Legislative Materials in the Light of Polish and Spanish Law, Judicial Practice and Theoretical Literature

1. Evidence of legislator’s intent

As rightly indicated in the doctrine, the role of a legal text interpreter consists of looking for evidence to determine the legislator’s intent². There is no question that the strongest evidence is the legal text itself³. However, the situation gets more complicated when the text contains unclear, imprecise, ambiguous phrases, or when its literal interpretation leads to unacceptable results. Drawing from the terminology of criminal procedure, we can say that, in a complicated situation, the evidence in the form of the text is only circumstantial, and therefore too weak to be relied solely upon; it is insufficient evidence, which cannot be correctly interpreted in isolation from other evidence. How can such other evidence be found? A robust textualist will surely maintain that the search for it should be considered a crime against interpretation. They will stigmatise the attitude of an intentionalist, who, instead of fully understanding the text itself, goes beyond it, most often by analysing the history of its creation⁴. In turn, the intentionalist will reach for all the evidence at their disposal. Legislative materials can be compared to video surveillance recordings from the scene: although they will not always allow accurate analysis, it would be negligent not to use them in a situation where other “evidence in the case” seems doubtful, namely when the text is not direct evidence and legible enough. Legislative materials will not always provide a good answer. Nor will a reading of the text in isolation.

2. Legislative materials

So, what are legislative materials and how is the use of them perceived by legislation, case law and doctrine? These issues will be analysed on the basis of Polish and Spanish literature, judicial decisions, and the law.

First, it should be emphasised that “legislative materials” is a non-uniform, umbrella term. Terms regarding specific materials such as “government bill,” “deputies’ bill,” “draft resolution,” “explanatory statement to a bill” (also termed “justification”) usually derive from the law itself and do not raise doubts. In doctrine, however, there also are more general concepts, which may occasionally be problematic. Apart from “legislative materials”, we find “legislative history”, “preparatory materials” (Spanish: trabajos pre- paratorios, French: travaux préparatoires) and “historical criterion”, all of which should be identified with legislative materials or considered synonymous. According to Spanish doctrine, the criterion for identifying legislative materials is normative since it is not developed by legal theorists, but derives from systemic regulations. It is the Basic Law that stipulates the rules of legislative process and its participants, and thus makes it possible to determine the types of legislative materials⁵. However, it should be noted that the Spanish Constitution⁶ in no way refers to preparatory materials as means of interpretation. Naturally, it provides for the existence of explanatory statements, bills and amendments (e.g. Article 88 of the Spanish Constitution), but treats them only as fragments of the legislative path, not recognised as sources of law or aids to its understanding. Neither are legislative materials mentioned as sources of law in Article 87, Article 234 nor other provisions of the Constitution of the Republic of Poland⁷. Therefore, the starting point for answering the question of what can be considered legislative materials is the Constitution, as it contains general norms concerning the legislative procedure, while specific regulations should be sought in the practice of individual organs, in relevant parliamentary statutes and resolutions, and in legal literature. According to Spanish legal literature, in contemporary continental Europe, political and technical documentation from the sphere of executive power directly related to a government bill is sometimes considered as legislative material⁸. This group also includes documents created by the legislative authority and related to some specific legal act such as legislative proposals, bills, amendments, transcripts of or reports on committee debates, justifications, and explanatory statements related to voting. In this sense, all preparatory materials (works) are legislative materials, unlike the components taken into account in historical interpretation⁹. But, according to another concept, legislative (preparatory) materials are not separate from historical interpretation; on the contrary, the supporters claim that using such materials for interpretation is in itself historical interpretation, and speak of a “historical criterion in the interpretation process”¹⁰. Historical resources (recursos históricos) useful in legal interpretation can vary in nature. The doctrine emphasises this diversity by creating various classifications. There is a variously understood division of precedentes (historical factors, sources) into los remotos (literally: distant) and los inmediatos (literally: direct). According to Felipe Clemente de Diego, the latter are preparatory materials (works) (trabajos preparatorios)

