Judicial interpretation of legal texts: a study in Jordanian legislation

Abstract

When applying legal texts to the facts of a case, these texts may conflict with each other, or the conflict may exist in the same text, or they may be obscured or deficient. It is incumbent upon the judge to interpret these texts and remove the conflict, ambiguity, and deficiency in order to reach a judicial ruling based on sound legal texts that align with the provisions of the law. Due to the diversity of types, reasons, and methods for interpreting legal texts, this study aims to clarify judicial interpretation of legal texts and distinguish it from other types of interpretation, along with their reasons and methods. The researchers used a descriptive-analytical approach by describing and analyzing the legal texts related to the subject of the study to reach the desired results. The researchers reached several results and recommendations, the most important of which is that the judiciary plays a key role in interpreting legal texts when applied to the facts presented to it in order to address any deficiencies, ambiguities, or conflicts within those texts. The study recommends establishing a legal system that shows the methods, reasons, and cases for judicial interpretation, in order to address legal texts when applied to the legal facts presented to the judiciary.

Keywords:

• Interpretation
• judicial interpretation
• legislative interpretation
• administrative interpretation
• ambiguity
• contradiction

Reviewing Editor:

• Heng Choon (Oliver) Chan, Department of Social Policy, Sociology, and Criminology, University of Birmingham, Birmingham, UK

Subjects:

• Jurisprudence & General Issues
• Regulation
• Legal Skills, Method & System

1. Introduction

When applying legal texts to legal facts, there may be ambiguity, contradiction, inconsistency, or deficiency among those texts. This ambiguity could be in a specific legal text or between multiple texts in different laws. The contradiction might arise between provisions of the same law that are applicable to the legal situation in question. In the case of such ambiguity, the judge resorts to interpreting these texts through various types, methods, and reasons for interpretation. This is done in order to remove ambiguity among unclear legal texts, and to address contradictions and deficiencies, thereby ensuring the proper application of legal texts to the legal situation in question.

1.1. Problem of the study

The main problem of the study lies in the judicial interpretation of legal texts. The application of legal texts to facts may be obstructed by some ambiguity, contradiction, or deficiency, and to prevent judgments from being challenged due to interpretation, it is necessary to explain the judicial interpretation and distinguish it from other types of interpretations of legal texts. An explanation of its reasons and methods is also needed so legal texts can be properly interpreted and correctly applied. In addition, there are no special legal texts related to judicial interpretation. It is also essential to assess the adequacy of the texts in Jordanian legislation in understanding various aspects of judicial interpretation and the sufficiency of the solutions provided by these texts to the problems and questions they raise. Hence, this study comes to answer the main question: what is the judicial interpretation of legal texts?

1.2. Study questions

To answer the main question of the study, several sub-questions are raised, including:

1. What is meant by the judicial interpretation of legal texts?

2. How does judicial interpretation differ from other types of interpretation?

3. What are the methods of judicial interpretation of legal texts?

4. What are the reasons for the judicial interpretation of legal texts?

1.3. Study objectives

The study aims to achieve several objectives, the most prominently are clarifying the nature of judicial interpretation of legal texts and highlighting how judicial interpretation differs from other types of interpretation. It also aims to identify the methods of judicial interpretation of legal texts and explain the reasons for the judicial interpretation of legal texts.

2. Previous studies

There is no study specialized in the subject of judicial interpretation of legal texts in Jordanian legislation. However, several studies have addressed topics related to judicial interpretation such as contract interpretation and judicial rulings. One example is the study conducted by Al-Fawaeer (2019) in which he explained the judicial interpretation of contracts based on ambiguous or clear expressions that do not indicate the true mutual will of the contracting parties. Another study was conducted by Al-Mansour (2015) which addressed the interpretation of judicial rulings in the Jordanian Civil Procedure Law, which is often ambiguous, and determined the authority responsible for interpretation.

These studies have addressed some types of interpretation such as contract and ruling interpretation, but not the interpretation of legal texts. The present study differs from previous ones in that it is a specialized study on the judicial interpretation of legal texts in Jordanian legislation.

3. Method

Researchers adopted the descriptive-analytical approach in studying judicial interpretation of legal texts, as it is considered a comprehensive approach that ensures precise analysis and comprehensive legal description of the study subject. The descriptive approach is one of the main bases used to describe the legal texts contained in Jordanian legislation, by reviewing the legal texts related to the study subject in Jordanian legislation and describing them accurately and legally. Regarding the analytical approach, it allows for a sound legal analysis of the legal texts and the opinions of jurists and judicial interpretation whenever necessary. By adopting this methodology, the researcher provides a framework for implementing a comprehensive approach to analyzing all aspects, which positively contributes to providing a comprehensive view and a sufficient understanding of the present study.

