yield. As for the extension of norms that deal with precautionary detention or the use of analogy with them, this concerns the integrity of the principle of due process.


Flavio Meirelles Medeiros: The presumption of innocence does not end at the second instance .

restrictive interpretation

The interpretation is of the restrictive type when, having completed the exegetical task, it is verified, comparing the words expressed with the meaning of the law, that the legislator said more than he wanted plus dixit quam voluit The interpretation is restrictive when, for example, “the legislator says in Article 271 of the Code of Criminal Procedure that “ the assistant is allowed to propose means of proof, and it must be understood that testimonial evidence is excluded, since otherwise the rule according to which the prosecution must offer the list of witnesses (if it wants to do so) would be circumvented, when filing of the action (article 41), as can be seen from the reading of art. 397 of the same procedural diploma. Pay attention to the fact that the assistant for the prosecution enters the court after the establishment of the criminal instance, as stated in art. 268 of the Code of Criminal Procedure, and not before” (TOURINHO FILHO, Fernando da Costa. opus cit. v. I, p. 161).

The so-called abrogating interpretation, which derives from the incompatibility between the expression of a law with another norm or legal principle, resulting in the total exclusion of the literality of that first one, is nothing more than a kind of restrictive interpretation. In this case, instead of, as in the most common restrictive interpretation, there is a partial diminution of the express content of the provision, there is a “complete diminution”, which excludes literality.


Gilmar Mendes: Collision of fundamental rights: freedom of expression and communication and the right to honor and image . senado.leg.br.

Gilmar Mendes : Limitations of revision: stony clauses or guarantees of eternity – legal possibility of overcoming them . gilmarmendes.com.br.

analog interpretation

Notion: An analogical interpretation is the one in which the legislator makes use of comprehensive formulas of the type applied to similar or analogous facts or by other means .



Are there loopholes in the law? And in law? These questions have preoccupied jurists for some time. Some maintain that neither the right nor the law have loopholes. Others, on the contrary, understand that both one and the other have them. There are also those who admit loopholes in the law, but not in the law.

The reason is with the latter. The potentiality of the law, as it is a human work, is limited. There are cases whose solution is not foreseen or expressed, even implicitly, in the normative provisions. These are loopholes in the law.

The law, however, has no loopholes. The legal norm claimed by the social relationship can always be found in the general principles of law, if only in those broader and “general” principles, such as those of justice and security. The subjective right – the possibility of acting – always exists, because everything that is not prohibited can be practiced. And, it should be noted, even where there is a prohibition to act, the subjective right, the subject right not to act, is present. Even where there is a duty to act, subjective right is present. Duty is, in principle, right. Whoever must pay, can pay, has the right to pay.

When, with interpretation, the legal solution to a hypothesis is not determinable, there is a gap in the law. It is then necessary for the investigator to look for the solution with the use of analogy.

The expression analogy is normally understood as similarity. In its technical sense, it means a process of integration of the legal system by which the solution given by law is extended to a foreseen case to another, not foreseen, but similar one.

As an instrument of integration of the legal order, there are two presuppositions of the analogy: the lack of regulation for the unforeseen hypothesis and the similarity of the foreseen hypothesis with the unforeseen one.

There is only use of analogy when the law does not provide the solution for a given hypothesis. Extensive interpretation is not to be confused with analogy. In that, the norm is contained in the law, not expressly, but implicitly. In this, the device does not provide the solution for the given case, neither in its words nor in its content. While the interpreter, in his work, starts from the law, the hermeneutic, when integrating, starts from the silence of the law. Part of that silence “full of voices” of which Couture speaks (COUTURE, Eduardo. Interpretation of procedural laws. São Paulo, Max Limonad, 1956. p. 54).

It is also necessary, as we said, the similarity between the regulated and the non-regulated case, for the use of analogy. Everything that is part identical and part different is similar. However, the identical part has to be essential, or as Miguel Reale writes, the non-similar part cannot represent an “essential differentiating note” (REALE, Miguel. opus cit. p. 293).