and exposiciones de motivos, namely justifications for introducing specific legal regulations. In turn, José Castán Tobeñas considers Roman, Germanic and canon law to be precedentes remotos, the legislation preceding the binding one to be precedentes inmediatos, while trabajos preparatorios or materiales prelegislativos fall into a separate, third category¹¹. Preparatory materials (materiales prelegislativos, trabajos preparatorios) can generally be defined as documents created in the course of and with the aim of drafting an act, as well as those that record actions and discussions that took place in this process¹². Agnieszka Bielska-Brodziak indicates five variants of legislative history¹³, based on the distinction made in the common law countries¹⁴. The first is the conventional legislative history of an interpreted act. This is the most general and intuitive understanding of legislative history. The second is the history of changes to a bill. The third relates to history leading up to the start of legislative work, and also has several versions¹⁵. The fourth variant is history created after enacting the interpreted legal act, and the fifth is the broad historical context of creation of the interpreted act¹⁶. Passing on to analysis of specific types of legislative materials, we should mention bills in the first place. In Poland, pursuant to Art. 118 of the Constitution, legislative initiative is vested in deputies of the lower house (Sejm), the upper house (Senat), the President, the Council of Ministers, and a group of at least 100,000 citizens entitled to vote in the Sejm elections. The Spanish Constitution, under Art. 87, vests the legislative initiative in the government, the Congress of Deputies, the Senate, and a group of at least 500,000 citizens. The right to initiate legislative assemblies by Autonomous Communities is regulated separately (Article 87.2 of the Spanish Constitution). According to the traditional nomenclature, the term proyectos is reserved for government bills, while other bills are referred to as proposiciones de ley. Without delving into analysis of individual types of bills, it is worth noting that they vary both in terms of their number and their legislative effectiveness and quality of documents depending on which of the mentioned bodies developed them. Undoubtedly, both in Poland and Spain, government bills will be in the lead, as they are usually professionally prepared, not subject to many transformations, and rarely rejected¹⁷. The activity of deputies is also significant¹⁸. In Spain, the Cortes Generales stand out as regards the number of submitted proposals¹⁹. When a bill is used in the interpretation process, it is crucial whether it was adopted unchanged, and if not, what are the changes to which it was subject during the legislative procedure²⁰.

The second, very important type of legislative materials are explanatory statements to bills. They have several functions. In Polish doctrine, interpretative function is indicated as one of them. Explanatory statements play an important role “in the process of law-application by serving as a non self-executing source of law, making it easier to understand the legislator’s intentions”21. The usefulness of a justification depends on its wording, i.e. primarily on a clear expression of the aim of a given normative act, since this element is most often sought in a statement by the interpreter²². As regards Spanish law, mention should be made of explanatory statements contained in the very text of statute, namely exposiciones de motivos. According to the Spanish directives of normative technique²³, preliminary bills and drafts of royal legislative decrees, as well as laws (decrees) already adopted, are divided into three parts. The first, exposición de motivos, describes the content of a law, indicates its objectives and motives, as well as the facts preceding its adoption. The idea is to attain a high level of comprehensibility of a legal text. As indicated in case law of the Spanish Constitutional Court, although preambles or exposiciones de motivos²⁴ do not have normative value²⁵, they serve as an interpretative criterion allowing discovery of the legislator’s will (volun- tad del legislador)²⁶ and teleological interpretation²⁷. Also, the Spanish Supreme Court (hereinafter SSC) clearly stated that the legal value of exposición de motivos is not about providing legal disposition, but to serve as interpretative guidelines²⁸. This is a specifically Spanish understanding of explanatory statements. Apart from Spain (and South America, which draws on the former’s achievements and models), preambles can be found in European normative acts and national Constitutions, while such regulations are only exceptionally present in laws or municipal regulations²⁹. It should be added that Spanish case law regularly refers to exposición de motivos³⁰.

21 G. Wierczyński, Redagowanie i ogłaszanie aktów normatywnych. Komentarz [Eng. Writing and Publishing Normative Acts. A Commentary], Warszawa 2016, p. 116.