4. Analyzing legal texts and discussion

4.1. The nature of judicial interpretation and its distinction from other types of interpretation

Interpreting legal texts aims to present the correct and true content of legal texts by explaining any ambiguity and deficiency in them, clarifying their scope, and correcting any material errors contained therein. The law has given courts the right to interpret legal texts. However, the interpretation of laws is assigned to a Special Tribunal for the Interpretation of Laws as stipulated in Article (123/1) of the Jordanian Constitution stipulates: ‘The Special Tribunal (Diwan Khass) may interpret the provisions of any law which have not been interpreted by the courts if so requested by the Prime Minister’. The entity authorized to interpret laws are the court and the Special Tribunal for the Interpretation of Laws, and this is done at the request of the Prime Minister who has issued several decisions, including the interpretation in Decision No. (6) of 2022, dated 8/15/2022, regarding the term ‘company’ mentioned in the Jordanian Investment Fund Law No. 16 of 2016, whether it includes a subsidiary of the parent company. It was interpreted that if there is a unison in the objectives of the company and its subsidiaries, and if the legislator’s intent is to encourage and attract investment, it rules to include subsidiaries of the parent company (The Special Court for the Interpretation of Laws).

In order to know the meaning of judicial interpretation, it is necessary to explain the concept of interpretation and distinguish it from other types of interpretation. This is addressed in the subsequent sections:

4.1.1. Judicial interpretation

The purpose of interpreting the texts in the law is to infer the rule contained in the legal rule and to determine the meaning inherent by the legislator when applying it to real circumstances. The legal rule is general, i.e. it is directed to all people without specifying a particular person, or to a specific event or events, but to an infinite group of events that are not determined in themselves but according to the conditions defined by the discourse, and to all people who have the characteristics determined in it, such as the determination of the age of maturity at eighteen solar years in accordance with Article (43) of the Jordanian Civil Law, which applies to all individuals, male or female (Al-Zoubi, 2023, p. 25–26).

To understand the judicial definition of interpretation, it is necessary to explain the concept of interpretation in language and legal terminology, and then the concept of judicial interpretation. This is addressed in the following sections:

4.1.1.1. The concept of interpretation

The concept of interpretation in language and legal terminology is addressed subsequently:

4.1.1.1.1. Interpretation in language

The linguistic meaning of interpretation refers to disclosure, demonstration, clarification, and revealing the meaning (Ibn Manzoor, 38/3412). It is said in the Holy Quran: (And they do not come to you with an argument except that we bring you the truth and the best explanation) [Al-Furqan: 33].

In language, it is said to interpret something is to clarify it, and to interpret it in the sense of clarification, and to inquire about it is to ask for its interpretation. Interpretation is the explanation and demonstration. It is also said to interpret the Holy Quran is to clarify its meanings and what its verses contain of beliefs, secrets, wisdom, and judgments (Mustafa et al., 1961, p. 668).

4.1.1.1.2. Interpretation in legal terminology

Interpreting the legal texts contained in legislation means clarifying and explaining ambiguous phrases, completing condensed texts, deriving judgments from what was lacking, and reconciling between legal texts if a contradiction or conflict is found in the same legislation or with another piece of legislation. (Al-Daoudi, 1999, p. 505). The interpretation of legislative texts is intended to clarify what they mean and infer the legal rule from the texts of the legislation (Al-Far, 2022, p. 70).

This interpretation is made by the legislator to avoid any deficiency, ambiguity, or contradiction that may affect the legal texts, by specifying the meaning that the legislator intended from the legal text. The researchers believe that the concept of interpreting legal texts is to clarify what is ambiguous, vague, lacking, or conflicting among those legal texts in order to reach the correct meaning intended by the legislator in the law.

4.1.1.2. The concept of judicial interpretation

Judicial interpretation is the interpretation carried out by the judge when considering the disputes presented before him, with the aim of ruling on them by applying the rule of law to the dispute’s facts (Al-Abdalawi, 1971, p. 648).

The Jordanian legislator did not define the judicial interpretation of legal texts, and based on the definition of interpretation, researchers define judicial interpretation as the interpretation carried out by courts through judges to clarify ambiguity, obscurity, contradiction, or deficiency in applying legal texts to legal facts presented to them in order to reach the intention of the legislator behind those texts.

4.1.2. Distinguishing judicial interpretation from other types of interpretation

Judicial interpretation is the most common interpretation, as the judge directly undertakes the interpretation when there is conflict, ambiguity, or deficiency in legal texts. There are other types of interpretation, such as legislative interpretation, jurisprudential interpretation, and administrative interpretation.

