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2019
This book discusses the question of whether legal interpretation is a scientific activity. The law’s dependency on language, at least for the usual communication purposes, not only makes legal interpretation the main task performed by those whose work involves the law, but also an unavoidable step in the process of resolving a legal case. This task of decoding the words and sentences used by normative authorities while enacting norms, carried out in compliance with the principles and rules of the natural language adopted, is prone to all of the difficulties stemming from the uncertainty intrinsic to all linguistic conventions. In this context, seeking to determine whether legal interpretation can be scientific or, in other words, can comply with the requirements for scientific knowledge, becomes a central question. In fact, the coherent application of the law depends on a knowledge regarding the meaning of normative sentences that can be classified (at least) as being structured, systematically organized and tendentially objective. Accordingly, this book focuses on analyzing precisely these problems; its respective contributions offer a range of revealing perspectives on both the problems and their ramifications.
Legal interpretation and Scientific Knowledge
An almost pure theory of legal interpretation within Legal ScienceThe 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.
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.
Studia Iuridica Toruniensia
The convolution of facts and norms: new approach to legal reasoning and interpretation2020 •
VNU Journal of Science: Legal Studies
Statutory Interpretation: How Legal Reasoning and Linguistics InteractThe 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.
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.
In this paper I outline a comprehensive theory of legal interpretation based on an assumption that legal text, understood as the aggregate of texts of all legal acts in force at a particular time and place, describes one rational and coherent possible world. The picture of this possible world is decoded from the text by interpreters and serves as a holistic model to which the real world is adjusted when the law is applied. From the above premise I will limit myself to drawing two conclusions for how legal interpretation should be carried out. First, I argue that the possible world described by the legal text has to be ‘accessible’ from the real world, i.e. it has to be feasible to transform the actual world into the described one. Were it otherwise, the possible world could not serve as a model for adjustment. The accessibility requirement imposes obligations on the interpreters to secure the rationality of the possible world decoded from the text, amongst other to secure that the description of this world is not contradictory and – as a consequence – the law of excluded middle is obeyed in the possible world described by the legal text. Secondly, I argue for the inevitability of interpretative discretion arising from the requirement to decode a sufficiently ‘saturated’ picture of the possible world., i.e. possessing enough properties to resemble the actual world. As texts have a limited number of sentences and worlds have an unlimited number of properties, interpreters have to supplement the picture of a possible world to achieve its coherence. This involves the inclusion of some additional, non-predetermined features that integrate with the properties of the world predefined by the legal text. This process of saturation consists of filling in so-called ‘places of indeterminacy’ (Roman Ingarden) with content implicated by other features of the possible world. I also argue that the discretion resulting from the necessity of filling in the places of indeterminacy is justified by the requirement of fulfilling the intention of the lawmaker to make the possible world described by the legal text real. The theory presented here is based on contemporary theories of discourse representation and so-called ‘text-world theory’ by J. Gavins. Phenomenalism and causal (historical) theories of reference provide its philosophical background. IF YOU WANT TO DOWNLOAD THE PAPER, PLEASE USE THE LINK TO THE PAPERS.SSRN.COM PAGE (PROVIDED ABOVE).
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.
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.
In matters such as legal interpretation, analytical legal theory (ALT) has long focused on the structure of thought, rather than on the psychological process of thinking. In doing so, despite accepting that interpreting is a psychological process, linguistic and logical analysis was favoured in lieu of sociological, psychological and behavioral enterprises. This is mainly because the latter-dubbed, at the best possible scenario, «soft core science»-contradicted, in his predictive aim, the paradigm of the «free-willed rational man» that ALT presupposed. But here's the twist: the model seems flawed. Rationality does not entirely explain the functioning of the human brain. Neuroscience and Evolutionary Psychology state the case that the human brain functions in such a way that it primarily replicates our genes over our interests or wills. In this paper we submit that it is perhaps time to conceive «naturalizing» legal interpretation by complementing the anthropologically spare model of ALT by attending to the both blades of the scissor in Simon's metaphor: the invariants of both language and human interpreters. Our point of departure is the neoskeptical theory and the highlighted voluntas of legal interpretation in legal realism à la génois, particularly that of Riccardo Guastini. We are primarily interested in a theory of legal interpretation with explanatory power: describing and explaining what input (that is, what combination of facts and reasons) produces what interpretative output. Our claim is that a theory of interpretation (lato sensu) will necessarily be incomplete if it does not address the conditions of the human interpreter and account for the difference between «hardware» and «software», or, as we call them, the permanent (P-)conditions and contextual (C-)conditions of the interpreter. In our first approach at an explanatory model, the description of actual interpretations of legal agents-as well as the underlying legal arguments-is a depiction of variables which, in turn, are dependent upon invariants of human behaviour. It is these biological and psychological invariants of interpretation statements qua empirical data that are subject to analysis. We conclude that addressing contextual conditions is also necessary: each contextual condition is unique and variable, but the «existence» of contextual conditions and its impact on the interpretative output is a permanent condition and should therefore be addressed in a comprehensive explanatory model.
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...
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