The Constitution and the Language of the Law (original) (raw)

THE LANGUAGE IN THE LAW-MAKING PROCESS

INTCESS 2018 5th International conference on education and social sciences, 2018

The paper is dedicated to the role of the language in the law-making process. In the ancient times non-linguistic signs prevailed, and the words were used along with the elements of the ritual widely implemented in the process of creating and implementing legal rules. Representatives of ancient civilizations sought to convert non-linguistic signs into words to denote the rules of human behaviour. The problem of the language in the law-making process was caused out of necessity to issue the laws in the written form. The study and development of the language in the law-making process is relevant up to now as any situation being subject to legal influence can be viewed as legal interpretation and identification. The purpose of the paper is to analyse the language in the law-making process. The essence of law is highlighted in the work as there are different definitions for law in general and the law-making process in particular. The novelty of the research is that the law making process is analysed from the angle of linguistics. The language of law has specific characteristics. Law in all its manifestations is expressed through the language. Legal orders acquire the characteristics of applicable law and appear in official written texts issued by state bodies in a strictly specified order. Any idea related to legal regulations is expressed through the language since it can be perceived and realized provided that it appears in verbal and written form.

In the Beginning was the Word: The Role of Text in the Interpretation of Statutes

South African Law Journal, 2012

Michael Bishop and Jason Brickhill, 'In the Beginning Was the Word: The Role of Text in the Interpretation of Statutes' (2012) 129 S African LJ 681 This article deals with statutory interpretation under the South African Constitution. It has been cited with approval several times by the South African Constitutional Court. The article takes as its point of departure a set of recent decisions in which the Constitutional Court has interpreted legislation in a manner that is incompatible with the words of the statutes. This article criticises the Court’s approach in these cases and argues for a return to the carefully calibrated approach to interpretation that the Court has always advocated. We describe the Court’s current interpretive doctrine to set the scene for the charge that the Court has been unfaithful to that approach. We then discuss each of the six cases – SAPS, Chirwa, Director of Public Prosecutions, Bertie Van Zyl African National Congress, and Van Vuuren. Read together, these cases indicate that, when it suits it, the Court is willing to ignore legislative text. This unrestrained interpretive method threatens the rule of law and the separation of powers. We argue that there are three drivers of this approach: practitioners’ and courts’ over-use of section 39(2); an academic legal culture that encourages disregard for the text; and the single-step structure of the interpretive method. We propose a two-stage approach to mitigate these risks: first, identifying the available meanings and explaining how they fit the text; and, second, relying on the values of the Constitution to choose a meaning. We do not call for a return to the arid literalism of yesteryear, and support the Court’s attempt to secure just outcomes, but argue that it may do so without sacrificing the text.

The Effects of Plain Legal Language in Renouncing the Rights Embodied in Latin Maxims

Plain Legal Language (PLL) emerged as opposed to legalese (traditional legal language) has been criticized for being archaic, incomprehensible and wanting of effective communication. Many developed countries have endorsed PLL in legal drafting yet, in Sri Lanka, lawyers still follow the age old forms out of habit even in the absence of a prescribed form. This paper, examines the effect of renouncing the legal rights available to guarantors by law embodied in Latin maxims to a layman who signs as a guarantor without the help of a Notary Public by expressing their meaning in PLL. This paper focuses on a sample clause containing two Latin maxims: beneficium divisionis and beneficium ordinis seu excussionis which has been revised by using a process of revision created by the writer. The Original and Revised Clauses were circulated among a group of English speaking individuals to formulate an opinion on their degree of comprehension and their views by comparing the two clauses. The findings reveal that the Original Clause is complicated and gobbledygook and the Revised Clause is understandable at first reading as the meaning is clear and succinct. Certain participants expressed that Latin maxims when translated lose their true meaning and they doubted the acceptance of the revised clause before courts without any precedent. The paper concludes by citing case law to answer the question of precedent and justifying the moral obligation of a legal draftsman to draft in PLL in a country where Standard English is spoken only by a minority. Keywords—Plain Legal Language (PLL), Legalese, Maxims, beneficium divisionis, beneficium ordinis seu excussionis

Constitutional aspects of clarity of legal provisions

Magyar nyelvőr (Nyomtatott), 2022

Ágnes Czine university Professor at Károli gáspár university of the reformed Church, hungary, deputy head of the Institute of criminal Sciences, constitutional Judge, constitutional court of hungary constitutional aspects of clarity of legal provisions abstract one of the types of social language variants is the technical language, the characteristic of which is that it uses a specific vocabulary and conceptual system. legal language is also a special form of technical language, so it has a specific technical vocabulary. Compared to other professional languages, however, an important difference is that not only lawyers but everyone must understand it. laws and regulations must be applied and followed by not only the authorities and the courts, but it should be understood by everyone to whom it applies. therefore, a special requirement for legal regulations is that the content of legal norms be clear, precise and unambiguous. the question of normative clarity is a constitutional expectation, and the constitutional court is on guard to ensure it. The first part of the article shows, through concrete examples and Constitutional court decisions, which are the most common cases of violation of normative clarity (for example, unclear wording, imprecise framework provisions, overly general wording). In the second part, the author presents the impact of international legal principles on the hungarian legal language, with particular regard to the adoption of concepts developed by the european court of human rights or the uS Supreme court into the hungarian legal language (for example: the right to a fair trial, engel criteria, clear and present danger, chilling effect). Based on all this, the reader can get a glimpse into the approach of legal language, the dilemmas of codification formulations and the work of the Constitutional Court to ensure clarity of norms.

E. T.: The Extra-Textual in Constitutional Interpretation

1984

In reviewing laws for constitutionality, should our judges confine themselves to determining whether these laws conflict with norms derived from the written Constitution? Or may they also enforce principles of liberty and justice when the normative content of those principles is not to be found within the four corners of our founding document?" I In two oft-cited articles Professor Thomas C. Grey has answered these questions, contending that judges who appeal to sources beyond the written document are acting as the framers wished. The implications of this conclusion are potentially far-reaching. For if Grey is right, then freewheeling judicial review can be justified even by reference to that most conservative of constitutional standards: the framers' intentions. Who then will take seriously the case for principled judicial restraint? Grey claims that the natural rights tradition of the 18th century created a reservoir of legally binding principles that could be drawn upon by judges as an unwritten constitution, supplementary to the written one. Rejecting this approach, some scholars have argued that the natural rights tradition is (and was originally perceived to be) irrelevant to constitutional interpretation.2 This article defends an intermediate position: that the written Constitution was meant to embody the natural rights commitments of the framers, and that therefore judicial appeals to "higher law," for example, are not justifiable to the extent that they lead to a distinction between written and unwritten constitutions. From this perspective the positivists are correct in their insistence upon the exclusive authority of the written document, but fundamentally misguided in their understanding of the nature of this docu

The pliability of legal texts under a transformative constitution in perspective

2012

The importance of the factor of political climate in constitutional adjudication has, in fact, been 3 underlined by Mendes who opines: 'As a condition of intelligent and effective decision-making, if not of institutional survival itself, courts need to be perceptive and reactive to the surrounding political climate. Constitutional decisions may face resistance and cannot but rely on the allegiance of political partners to be enforced. A court that is insensitive towards this fact is less capable of