The judge undertakes interpretation upon applying the law to the actual cases presented to him, which pushes him to adapt his interpretation of the text and the factual aspect of the dispute. This interpretation is a preliminary stage for applying the texts to the dispute’s facts correctly, in line with the legislator’s purpose of the legislation. Therefore, the judge first adapts the facts presented before him, then searches for the legal rule or rules to be applied, according to what he deduced from adapting to incorporate these facts into the hypotheses of one of these rules. During this process, the judge interprets the legal rules, and this interpretation has a practical nature; it is affected by the conditions of each lawsuit, such as practical needs, silence in the course of clarification, the manner of dealing between contracting parties, or the custom followed in a certain country, or among individuals of a certain profession, and so on. In this case, the judge may go beyond taking the literal legal texts to the spirit of the legislation. Furthermore, when the judge does not find what rules, custom, or general principles to apply in the case presented before him, he can resort to deriving a legal rule, the source of which is the principles of natural law and rules of justice and sound conscience (Al-Sharif, 2018, p. 17).

The importance of judicial interpretation emerges from a practical perspective because the judge does not establish rules for hypothetical cases, but instead considers an actual dispute presented before him. He thoroughly examines, studies, and interprets the substantive rules constituting this dispute in order to give it the appropriate legal description, then applies the solution that the legislator has established (Al-Sufyani, 2022, p. 228).

As for the Jordanian law’s interpretation, the Jordanian judge is directed to refer to the principles of Islamic jurisprudence. Article (3) of the Civil Law states that understanding the text and its interpretation is referred to the principles of Islamic jurisprudence. The legislator himself applied this in the field of contracts, where he cited several rules in the field of contract interpretation that assist the judge in interpreting them during the consideration of the lawsuit, including what is mentioned in Article (214/1) of the Jordanian Civil Law, which reads: ‘The essence in contracts lies in the purposes and meanings, not in the words and structures’. This is a directive to the judge to seek the real intention of the contracting parties. Article (221) of the same law states: ‘What is proven contrary to the norm is not measured by it’, and this is a directive not to act upon what is an exception (Al-Far, 2022, p. 72).

Researchers believe that judicial interpretation is carried out by courts through their judges in order to apply the correct legal text to the legal facts presented, whether by referring to the origin of the law, what the legislator intended by the law, analogy, or other methods of interpretation. Therefore, it is necessary to describe other types of interpretation to distinguish them from judicial interpretation, as shown in the following sections.

4.1.2.1. Legislative interpretation

Legislative interpretation is the interpretation issued by the legislator itself. It is performed by the legislator who enacted the law with the intention of clarifying any ambiguity that may arise in the application of certain provisions. In cases where disputes and disagreements arise among the courts regarding the interpretation of vague texts, the legislator issues an explanatory text to eliminate confusion, reveal the original intent of the legislator, and address the ambiguity (Al-Hafyan, 2013, p. 182). The legislator may anticipate potential disputes during the law’s enactment and decide to provide an interpretation alongside the law to clarify its true meaning. This interpretation may be issued either simultaneously with the law or at a later time without a significant time gap between the enactment of the law and the issuance of the interpretation (Al-Far, 2022, p. 71).

The motivation behind legislative interpretation is to ensure the uniform application of the law and prevent differences in interpretation that could lead to divergent judicial rulings, threatening the stability of society. Thus, the legislator intervenes when signs of disagreement in understanding the law emerge, issuing an interpretation to clearly define the intended meaning and ensure the unity of law application (Al-Sharif, 2018, p. 16).

Legislative interpretation can be issued either by the legislative authority that enacted the law or by another authority delegated by the legislative authority, such as the executive authority or administrative body. For example, the legislator may authorize a specific high committee to interpret a particular law. In all these cases, the interpretation is binding on the courts, and they are not allowed to deviate from it (Kira, 1974, p. 400).

One of the legal characteristics of legislative interpretation is that it possesses the binding force like the interpreted text itself, as it is considered an extension of it. Its impact is retroactive, and its provisions are applied from the date the interpreted law comes into effect (Al-Sidah, 1965, p. 274).

Legislative interpretation originates from the authority empowered to enact laws, which is the legislative authority in Jordan, represented by the Parliament and the House of Representatives, as it is the authority that enacted the legislation. Alternatively, the executive authority may issue it in cases of necessity, provided that the Parliament is dissolved, as in Jordan, and this is stipulated in Article (94) of the Jordanian Constitution. Likewise, in cases of delegation and authorization, as in the Egyptian legislation, it is a condition that there is authorization or delegation from the legislative authority for that purpose.