Exposiciones de motivos are not usually used as a historical criterion. However, they can serve as such when the legislator directly justifies the amendment by contrasting it with the previously binding law³¹. Sometimes it is pointed out that it is necessary to distinguish between 1) exposiciones de motivos in applicable laws and 2) exposiciones de motivos in provisions not yet adopted and explanatory statements to bills (explicaciones). The latter have the nature of a “pure” historical criterion; the former, discussed above, are treated as a historical criterion only by analogy³². Legislative materials also include amendments (enmiendas), introduced at different stages of the legislative process, including self-amendments³³, various statements made during debates³⁴, or more generally “parliamentary debate”³⁵, and expert opinions. It is worth mentioning that references to parliamentary debate (more broadly, to discussions on introducing a given provision) sometimes rely on criticism of a specific solution³⁶, or are associated with evoking controversies provoked by the introduced changes. When courts turn to preparatory materials, this enables not only interpretation, but also interaction between the legislative and judicial authorities by making ongoing reference to the effects of solutions criticised, or approved, by the courts. Whether a court may or should negatively assess law is, of course, another issue; yet courts are often involved in such “discussions” with the legislator³⁷.

of 26 October 2017 (3734/2017), ECLI:ES:TS:2017:3734, the court explained that it is clear from the exposición de motivos that the Spanish legislator voluntarily overfulfilled the requirements of the transport directive (referred to in the judgment) and extended the rules of the good regulation into other sectors. In the Audiencia Nacional judgment of 18 October 2017 (3979/2017), ECLI:ES:AN:2017:3979, it is indicated that it followed from exposición de motivos which entities were eligible for funding in this case. In the Tribunal Supremo judgment of 16 October 2017 (3530/2017), ECLI:ES:TS:2017:3530, the SSC examined the right to public information, i.a. in the context of the costs incurred by RTVE (the Spanish audiovisual corporation) in connection with the country’s participation in the Eurovision Song Contest in 2015. The court found that exposición de motivos implies a broad understanding of the right to access public information – this right is available to all persons who can exercise it, without providing grounds for their demand, and may be restricted only in cases where it follows from its own nature. Thus, the legislator obliges interpretation of all restrictions of this right in a restrictive way. Finally, the Tribunal Supremo judgment of 28 June 2017 (2497/2017), ECLI:ES:TS:2017:2497 states that any doubts that could arise in relation to the legal basis of the judgment are dispelled by a reading of the preamble to the Criminal Code, in which the legislator clearly explains his will to introduce the aggravated type of theft, referring to the social context and drawing attention to the intended goals.

The assumption that the legislator intends to create meaningful provisions consistent with the rest of the legal system helps overcome possible ambiguities, gaps and contradictions³⁸. It occurs that legislative materials are used when there is a need to go beyond literal meaning leading to absurd results³⁹, or if the legislator’s mistake must be rectified⁴⁰. In difficult situations, legislative materials are the best tools available because, like the text itself, they come from the legislator⁴¹. The judicature makes use of legislative history. Polish and Spanish courts resort to legislative materials, which gives the green light to “intention-seekers”. It is worth recalling that the Polish Supreme Court (hereinafter “PSC”) explicitly allowed the use of interpretation by means other than grammatical⁴² by expressis verbis referring to historical interpretation, which comprises the use of legislative materials⁴³. However, it has been noticed in literature that Polish court practice has not yet developed a hierarchy of preparatory materials or standards of their application⁴⁴. Furthermore, there are no detailed guidelines for their interpretation in the provisions of Polish law, and acts usually comprise neither equivalents of exposiciones de motivos nor normative guidelines regarding interpretation of a specific text. As regards Spanish law, Art. 3 of the Spanish Civil Code⁴⁵ directly indicates that provisions should be interpreted in accordance with the very meaning of the words, in relation to the context and to “historical and legislative antecedents” (antecedentes históricos y legislativos), as well as to social reality at the time of the application of the norms, given in particular their spirit and purpose. Antecedentes históricos reveal what the legislator wanted to change or preserve from previously applicable law, while ante- cedentes legislativos reveal what they proposed, discussed, and what conclusions they eventually drew⁴⁶. Interpretation “in relation to antecedentes históricos y legislativos” is considered a historical element of interpretation. Antecedentes históricos are historical

recidivism is used as the sole basis for constructing a hyperagravado type.” In the Tribunal Supremo judgment of 17 May 2017 (354/2017), ECLI:ES:TS:2017:1883, the SSC criticised the fact that the crime of self-indoctrination (Spanish: autoadoctrinamiento) introduced in the Criminal Code in 2015 is a pre-preparatory action (Spanish: protopreparatorio), and emphasised that expressing harmful or violent beliefs is within freedom of speech. The ruling was commented upon in the media. One can refer, among others, to the article El Supremo revoca la primera condena por autoadoctrinamiento yihadista y critica la reforma legal [Eng. The Supreme Court revokes the first judgment for jihadist self-indoctrination and criticises the legal reform] http://www.elmundo.es/espana/ 2017/05/18/591db153226 01d42548b45d6.html, accessed on: 5.12.2017).

