Distinguishing the Distinguishable: Interpretative Norms and Interpretative Criteria in Adjudication of Meaning (original) (raw)

Normativity of Rules of Interpretation - revised

Rules of interpretation are normative in the sense that they deliver reasons for interpretative decisions. The normativity of those rules is not based on convention, but on various (and sometimes conflicting) values of political morality. Rules of interpretation reduce the complexity of the judicial decision-making process. The question of justifying the rules of interpretation is not a semantic question. Those rules are not supported by a definite semantic theory, but by political philosophy, justifying adoption of a certain set of values pertaining to political morality. In this respect, certain differences may be observed between legal common law and civil law cultures.

The derivative concept of legal interpretation

2015

The aim of this paper is to introduce the foreign reader to the concept of interpreting the law dominating in Polish jurisprudence. In Polish legal doctrine, several important concepts of legal interpretation have been developed. For the purposes of this paper, one will be mentioned, and the second one will be thoroughly developed. The first is the clarification concept of interpretation, developed by Prof. J. Wróblewski, while the second one is the derivative concept of the interpretation of the law, developed by Prof. Maciej Zieliński. As a starting point, in order to indicate the sources of the derivative concept, one should take a closer look at the concept proposed by Prof. J. Wróblewski. The clarification concept of the interpretation of law was based on the assumption that a part of the legal provisions does not require interpretation and is understood directly. The adopted assumption was justified by the maxim clara non sunt interpretanda, and the process of interpretation itself according to this concept only became necessary when the legal provision was not sufficiently clear. In other words, interpretation can take place only where there is no direct understanding (isomorphia), i.e., in the situation of ambiguity of the lined provision 1. The task of interpretation was to determine the meaning of particular words or phrases of legal language and thus determine the contents of the "pattern of the proper conduct". It is worth remembering that "the clarification concept of interpretation can be considered as an important part of the more general derivative concept of the interpretation" 2. The derivative concept itself was presented by Prof. Z. Ziembiński in 1966, and developed by Prof. M. Zieliński in 1972 3. The latest version of the derivative concept of legal interpretation is the "integrated concept of the interpretation", which is the subject of the paper.

Ordinary Meaning A Theory of the Most Fundamental Principle of Legal Interpretation

There is a long-standing judicial commitment to interpreting language in legal texts according to its ‘ordinary meaning’. That is, courts have uniformly agreed that words in legal texts should be interpreted in light of accepted standards of communication. The constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are thus of crucial importance to the interpretation of legal texts. Yet, beyond very general characterizations or assumptions that the answers are self-evident, neither the constituent nor the evidential question has been comprehensively examined by courts or commentators. This book provides a theory that answers the constituent question and a general framework for how the determinants of ordinary meaning (i.e., the evidential question) should be identified and developed. The fundamental problem with the common process used by courts for determining the ordinary meaning of texts, such as significant reliance on acontextual dictionary definitions, is that it often does not result in interpretations that reflect the ordinary meaning of the textual language, or only coincidentally does so. One main flaw in the judiciary’s approach is a failure to properly consider context. Certainly, there is a tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that meaning is inherently contextual. A significant aspect of framing the ordinary meaning inquiry, and considering arguments about it, therefore involves considering the contribution that context makes to meaning. One way to capture generalizable meanings is to conceive of ordinary meaning as being primarily based on semantic meaning. Further, a distinction between ‘narrow context’ and ‘wide context’ can be made, with ordinary meaning being determined on the basis of consideration of facts from the ‘narrow context’. In addition, one marked feature of interpretive principles is that they often serve to restrict the domains of legal texts, thereby creating a gap between literal meaning and ordinary meaning. Yet framing ordinary meaning as being primarily based on semantic meaning, determined from consideration of ‘narrow context’, does not eliminate interpretive discretion. When context is considered, the assignment of meaning invariably has an ineliminable element of interpreter discretion. This is true with respect to indexicals and quantifiers, as well as other linguistic phenomena. Nevertheless, focusing on the systematicities of language can often narrow the range of interpretive discretion and improve the judiciary’s determination of ordinary meaning.