4.1.2.2. Jurisprudential interpretation

Jurisprudential interpretation is the interpretation conducted by law scholars through the study, analysis, and commentary on legal rules. The opinions and research of scholars, whether they are theorists or practitioners, contribute to creating, interpreting, and evolving the entire legal system. They also guide the way for the legislator because of the scientific methodology they follow and the tremendous effort they put into comprehensively grasping the matter. They also illumine the way for the courts to glean the precise content of the legal texts. Even though jurisprudential interpretation is predominantly theoretical, unlike judicial interpretation that has more of a practical nature, the cooperation between jurisprudence and judiciary is well-established. When the judge rules on presented disputes, he refers to the opinions of the jurists to enlighten and guide his interpretation.

Similarly, jurisprudence relies on court rulings, trying to reconcile its jurisprudential opinions with the practical trends that the judiciary follows. Thus, the advantage of jurisprudential interpretation, although rooted in the same theoretical principles and legal rules that it has gathered within the framework of the system, does not hesitate to refer back to judicial practice. This is due to the expertise and ownership that the judiciary possesses by virtue of interaction and proximity regarding the understanding of the legislator’s intent in the text, as indicated by the real-life context (Al-Sufyani, 2022, p. 229).

Therefore, it can be said that jurisprudential interpretation is what the law commentators among the jurists do in their research and writings that usually contain their critiques, comments, and clarifications about the law, which adds a lot of importance to their work, as it paves the way for judges to rely on their explanations for understanding the law and benefiting from their opinions. Therefore, it can be concluded that there is a close collaboration and a strong link between jurisprudential interpretation and judicial interpretation, despite the fact that jurisprudential interpretation is not considered an official source of legal rules. It is related to general principles rather than individual cases. Although jurisprudential interpretation has a theoretical nature, unlike judicial interpretation, it has recently shifted towards a more practical approach. It no longer confines itself to theoretical research but now includes the study of judicial decisions issued by the courts. This allows it to be aware of the practical considerations that influence the courts when applying the law in real-life situations (Al-Sanhouri, 1952, p. 116).

Overall, the jurisprudential interpretation is what the judiciary guide themselves with, so whatever the jurists of the law and its commentators have of legal opinions on different legal issues, whether in their compilations or in their legal research. They tackle these issues with precise analysis and comprehensive detail. This assists judges in applying the most suitable legal provisions to the legal facts presented to them.

4.1.2.3. Administrative interpretation

Administrative interpretation refers to a set of instructions issued by the public administration body to its employees with the aim of interpreting the provisions of the law and explaining the proper ways to apply them. It is worth mentioning here that the administration’s interpretation of the law is only binding for the employees concerned with it. Therefore, it is not binding on the courts unless it is issued by an official body that the legislator has authorized to interpret one of the legal texts. In this case, the interpretation becomes binding on the courts because it has the power of legislative interpretation (Ibrahimi, 2001, p. 190).

The specific nature of administrative law rules, along with the historical circumstances of its emergence and the lack of codification of all its rules, coupled with the expansion and diversification of administrative activities, has led the administrative judiciary to play a distinctive role in innovating legal rules in cases where there is no specific governing text. This role surpasses that of ordinary judiciary in this field (Al-Sharif, 2018, p. 18).

Administrative interpretation is issued by various administrative entities, and the courts are not bound by such interpretation unless it is related to a specific group, namely the employees affiliated with that administration, and if the entity issuing the instructions is an official one, because the instructions issued by it assist the judges in interpreting the legal texts.

Researchers believe that the multiplicity of types of interpretation relied on by judges contributes to reaching the real meaning of the legislative text, as there are many legal texts that need interpretation and removal of the ambiguity that surrounds them to reach the correct application of the law to the facts to be proven, so that judicial rulings align with the law. Judges have the absolute authority to refer to any types of interpretations according to each case separately, although they usually refer to the jurisprudential interpretation.

4.2. Methods and reasons for judicial interpretation

There are various methods and reasons that lead to the interpretation of legal texts. The interpretation methods can be internal or external. As for the reasons for interpreting legal texts, they may be due to a deficiency in the text, its ambiguity, or its contradiction with another text. The methods and reasons for interpreting legal texts are discussed in the following sections.

4.2.1. Methods of judicial interpretation

Interpretation methods refer to the means that the interpreter adopts to understand the meanings that the legislative text indicates. These methods can be internal, referring to the text itself, or external, resorting to elements external to the text (Al-Sidah, 1998, p. 284). The methods that judge follows to interpret legal texts vary, as some are internal, interpreting the text itself, and some are external, based on elements outside the text.

