The mens legis, or intention of the law, constitutes the teleological hermeneutic criterion that seeks to identify the purpose and objective intended by the legislator when enacting a norm. Essential to Legal Hermeneutics, this institute transcends literal interpretation, being transversal to all branches of Law, notably in Constitutional Law and in the application of public order norms, aiming to ensure the social efficacy of the legal precept.
Concept and Foundation
The mens legis is not to be confused with the mens legislatoris (will of the historical legislator). While the latter focuses on parliamentary debates and the subjectivity of the authors of the norm, the mens legis has an objective nature, detaching itself from the legislator the moment the law enters into force to integrate the legal system as an autonomous organism. Its legal nature is that of a guiding principle of interpretive activity, essential to avoid excessive attachment to formalism (in claris cessat interpretatio) which, frequently, leads to anti-juridical or inefficient solutions.
Historical Origin and Evolution
Historically, the transition from 19th-century French exegesis—which prioritized the will of the legislator—to François Gény's School of Free Scientific Research marked the hermeneutic turning point. In the Civil Law system, the evolution of legal thought consolidated the idea that the norm must be interpreted in a way that grants it maximum effectiveness (principle of effectiveness). In Brazil, the reception of teleological hermeneutics is corroborated by the theory of Friedrich Carl von Savigny, who established the logical, grammatical, historical, and systematic elements, with the teleological element being the pinnacle of contemporary interpretation.
Legal Provision and Normative Framework
The Brazilian legal system has codified the need for teleological interpretation. Article 5 of the Law of Introduction to the Norms of Brazilian Law (LINDB - Decree-Law No. 4,657/1942) expressly provides: "In the application of the law, the judge shall attend to the social ends to which it is directed and to the requirements of the common good." Complementarily, Article 20 of the same LINDB (included by Law No. 13,655/2018) reinforces that, in the administrative, controlling, and judicial spheres, the decision must consider the practical consequences of the norm, aligning itself with the teleology of the system.
Practical Application and Jurisprudence
Brazilian Superior Courts apply the mens legis as a tool for overcoming gaps or interpreting conflicting norms. In the Supreme Federal Court (STF), the use of this technique is evident in the control of constitutionality, where the Court seeks "interpretation in accordance with the Constitution" (additive sentence), preserving the norm by extracting from it the meaning that best aligns with fundamental precepts.
In the Superior Court of Justice (STJ), the principle is frequently invoked to set aside excessive literalism in favor of consumer protection or the social function of the contract (e.g., interpretation of the Consumer Defense Code). Consolidated jurisprudence reaffirms that grammatical interpretation cannot be the sole guide when it conflicts with the social purpose of the norm, as observed in various rulings regarding the unseizability of the family home (Law No. 8,009/1990).
Related Principles and Divergences
The mens legis dialogues directly with the Principle of the Unity of the Constitution and the Principle of Maximum Effectiveness. The doctrinal divergence lies in the tension between legal certainty (stability and predictability of the letter of the law) and justice in the specific case (teleological flexibility). Classical positivist currents, such as that of Hans Kelsen, warned of the risks of judicial subjectivism, arguing that interpretation must remain within the "frame" of the norm. However, Brazilian neo-constitutionalism has consolidated the prevalence of principled values over semantic rigorism.
Contemporary Relevance
Currently, the mens legis is the antidote to legislative obsolescence. In a scenario of rapid technological and social transformations, the written norm often becomes static. Teleological hermeneutics allows the Judiciary to update the meaning of the law without the need for constant legislative reform, ensuring that Law remains an instrument of social pacification and not a bureaucratic obstacle. The practical impact is the mitigation of the risk of teratological decisions that, although technically "literal," are devoid of axiological rationality.
Legal and Jurisprudential References
- Brazil. Decree-Law No. 4,657, of September 4, 1942. Law of Introduction to the Norms of Brazilian Law. Art. 5 and Art. 20.
- Brazil. Constitution of the Federative Republic of Brazil of 1988. Art. 1, III (Dignity of the Human Person) as an interpretive vector.
- STF. ADI 1,127/DF. Rapporteur Justice Carlos Velloso. (Discussion on hermeneutics and the purpose of the norm).
- STJ. REsp 1,837,644/SP. (Application of teleology in Private Law).
- Gény, François. Méthode d'interprétation et sources en droit privé positif. Paris: LGDJ.
- Savigny, Friedrich Carl von. System des heutigen Römischen Rechts.