provisions, former laws such as Roman law, and antecedentes legislativos are identified with preliminary drafts (borradores, anteproyectos), bills (proyectos) and parliamentary discussions⁴⁷. As far as the historical element is concerned, the argument arising from the change of regulations also comes into play. Doctrine sometimes states the need to find the golden mean between subjective interpretation – focused on discovering the meaning the creator of the norm gave it at the time of its establishment, and objective interpretation – understanding the norm per se as part of the entire legal system at the time of norm-application⁴⁸. Art. 3 of Código civil, cited above, seems to be the answer of the Spanish legislator to these demands. However, putting a few signposts at once without specifying which of them points the right way does not seem to be a real attempt to find balance between voluntas legis and voluntas legislatoris. Incidentally, it is worth noting that Art. 111–2 of Catalan Código civil regulates interpretation guidelines slightly differently⁴⁹. As provided in the second paragraph of this provision, when interpreting and applying the civil law of Catalonia, account should be taken in particular of the civil case law of the Tribunal de Casación de Cataluña and the Tribunal Superior de Justicia de Cataluña. Therefore, the main interpretative tool is to refer to the case law tradition of Catalan courts. The legislator does not preclude the use of legislative materials, but also does not explicitly provide for it in this provision. No interpretative tools have been specified in the Spanish Penal Code, which is undoubtedly related to the matter being regulated. According to the principle nullum crimen sine lege scripta, stricta, certa, priority should be given to literal wording of the Penal Code provisions⁵⁰. The use of legislative materials in interpreting criminal law is of marginal importance even in the countries where there is no doubt as to the relevance of using preparatory materials⁵¹.

3. Criticism of legislative materials

The use of legislative materials to find out the legislator’s intent is sometimes met with criticism. Though it is impossible here to address all the objections, it is worth noting at least some of them.

3.1. First objection: reference to the intent

The first objection is made not only against those who reach for legislative materials, but against intentionalists in general. It is argued that it does not matter what the legislator wanted to say because, under the rule of law, what matters is what they actually said⁵². However, what the legislator actually said is not always known. Linguistic interpretation

alone is not enough when facing semantic or syntactic ambiguity, vagueness or open texture⁵³. It is worth stressing here that these are not rare situations, as the legislator must respond to “the enormous need to provide legal texts with flexibility that would allow legal decisions to be adequately adapted to all individual characteristics of concrete situations (also in the distant future)”⁵⁴, and this task may be implemented by applying vague phrases (however, the occurrence of an ambiguous phrase whenever it is impos sible to eliminate its ambiguity by means of a definition or context is negatively assessed, while the use of vague phrases is generally considered as intended by the legislator)⁵⁵. Additionally, it should be noted that a legal provision is, or at least should be, the result of a compromise⁵⁶. This compromise is not aimed at creating some provision, but its final text is a result of provisions that were intended to be created; therefore, it is meant to realise the goals of participators in the legislative process as much as possible. Hence, the legislator’s activity undoubtedly has the embedded aim to “express their decisions, sometimes particularly subtle and socially, politically or economically complicated”⁵⁷. “Obviously, the legislator wants to attain certain pragmatic goals, namely expecting certain results after implementation of the norm they established”⁵⁸. An act cannot be anal ysed in isolation from its purpose. Even the most ardent advocates of textualism do not question the view that law is the result of the legislator’s deliberate activity⁵⁹. It is worth mentioning that, in order to truly understand the compromise, an understanding of the dispute must first be gained. This pertains not only to such complex and politically entangled processes of working out a compromise as lawmaking. Imagine a commonplace situation: it’s 8 p.m. on a summer evening, and a married couple are going to the cinema to see the latest Woody Allen production. If this is the only information given, presumably what is crucial here is this particular movie, as well as the fact that it was directed by Woody Allen. However, we will assess the situation differently if we learn that at 6 p.m. a conflict arose between the spouses, as the husband wanted to watch a new series at home, while the wife preferred to have a walk in the park and then see some movie in an outdoor cinema. At 7 p.m. the couple agreed that going to the cinema would be the perfect compromise: each of them felt like spending the evening in front of the screen, they will go to the cinema on foot (so the wife will have her walk), and the latest release will be, for her husband, as good a topic to discuss with friends as the new series he intended to watch. Hence, what matters is not a specific film but something to watch. It is not without significance that this is a new production (this was what the husband wanted), as well as the fact that the spouses go to the cinema on foot