4.2.1.1. Internal methods of judicial interpretation

This method of understanding the meaning of a text relies on the indication derived from its formulation, whether through the logical structure of the text or the understanding derived from the context of the text. It involves interpreting the text based on its linguistic logic or the concept drawn from the context of the text. Hence, it requires understanding the styles in the Arabic language, its semantic structures, and what its words, both individually and collectively, indicate (Al-Sidah, 1998, p. 284–285).

4.2.1.2. Extrapolation from the concept of conformance

This refers to giving a specified ruling to an incident that is not provided for, similar to another incident that is provided for, where there is a commonality between the two incidents. This method of extrapolation is called analogy, which is based on the idea that issues similar in their basic characteristics are treated alike. The analogy itself has two types: standard analogy and analogy by way of preference or priority (Anqar, 2016, p. 69).

4.2.1.2.1. Standard analogy

This is when an incident not specified in legislation is given the same ruling as another incident due to the unity of the reason for this ruling. The ruling exists where its cause exists. For example, the Hadith of the Prophet Muhammad (PBUH) indicates that a killer does not inherit. The reason for this is that a heir killing his testator is a premature act to inherit something before its due time. Therefore, the heir is punished by being denied inheritance. This means that there is a case that is stipulated and another case that is not stipulated. Thus, the unstipulated case takes on the rule of the stipulated one and this is called standard analogy. Accordingly, researchers can say that this method is applied by judges in order to implement a ruling concerning a particular case onto another case that has not been stipulated in the legislation due to the definite resemblance between the two incidents or the presence of a convergence between them in reason or cause. An example is denying a heir the inheritance in the case of him killing his testator prematurely, as Article (237) of the Jordanian Civil Law stipulates that whoever hastens something before its due time is punished by being deprived of it (Al-Zoubi, 2023, p. 208).

4.2.1.2.2. Analogy by way of preference or priority

This type of analogy comes into play when there is a case specified with a ruling, and the cause of this ruling is more evident in another case not provided for. In this case, the ruling is applied by way of preference or priority. An example of this is the legislative text that prohibits a person lacking discretion from selling their property, and there is no text prohibiting them from donating it. Here, it should be a priority ruled that he is prohibited from donating his property because donation, which is an impoverishing disposal, is a more serious matter than sale since it leads to the removal of his property from his financial commitment (Anqar, 2016, p. 70).

Therefore, this method is used by judges to implement a ruling concerning a certain case to another case not legislated for not just because the cause of the ruling in the first case is available in the second case, but because they are more available in the second case than in the first. Another example is the verse from Holy Quran that address sons (say not to them [so much as], ‘uff’, and do not repel them but speak to them a noble word) [Surah Al-Isra: 23]. It is indeed obligatory not to hit them, as hitting causes more physical and psychological harm compared to verbal abuse, which only affects the psychological aspect. Thus, hitting is measured against verbal abuse.

4.2.1.3. Extrapolation from the concept of contradiction

This refers to giving an unspecified case the opposite ruling that the legislator explicitly gives in another case due to a difference in the cause between the two cases. For example, if the law states that if the sold item perishes before delivery, the sale is rescinded, and the buyer recovers the price. The contrary concept of this ruling is that if the sold item perishes after delivery, it does not lead to rescinding the sale, nor does the buyer recover the price (Al-Zoubi, 2023, p. 209). Confirming this is what Article (500) of the Jordanian Civil Law stipulates that if the sold item perishes before delivery, the sale is abandoned, and the buyer retrieves what he gave of the price.

Moreover, it also refers to giving a case not specified in law the opposite ruling of a specified case, either due to a difference in the causative factor between the two cases or because the case specified by the legislator is considered an exception to the unspecified case. In other words, inferring from the concept of contradiction is entirely the opposite of drawing conclusion from the concept of contradiction as stated in the following saying: ‘Everything that is not forbidden is permissible’. Hence, this method of interpretation is used to apply the opposite ruling concerning a certain case to another case not provided for in the legislation because the second case entirely differs from the first one, thus being completely opposite. The method of extrapolation from the concept of contradiction is the opposite of the method of analogy; in inferring from the concept of contradiction, the case not provided in the legislative text is the opposite of the case provided for in that text. Therefore, it is necessary to apply an opposite ruling to it (Anqar, 2016, p. 70).