The identity that the analogy presupposes is not absolute but partial. The diagram below can elucidate the difference between identity and similarity:

Identity: x=a+b+c+dey=a+b+c+dx and y are identical

Similarity: k=a+b+c+dez=a+b+c+ek and z are similar

The analogy is based on the well-known aphorism ubi eaden ratio , ibi eaden juries dispositio (where there is the same reason for deciding there must be the same disposition of law). The identity, therefore, required for integration through analogy, is that of reasons.

“When filling the gap must be done with an extra-criminal rule, that is to say, with a heterogeneous rule, one can speak of heterointegration. And we give examples: suppose that the criminal judge is a close friend of the defendant’s son. He wants to refrain from running into the process. Can you do it? Under the terms of the criminal procedure law, no. Article 254, which deals with the causes that may give rise to suspicion, does not deal with the intimate friendship between the judge and the defendant’s son. Nor did he admit, as a cause of suspicion, the intimate motive. However, the sole paragraph of article 135 of the Code of Civil Procedure provides that the judge may abstain from working in the process for intimate reasons. In view of this, if he feels really embarrassed to act in the deed, he may invoke the provisions of article 135, sole paragraph of the civil procedural statute. And so a gap in the criminal procedural statute would be filled with a norm of the civil procedural statute. Heterointegration, therefore. In fact, there is no reason to prevent the criminal judge from invoking an intimate reason to refrain from working in the process. If you can do it in civil cases, why can’t you do it in criminal cases? (TOURINHO FILHO, Fernando da Costa. opus cit.v. I, p. 165). We note that the reference made above by Tourinho Filho is to the previous CPC, which does not remove the validity of the example. Integration is resorted to when, given the absence of the law, the problem cannot be resolved by interpretation. However, it is necessary to clarify that the use of analogy (and even the general principles of law) in integrative work does not require interpretation. Only by knowing the real meaning of the devices, which is done with interpretation, can they be used to regulate unforeseen cases.

General principles of law

Finally, when the hermeneuticist does not find a case foreseen in the law similar to the case not foreseen, he must look for the applicable norm in the general principles of law. He will have to look for the solution, not in aphorisms or natural law , but in the greater and structural rules contained in the legal system.

This is what the general principles of law are: structural norms that support the order, discovered through the generalization and progressive abstraction of the current law.

From the unavailability of the object of the process derive the principles of legality, real truth, officiality, the official impulse and the unavailability of the process itself.

From the criminal procedure as an individual guarantee result the principles of the contradictory, due process, the double degree of jurisdiction, the independence of the judge, the in dúbio pro reo, the initiative of the parties, the binding of the judge to the request, the natural judge and, especially, the broad defense.

It is interesting to note that the concerns of criminal procedural law with the unavailability of the substantial legal relationship and with the meaning of the process as an individual guarantee, sometimes complement each other and sometimes oppose each other. Thus, the hermeneutic has the burden of investigating in the legal order, when integrating, which rule best meets the balance of these two fundamental postulates. Better to find the norm that satisfies both the unavailability of the object of the process and its significance as a guarantee, but there will be occasions when, irremediably, you will have to give in to one principle to make the other prevail.

Interpretation, analogy and principles. The sequence:First there were natural laws. Then came customs and morals. To elaborate the codes, the men, gathered, elaborate the principles that would guide them. Next, they formulated their various provisions. In the interpretation of the law, one should start the other way around. At first, the solution is sought by interpreting the law. Not finding a device that regulates the specific case, without escaping the law, a similar provision (analogy) is used. Only if there is no similar norm, the general principles are used. The hermeneut is not given the right to depart from the law or to climb over analogy to solve the problem with principles. Principles, unlike law, are closer to morality (morality implies a subjective choice) and natural laws. Principled law runs the risk of suffering the effects of subjectivity, of the interpreter’s prejudices, morals and particular ideology. The record is that although this procedure is successive, it is not watertight. When interpreting the law, one makes use of analogy and principles. When it integrates with analogy, devices are interpreted and principles are observed. When creating norms with principles, devices are interpreted and analogies are made.


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