Linguistic Objectivity in Norm Sentences: Alternatives in Literal Meaning

2011

Assuming that legal science, specifically with regard to interpretation, has to provide the tools to reduce the uncertainty of legal solutions arising from the use of natural languages by legal orders, it becomes a central matter to identify, in this limited domain, the spectrum of semantic variation (and its boundaries) that language brings to the definition of a norm expressed by a norm sentence. It is in this framework that the present paper, analyzing norm sentences as a specific kind of speech act, examines the relation of the legal order to natural language rules, the limits of linguistic uncertainty, and alternatives of meaning as distinct possibilities of norms covered by the text (that are, because of this, still within what literal meaning is). Considering interpretation just as the linguistic decoding process, the reverse of the process of creating norm sentences, the paper also argues that subjects not connected with the relation between norm sentences and norms (mainly, normative defeasibility) are analytically distinct and should be removed from the field of language.

The Rationale of Law. The Role and Importance of the Logical Method of Interpretation of Legal Norms

DOAJ (DOAJ: Directory of Open Access Journals), 2017

The interpretation of law was and remains an indispensable postulation, inherent and the most significant in the application of the law. Through interpretation the aim is to clarify the obscure text, to rectify the imperfection of the text of the legal norm, to remedy its shortcomings, and in consequence, to specify the exact meaning of the legal norm. Interpretation concerns itself with emphasizing the authentic meaning of the normative texts, finding the spirit of the lawmaker-author, the authentic legal sense of the actions that occurred, of the conduct of the perpetrator, and the significant legal connection of these meanings. The necessity of interpreting legal norms is justified by several considerations, out of which the most important remains the one regarding the act that the lawmaker cannot and need not provide everything in the normative text. The unity between the spirit and the letter of the law, the continuity of interpretation, the useful effect of the legal norm are just a few of the principles that need to be taken into account in interpretation. Be it official (obligatory), or unofficial (doctrinary), interpretation remains an extremely important stage in the application of the law: the literature of specialty consecrates five important methods of interpretation (grammatical, historical, systematical, teleological, and logical). The latter method allows for the formulation by the interpreter of certain rational assessments, done through operations of generalization, of logical analysis of the text, of analogy, through applying formal logic. The present study will mainly deal with this method, analyzing the main logical arguments used in interpretation.

An almost pure theory of legal interpretation within Legal Science

Legal interpretation and Scientific Knowledge

The present paper started as a commentary on Giorgio Pino’s article presented in the II Lisbon Meeting on Legal Theory on Legal Interpretation and Scientific Knowledge, but soon gained independence. Nevertheless, in addition to the issues mentioned, the two main ideas he presents — that legal interpretation is not a scientific operation and that legal knowledge cannot be considered a kind of science, and, consequently, “politics” is a much more appropriate notion to resort to — are also addressed. For this endeavour, firstly, I lay out a conceptual framework of law and legal science — a soft normativist model — which will allow me to explain my options regarding the subject of legal interpretation and therefore avoid a “dialogue of the deaf”. Secondly, I outline the basis of my general theory of legal interpretation, in which I will address questions such as: what do we mean by legal interpretation? What is its object and is law hopelessly indeterminate? Who are the subjects of interpretation? If there are different interpretative moments, and how do we interpret? This last aspect is decisive because, unlike what is usually argued, interpretation is a norm-guided activity by natural language and interpretative norms. Thirdly, I try to answer the question regarding the scientificity of legal knowledge, addressing questions such as the possibility of obtaining legal knowledge — is there any determination and objectivity? — and the importance of the distinction between clear and hard cases. I finish by arguing that there is no doubt that interpretation can be to some extent a scientific activity.

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.

Partialities in the Methods of Legal Interpretation

Journal of Law Policy and Globalization, 2014

This topic will respond the following fundamental problems: First, theoretical one, concerning the theoretical basis of the legal-interpretation method. Its questions would be: (a) Why are there many differences and partialities in interpreting the same legal text? (b) Can any of all existing methods of legal interpretation provide us a comprehensive legal-interpretation? Following the fundamental problems, the research then aims firstly at finding the advantage and the weakness of each method of legal interpretation.