Norms on Language and the Regulativeness of Constitutive Norms (original) (raw)
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Norms are language dependent in the sense that they are necessarily a product of linguistic expressions. This rather common statement demands for two clarifications. On the one hand, language is to be understood here lato sensu, in such a way that encompasses linguistic expression through signs, colors and gestures as well as other types of behavior 1. The scope of this paper, however, is focused on linguistic legal expressions stricto sensu; that is, the use of language through the enactment of constitutions, statutes and similar types of official normative instruments. It will conversely not deal with all types of legal linguistic expressions lato sensu which would require an altogether different analysis. On the other hand, even if some features of expressivism are accepted in this paper, the asserted «language-dependency» of norms does not commit oneself to expressivism or hyleticism (or even to a compatible view between both); the assertion of a language-dependency of norms rather transcends this dichotomy as it merely points out to the fact that norms presuppose normative linguistic statements of some type 2. It is well known that whereas expressivism focuses on the function of norms and the pragmatic aspect of norm sentences, hyleticism focuses on the semantic aspect of the latter. The expressive conception of norms (Bentham, Austin, Kelsen, Ross) is a theory that sustains that norms are proprio sensu «language-dependent» insofar they are themselves the result of a certain kind of use (a prescriptive use) of language 3. Quite distinctively, the hyletic conception (Kalinowski, Weinberger) sustains that norms are conceptual and proposition-like entities, i.e., the meaning of certain norm sentences 4. Under the latter account, the existence of norms does without any linguistic expression or the pragmatics thereof. Under the former, the same does not happen. However, hyleticism accepts that norms are improprio sensu «language-dependent» to the extent that albeit __________
Linguistic Rules Applied in the Interpretation of Legal Norms
2010
Abstract Considering that legal language is a technical language with particularly close ties to the common language, and culture, the experience in the field of translation and interpreting of legal texts needs a framework of linguistic theory, methods and strategies receiver oriented and also in accordance with the era of globalization and multilinguism. The work of these legal translators can be affected by the communicative aspects of reception in bilingual and multilingual jurisdictions.
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The normativity of meaning—introduced by Kripke in 1982, and the subject of active debate since the early 1990s—has been historically understood as involving norms with a particular structure: the structure of duty-imposing norms. But there exist norms of a different type, with a very different structure: authority-conferring norms. Philosophers thinking and writing about the normativity of meaning—normativists, anti-normativists, and even Kripke himself—seem to have failed to consider the possibility that semantic norms are authority-conferring. I argue that semantic norms should be understood as having an authority-conferring structure, and show how this allows normativism about meaning to escape the two most popular arguments against it.
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Interpretative norms are contingent norms of legal systems: a system either comprises them or it does not and, if it does, it can comprise either interpretative norm «A» or «B». Interpretative norms are norms that provide criteria (namely, lawmaker's intention or coherence of the system) to choose among the alternatives of meaning given by a linguistically uncertain norm sentence. When applied by the agent, an interpretative norm either solves the uncertainty at hand (selecting one meaning) or, if such reduction of interpretive discretion to zero is not the case, simply decreases the range of uncertainty. In this latter scenario, a solution ought to be obtained (prohibition of non liquet) and the agent is «free» to elect other criteria for the choice. However, criteria provided by interpretative norms and these other «elected criteria» are not at the same level (they have different deontic statuses): the permissible selection and application of such «elected criteria» to a linguistically uncertain norm sentence is only admissible when the mandatory criteria provided by interpretative norms are exhausted.
Normativity and Linguistic Form
It is ironic that, before the advent of the institutionalized practice we call "modern linguistics", the notion of language as a normative activity was central to discourse on language. But the complex ideological process of defining modern linguistics as the scientific study of language involved the explicit exclusion of issues of linguistic normativity. To determine how best to redefine linguistics we must first examine how it came to be given its current definition. Following this, the paper discusses the implications of redefining linguistics so that, once again, the normativity of language holds a central position.
SOCIAL FACTS & THE SEMANTIC CONCEPTION OF NORMS. CUSTOMARY NORMS AS A TEST OF ONTOLOGY 1
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The essay addresses the debates about the ontology of norms considering the case of accounting for customary norms. It undertakes and defends a stance in favor of a semantic ontology by developing a framework for the explanation of norms as abstract objects and their linking with social facts to be identified in categories like "customary", "enacted", "legal", "grammatical", and so on. Furthermore, the work addresses the rival conceptions (pragmatic and eclectic) by showing the specific impossibility that these face for giving a satisfactory account on customary norms. The inquiry concludes by exploring some possible insights from the philosophy of mind to explain the conceptual nature of norms as mental representations.