Servants or Masters? Linguistic Aids in Legal Interpretation (original) (raw)
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The relationship between law and language has been widely discussed as early as in 1963 when Mellinkoff published the well-known book ‘The Language of the Law’ in the US. The linguistic analysis presented in this paper is an attempt to study legal interpretation from an interdisciplinary perspective. In particular, it is intended to demonstrate actual disputes (mostly US cases) that require interpreting statutes as how legal reasoning and linguistics interact. Starting with a brief account of linguistic indeterminacy and different forms of indeterminacy in legal contexts, the author will then focus on various approaches provided by legal scholars and linguists when it comes to uncertainty in construing law. Finally, a Polish case study will be presented to exemplify how linguistic analysis, along with legal argumentation, can practically contribute to the effectiveness of legal drafting and interpretation.
THE LANGUAGE OF LEGAL RULES SOME NOTES ABOUT PLAIN-MEANING IN LAW
This essay examines the common opinion that there is a close relationship between the indeterminacy of legal language and hard cases. The analysis begins with Frederick Schauer's conception of plain meaning in law in order to argue that the coexistence of hard and easy cases in a legal system is independent of the written or unwritten nature of the rules involved in each case and that the distinction between hard and easy cases depends much more on the pragmatic features of legal language and the specific context in which rules are applied. To sum up the main theses presented in the essay, first, legal disputes and, especially, litigation might be either encouraged or prevented by using, according to the circumstances, a determinate or an indeterminate lexicon. Moreover, the fact that in some cases legal meanings are equivalent to ordinary meanings, while in other cases they are not, is a pragmatic feature unrelated to the original linguistic field of the terms or the nature of legal concepts used in legal provisions. Finally, the similarities and differences existing in law between technical legal meanings and ordinary meanings is the outcome of the general conception of legal language implicit in the concept of law adopted by legal interpreters.
THE LANGUAGE OF LEGAL RULES SOME NOTES ABOUT PLAIN-MEANING IN LAW di
2013
This essay examines the common opinion that there is a close relationship between the indeterminacy of legal language and hard cases. The analysis begins with Frederick Schauer’s conception of plain meaning in law in order to argue that the co-existence of hard and easy cases in a legal system is independent of the written or unwritten nature of the rules involved in each case and that the distinction between hard and easy cases depends much more on the pragmatic features of legal language and the specific context in which rules are applied. To sum up the main theses presented in the essay, first, legal disputes and, especially, litigation might be either encouraged or prevented by using, according to the circumstances, a determinate or an indeterminate lexicon. Moreover, the fact that in some cases legal meanings are equivalent to ordinary meanings, while in other cases they are not, is a pragmatic feature unrelated to the original linguistic field of the terms or the nature of leg...
SKASE Journal of Translation and Interpretation, 2024
This paper aims to answer certain questions raised by the contrasting views on translators' interpretation of legal texts. While interpretation is presented by some scholars as an inherent element of legal translation, others argue that by interpreting, the legal translator oversteps their authority. There are also many other, more nuanced views. Therefore, the main research questions posed in the first section of the paper are whether the term 'interpretation' is understood uniformly by different scholars andif notwhat accounts for the differences. To find answers, various meanings of interpretation are analysed in the second section, and in the third section, an overview of the relevant legal and translation literature is provided. On this basis, certain reasons for the terminological confusion are identified in the fourth section. A particularly relevant point of controversy turns out to be whether the translator may interpret an indeterminate source legal text in the sense of opting for one of the few possible meanings. This point is the main focus of the fifth section, which discusses the translator's authority and competence to resolve such problems and also includes two practical translation examples to better elucidate the theoretical considerations. The legal translator is presented as an active legal discourse participant who may be competent to interpret a legal text in the aforementioned way, but it is not their role to do so due to their specific position in the communicative situation of legal translation. The conclusions drawn in the sixth section emphasise the need for greater terminological clarity and the importance of the legal translator's role and legal competence.
A Pragmatically Oriented Theory of Legal Interpretation
Based on a dynamic approach to the understanding of meaning, the author develops what he calls a pragmatically oriented theory of legal interpretation. This theory differs both from formalistic and anti-formalistic approaches to legal interpretation, for interpretation is, according to the author, at the same time a discovery of some levels of meaning and a construction of other levels of meaning. Meaning is thus understood as a gradual entity, which forms at various levels. It implies both the inter-linguistic dimension (i.e. sense) and the language-world relation (i.e. reference). It is never produced all at once, but is rather formed progressively, that is, step by step. In this, the context is essential. The context is only provided in a concrete (real or paradigmatic) case for which we are to interpret a certain legal disposition. For that reason, it is a judge as the interpreter of the text who (besides the author of the text) necessarily contributes to the final definition of its meaning. The article is published in the English original and in its Slovenian translation by Tilen Štajnpihler.
Linguistics for Legal Interpretation
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"Linguistics for Legal Interpretation" is a language resource for scholars and practitioners of law who engage and work with statutory interpretation. It draws on lexical semantics, pragmatics and sociolinguistics to both understand and solve language challenges central to the interpretation effort. In addition, this book offers best practice guidelines for dictionary use as well as an introduction to corpus linguistic methods to assist legal interpreters in determining either ordinary or technical meaning. The book illustrates the various language tools and devices by applying them to case law and legislation, and it does so in an accessible style of writing.
A short note on interpretation of legal texts.
In this short note I wish to argue that the conventional legal interpretative technique is not a process that can somehow ‘yield’ unique or singular ‘interpretation’ simply because interpretation is not static objective, dispassionate, process somehow operating on a legal text to extract a true unique or singular meaning. On the contrary the very act of interpretation disrupts, modifies and transforms the legal text whereby the searched for ‘meaning’ suddenly becomes meaningless and sense of justice is a process of coherence and reference. Such an experience of interpretation is reminiscent of our experience of the development of common law.
Philosophical and Legal Foundation of the Study of Legal Interpretation Technique
WISDOM
The article deals with the philosophical and legal foundations of legal interpretation technique. In particular it is pointed out that in spite of the fact that the legal interpretation is an integral procedure realized within the framework of law implementation (especially - law enforcement), at the same time it has its own meaning and due to this fact deserves a separate scientific attention. Legal interpretation is aimed not simply at clarification of the meaning of normative or other prescriptions, but at finding out the actual will of the legislator. It is pointed out that, contrary to the “classical” postulates of legal interpretation, the source material for interpretation is not only the texts of normative legal acts. It is clear that in the countries of the Anglo-Saxon legal family interpretation is aimed at clarification of general principles, legal trends, which are reflected in the judicial precedents on similar cases. However, in the countries of the Romano-Germanic leg...