(this was what the wife wanted). The example may be a simplification, but illustrates the mechanisms of perceiving a situation depending on how much information is revealed. According to Stanley Fish, “Words alone, without an animating intention, do not have power, do not have semantic shape.” Therefore, even what the one who claims “that he or she is able to construe words apart from intention”, what they “will really have done is assumed an intention without being aware of having done so”⁶⁰. Instead of assigning the legislator one’s own intention arbitrarily and often unconsciously, it is better to deliberately avail of tools allowing discovery of the true intention, especially when work on the text was turbulent or the provision raises interpretation doubts.

3.2. Second objection: subjective intention

The second objection concerns the use of legislative materials in the interpretation process with a subjective attitude⁶¹. Spanish opponents of subjective theories⁶² indicate that proponents of subjectivity are looking back, whereas the law is applied “here and now,” hence the understanding of the provision should be adapted to the legal and socio- -political context of its interpretation⁶³, which seeking the historical legislator’s intent would supposedly not allow. In Spanish doctrine, in order to refute this argument, it is argued that subjectivism cannot be equated with originalism⁶⁴, and that the legislator may have intended to have the interpretation of the regulations they created adapted to the chang ing world⁶⁵. This seems plausible. Why assume that the legislator’s intent at the time of the creation a law was put in a specific, now dated, context, as in a prison without windows or clocks? Of course, seeing the context of a provision’s origin is in itself valuable for the purposes of understanding that provision. The literature assumes that knowing the social, economic and cultural circumstances in which a provision was adopted will often prove crucial for dispelling unclearness and ambiguity⁶⁶. Nevertheless, context cannot be a hindrance. It should not be forgotten that a legislative body is a collection of people, and a human being, by their nature, is endowed with imagination. Why not see the context of a provision’s origin as a mountain meadow with a view of the whole area? Creating regulations is prospective by nature. If the law was made ad hoc and concerned only specific situations, provisions would be but arbitrary decisions with addressees only seemingly defined in a general way, and the instructions would be abstract. Proponents

of using legislative materials in the process of interpretation indicate that we speak of the legislator’s intent exactly when we can call it a purpose, and not a motive⁶⁷. These materials do not tie the interpreter’s hands: recognition that the purpose cannot be found in legislative materials, or that this purpose is more like a motive and has dated, will lead to overcoming the original intention in favour of finding the new meaning of the provision in a changed reality. It should be emphasised that this does not mean that the real intentions of the factual legislator are devoid of interpretative qualities. In Polish literature, it is sometimes indicated that discovering intentions by referring to legislative materials is not objective, and the position negating the need to refer to legislative materials is considered predominant⁶⁸. Similar criticism has also appeared in the decisions of the PSC⁶⁹. In common law countries, it has been pointed out in response to similar objections that even identifying objectivity with the understanding by a rational reader, or constructing a fictitious objective intention, is based on the key presupposition that there is some subjective intention. At the same time, subjective intention is not identified with hidden intentions, which could be learned only through privately obtained information, but with the intention discovered on the basis of publicly available data⁷⁰. Indubitably, legislative materials are such data. Literature emphasises that a legislative body has a functional equivalent of intention, based on the procedures for adopting acts, preparing drafts, etc.⁷¹ In accordance with these rules, the legislative body shapes and reveals its group intention. This means that the context is not in someone’s mind, but is public and constitutionally approved, and what we call legislative history is simply legislative context, constituting objective and accepted “rules of the game” by which the legislator operates⁷². Since knowledge of the context determines understanding of a legal text, therefore legislative context is very important.