Furthermore, what is articulated in the text of Article (27) of the Jordanian Evidence Law which stipulates: ‘Proof by testimony is permissible in non-contractual obligations’. By the contrary understanding of the text, if the obligation is contractual, it is not permissible to prove it by testimony, especially if it exceeds one hundred dinars, except in exceptional cases stipulated in Article (30) of the Jordanian Evidence Law and other comparative legislations such as Articles (62) and (63) of the Egyptian Law of Evidence in Civil & Commercial Matters. The concept of deviation is the most common and widely used in the judiciary when applying legal texts to the facts intended to be proven, especially when a case not explicitly stated is given a ruling contrary to a case for which a ruling is stated.

4.2.1.4. External methods of judicial interpretation

External methods are the means outside the text itself, which the judge relies on to understand the actual intention of the legislator. These means do not depend on analyzing the phrases and words of the text, but rather on external elements from it. These methods are represented by the purposes of the law, preparatory work, and historical sources, and this is discussed as follows:

4.2.1.4.1. The purpose of legislation

The purpose of legislation refers to the motivating factor behind establishing the ruling contained in this legislation. It is the intended purpose of the ruling, i.e. the interest that the legislator sought to achieve or the corruption the legislator aimed to fend off. Understanding this purpose often helps define the meaning of the text if its terms are not clearly indicative of a specific meaning (Al-Sidah, 1998, p. 285).

Knowing the purpose of the legal text and the meaning it contains helps interpret this text when it is ambiguous and deduce the correct ruling from it; the legislator aims behind every text or legal rule to achieve a set of noble goals aimed at caring for the interests of the community and individuals (Al-Sufyani, 2022, p. 236).

Referring to the purpose of legislation or the spirit of legislation, which motivates the establishment of the ruling contained in this legislation, can either be the interest that the legislator aims to achieve or the corruption that the legislator aims to avoid. In light of this, it is easier to interpret the text and consequentially, its interpretation becomes easier (Anqar, 2016, p. 71). In interpreting legal texts in case of their ambiguity, ambiguity, or contradiction with other texts, it is the judge’s responsibility to know the purpose behind the text in order to interpret these texts. This is the goal that the legislator intended when formulating the text, and if this purpose is known, it becomes a reason for interpreting the text, and sometimes it is referred to as the causes that necessitate the formulation of the text.

4.2.1.4.2. Preparatory work

Preparatory works refer to the collection of documents, memos, and discussions about the law when it was being prepared. It includes the draft text and the discussions around it in the technical committees that established it and the legislative councils that approved it. It also includes explanatory memos written as a comment on the draft text to clarify its meaning and the intended purpose behind it. These documents, discussions, and memos pave the way for the interpreter to reveal the meaning of the text, the reality of the ruling it contains, the intended purpose of it, and the circumstances that surrounded it from the time it was thought of until it was completed. However, they are not considered part of the legislation; therefore, they do not have binding force (Al-Zoubi, 2023, p. 209).

Preparatory works include all the work that preceded the issuance of the law by the legislative authority or accompanied it. This work is the draft laws and the associated explanatory memos and discussions about feasibility, goals, and means associated with implementing each law. This work makes it easier to reach the legislator’s goals when formulating the texts when there is ambiguity or vagueness associated with them (Al-Sufyani, 2022, p. 236).

It is worth noting that referring to preparatory works should be approached with caution for two reasons. Firstly, they often contain opinions considered personal interpretations by their authors, which may not necessarily reflect the perspective that the legislator has already adopted. Secondly, they may fail to convey the true meaning of the texts due to modifications introduced after their creation. These considerations undermine the authoritative nature of preparatory works, and the judge is free to either consider them or resort to other methods of interpretation (Anqar, 2016, p. 71).

Before laws are issued, they must go through stages of legislation including preparation, suggestion, discussion, and voting. These stages include many proposals as the law is discussed article by article, and what is included in it serves as a reason for its interpretation to reach the legislator’s intention of approving these texts. The judge searches for these works to reach a judicial ruling that complies with the laws.

4.2.1.4.3. Historical sources

Historical sources refer to the historical origin from which the content is taken. The ruling of the legal rule might be borrowed from an ancient law prevailing in the same society or from a foreign law applied in another society; meaning this law is its material origin, also referred to as its historical source. For example, the provisions of Islamic jurisprudence and the principles of Islamic law are considered a historical source for many rules of civil law, just as Roman law is considered a historical source for many rules of French civil law, from which the Egyptian civil law has taken a lot of rules (Al-Zoubi, 2023, p. 103). Often, the judge refers to this origin to understand the real intention of the legislator if the other interpretation mechanisms do not achieve it (Anqar, 2016, p. 7).

These are the sources from which the law has taken its rules and derived its judgments. For example, foreign laws are considered historical sources for most modern Arab laws that have derived their rulings from them. The judge or interpreter, when faced with an ambiguous legal text, can refer to the historical source of this law and interpret the text considering it. However, resorting to historical sources to interpret the law is only done for guidance (Al-Sufyani, 2022, p. 236).

The source of the law is the origin from which it is derived, which may be historical. These sources could be ancient, derived from their historical origin. The Jordanian law is derived from Islamic jurisprudence, and there are laws derived from foreign laws, such as the Jordanian Trade Law. There may also be interpretative sources aimed at removing ambiguity, contradiction, or deficiency in legal texts. When the judge resorts to such sources, the legislative goal is achieved, and the ambiguity contained therein is removed, thus leading to a judicial ruling that aligns with the correct interpretation of the law.

4.2.2. Reasons for judicial interpretation

The reasons that prompt a judge to interpret legal texts are numerous and diverse. These include deficiencies in the law or the law’s silence on a particular matter, ambiguity in the wording of the judgment and its reasons, and contradictions between legislative texts. These are explained through the subsequent sections.

4.2.2.1. Deficiency

This can be expressed as a gap in the law or the law’s silence. This refers to the lack of a stipulation in the law that addresses the dispute presented before the judge and the shortcomings in the law. This is when a legal text does not include the detailed or partial rulings needed (Muhareb, 1998, p. 66). Therefore, there is a case of deficiency in the legislative text if the legislator neglects to mention a word or expression without which the text cannot stand, or if the legislator omits to mention cases that should have been mentioned. In this case, the judge need complete the deficiency in order to apply the text to the incident to be resolved (Anqar, 2016, p. 68).

For example, the researchers find that the Jordanian Civil Law approached this case of legislation deficiency in the text of Article (2) in its second, third, and fourth paragraphs, which state that if the court does not find a provision in this law, it shall rule according to the provisions of Islamic jurisprudence most in alignment with the provisions of this law. If it does not find such provisions, then according to the principles of Islamic Sharia. If it does not find any, then according to custom. If it does not find any, it shall rule according to the rules of justice. It is a condition for the custom to be public, old, constant, mutually agreed upon, and does not contradict the provisions of the law, public order, or morals. In all of this, it shall rely on what the judiciary and jurisprudence have affirmed, provided that it does not contradict what is mentioned. In the case of a deficiency, the judge refers to other legal sources as every law stipulates. As can be seen in the previous article that specified the sources applicable to legal facts in the absence of a text, the Jordanian Conciliation Courts Law in Article (19) refers to the Code of Civil Procedure in the absence of a provision in the Conciliation Courts Law.

4.2.2.2. Ambiguity

The ambiguity of the text means that it is unclear. If one of its words or the set of its statements can be interpreted in more than one way, the judge, in this case, has to choose any of its meanings that he sees as the most accurate and closest to the intention of the legislator from this text (Anqar, 2016, p. 68).

The texts of the Jordanian Civil Procedure Code did not address the ambiguity of rulings among its subjects. However, referring to Article (17) of the Jordanian Enforcement Law No. (25) of 2007 and its amendments, it stipulates: ‘The President may seek clarification from the court issuing the judgment on what may be ambiguous about it’. Consequently, the court that issued the ruling has the authority to interpret it and clarify any ambiguity accompanying it, as it is more aware than the trial courts and more capable of interpreting the ruling and its reasons and disclosing any ambiguity it may have. The court from which the interpretation of its ruling is requested, issues its clarification decision and sends a copy of it to the head of enforcement (Al-Zoubi, 2020, p. 466).

For example, if the judge wants to apply a text to a certain case, and there is ambiguity in applying this text or ambiguity meaning it can have more than one interpretation, then the judge must favor the meanings that are most suitable with the case presented to him, so there are no objections to applying the texts.

4.2.2.3. Contradiction

Contradiction means the existence of disagreement between two legislative texts, each carrying a ruling that contradicts the other, making it impossible to reconcile them. The contradiction might be between two texts in one piece of legislation, or between two or more texts in different pieces of legislation (Jaafour, 2008, p. 303). If the contradiction is between two texts in one piece of legislation and it is impossible to reconcile them, the judge here must choose one text, by applying one and disregarding the other. However, if the contradiction occurs between two texts in different equal power legislations, the judge can follow two approaches. The first approach is to consider one of them general and apply it as a general principle, while the other is considered specific and applied in exceptional cases, following the rule ‘the specific restricts the general that is equal to it or less powerful than it’. The second approach is to take the newer text, considering it as canceling and nullifying the older text, in accordance with the principle ‘subsequent legislation cancels prior legislation that is equal to it or less powerful than it’ (Anqar, 2016, p. 69).