This objection concerns low quality and internal differentiation of legislative materials. The usefulness of legislative materials in the process of law interpretation and application should be evaluated at three levels: creating legislative materials, providing legislative materials, and using legislative materials in the interpretation process. First, one may wonder if bills, justifications, amendments, and other preparatory materials are suitable for use outside the legislative procedure due to the purpose and form of their preparation. Hence, it should be postulated that they were created in such a way as to be suitable for such use. The assumption that legislative materials are also prepared for the interpreter – a court or citizen – would improve their quality and make their language more comprehensible. Some legal cultures place great importance on “arguments which in the course of law interpretation refer to intentions and beliefs of the factual legislator, whereby official documents accompanying the legislative process at its subsequent stages are accepted as the primary source of decisions in this matter”⁷³. This, for example, is the case in Sweden, where the text of a provision is very often only a sort of a “headline”⁷⁴. Also, creating a hierarchy of legislative materials in Polish and Spanish legal orders would be a great facilitation. In Spain, the Real Academia Española’s official dictionary is a source that not only may, but should be, used in linguistic interpretation of provisions. This solution is quite well accepted by Spanish jurists⁷⁵. Perhaps a suitable body could also be established for the development and selection of materials with a view to unifying and improving historical interpretation? Without pre-judging whether such solutions are proper, it must be said that this is one of the possible ways. Undoubtedly, the high technical and textual quality of preparatory materials should be the goal of everyone’s aspirations, no matter how they view their subsequent use. It is claimed in Spanish literature that the quality of preparatory work is of great importance even at the stage of the project creation⁷⁶. The fact that parliament, within the limits set by the constitution, enjoys freedom in adopting laws may lead to the thesis that the bills are not important but the adopted law is, and that any defects and imperfections of bills may be corrected on the legislative path⁷⁷. This is misleading because all bills that are to become law should be of the highest quality from the beginning⁷⁸. Literature gives government bills as an example: the government has access to information and technical means relevant to bill’s development and which cannot be replaced with action in the parliamentary phase⁷⁹.

The second element influencing the use of legislative materials is their availability. There can be no effective application of even the best-developed documents if it is difficult to reach them. Bielska-Brodziak points to such problems as documentation not transferred after legislative processes during former parliamentary terms, no record of work of parliamentary subcommittees, and general issues such as time consumption and costliness of using legislative materials, and the need to make an intellectual effort to get through texts full of specialised terminology⁸⁰. Neither is there full and universal access to legislative materials in Spain. As in Poland, the legislative history recorded on the Internet may be incomplete, not all bills are published on websites⁸¹, and tracing materials requires knowledge and a lot of time from a citizen⁸². The third line of criticism concerns issues related to the appropriate use of legislative materials. Improper use of materiales prelegislativos neither solves interpretation problems nor helps find the correct reading of a provision; it can, at most, add diversity to the content of a judgment, or serve its rationalisation as a convenient “authentication” from which little results factually. Literature mentions some fundamental mistakes by courts. Criticism concerns, among other things, random selection of preparatory documents, and a “pick and choose” strategy⁸³. Also, over-general references to information from the materials are negatively perceived⁸⁴. Some Spanish authors note that, in certain judgments, references to legislative history do not add anything to the argument, and are only a purely historical illustration⁸⁵. It is noteworthy that criticism of trabajos preparatorios often relies on the fact that the preparatory materials are misused or of poor quality. Yet, criticising legislative materials on this basis is like saying that a washing machine is a useless tool because lots of bad ones are produced, and also because not everyone can use it. Analysis of practice reveals some deficiencies in the use of legislative materials by courts, as well as in the preparation of these documents at the legislative stage. When analysing legislative materials in abstracto, we should regard them first and foremost as an opportunity. Moreover, allowing the use of such materials does not mean that we should refer to them in every situation; the interpreter reaches for legislative materials when, for some reason, they are unable to discover the legislator’s intent with the use of other tools. It seems, anyway, that the question of whether to use legislative materials or not is no longer valid, and the only question worth asking again and again is about how to use them to use them well.