The Jordanian Court of Cassation ruled: ‘Considering that the text stated in Article (18/A/1) of the Mandatory Insurance System Law No. (32) of 2001 is a specific text that must be applied and enforced without regard to the provisions of Article (926) of the Civil Law, which contains exceptions, because in case of conflict between the general text and the specific text, the specific text prevails’. (Court of Cassation, Rights Cassation No. 4506/2018, dated 1/10/2018). It also ruled: ‘When a legislative text contradicts a legislative text at a higher level, the higher statutory text is applied. So, if a legal text contradicts a constitutional text, the constitutional text is given precedence in application’ (Rights Cassation No. 194/2013, dated 29/4/2013).

The contradiction arises between legislative texts when there are two texts, where each has a different implication and meaning from the other, making it difficult to reconcile between them. This contradiction may occur within the texts of a single legislation or between different legislations. In the case of contradiction within the texts of a single legislation, it is up to the judge to choose one of them, the one most suitable for the facts presented to him. However, if the contradiction is between two texts, each of which follows another legislation, such as the contradiction between the texts of the Labor Law and the provisions of the Labor Law included in the Civil Law, there is a specific law, which is labor law, and a general law, which is civil law, so the provisions of the specific law are applied. If there are specific texts regarding certain facts and actions, as stated in Article (42/2) of the Civil Law, which only allows proving citizenship in writing, despite the generality of the rules of evidence, the judge must adhere to those texts when applying them and disregarding the specific rules to evidence stated in the Jordanian Code of Civil Procedures when there are specific rules regarding a particular situation or legal action.

5. Conclusion

After studying the interpretation of legal texts in Jordanian legislation, several results were reached, the most important of which are:

1. The judiciary has a role in interpreting legal texts when applying them to the presented facts to it to address any deficiencies, ambiguities, and contradictions in these texts.

2. The Jordanian legislator has given the judiciary the freedom to interpret legal texts by following interpretive methods, some of which are internal such as extrapolation from the concept of conformance or the concept of contradiction, and some are external such as the aims of legislation, preparatory works, and historical sources.

3. The judiciary contributes to reaching the true meaning of the legislative text that must be applied, and this is done through the judge’s recourse to be guided by other types of interpretation such as legislative, judicial, and administrative when interpreting legal texts.

4. The most common type of interpretation of legal texts in the Jordanian judiciary is the jurisprudential interpretation, and the most used method is extrapolation from the concept of conformance.

6. Recommendations

The researchers recommend the following:

1. Establishing a legal system that clarifies the methods, reasons, and cases of resorting to judicial interpretation, in order to address legal texts when applied to legal facts presented to the judiciary.

2. Initiating the procedure of judicial interpretation based on the request of the judge handling the matter, as he bears the burden of proving the element of law or based on the request of the opponents. It is up to the judge handling the matter to choose the most appropriate way to interpret the text that must be applied, and this should be subject to the control of the Court of Cassation.

3. Establishing a legal standard for the judicial interpretation of legal texts, in order to limit the ambiguity, deficiency, and contradiction of legal texts and addressing them in order to balance the achievement of justice and its guarantees.

Authors’ contributions

Substantial contributions to the conception or design of the work; or the acquisition, analysis, or interpretation of data for the work (M.M.J). Drafting the work or reviewing it critically for important intellectual content (M.M.J and S.M). Final approval of the version to be published (M.M.J; S.M and G.A). Agreement to be accountable for all aspects of the work in ensuring that questions related to the accuracy or integrity of any part of the work are appropriately investigated and resolved (M.M.J; S.M and G.A).

Disclosure statement

No potential conflict of interest was reported by the author(s).

Data availability statement

The data and materials used in this study are available upon request from the corresponding author.

Additional information

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

Notes on contributors

Mashal Mufleh Jarrah

Dr. Mashal Mufleh Jarrah is Lecturer of Private Law, School of Law, The University of Jordan, Jordan. His research interests lie in the areas of private law, particularly in the civil procedure law. He published several research papers in national and international peer-reviewed journals.

Safa Hakem Mestarih

Mrs. Safa Hakem Mestarih is Lecturer of Public law, College of Arts and Sciences, Department of Political Sciences, Amman Arab University, Jordan. Her research interests are public law, criminal law and human rights.

Ghazi Ayed Alghathian

Dr. Ghazi Ayed Alghathian is Lecturer in Civil Law, School of Law, The University of Jordan, Jordan. His research interests are civil law and insurance law. He published several research papers in national and international peer-reviewed journals.