About the Meaning of the Legal Aspect of Practical Semantics in Estonian Legal Order
| Author | Raul Narits |
| Pages | 11-19 |
Raul Narits
About the Meaning of the Legal Aspect of Practical Semantics in Estonian Legal Order
In many aspects, young legal orders develop and are developed on the basis of the already existing theory and practice of law. Therefore it is absolutely evident that Estonian legal order cannot be original in its content by any means. At the same time, no models can be found for the semantic form of this legal order. Nevertheless, it is ius scriptum and its language of manifestation that play a decisive role in the legal culture of Continental Europe. This role is decisive for the reason that rationalisation of a legal order begins and ends with the legislative process, on the one hand, and the realisation of law (laws), on the other. Both of those factual components of rationalising a legal order are interrelated. In today's rule of law, special importance is attributed to the aspect of law-realisation related to the public authority, namely the application of law, in which the adjudicative activity of courts can be distinguished. Thus, in the rule of law, special importance is borne not only by the opportunity of protecting one's interests (both in private and public law) by means of the regular way of law but by legitimate, i.e. equitable, protection of those interests by independent courts. For that reason, it has been justifiably noted in specialist literature that in everyday legal practice and the related theory of law, more and more thought is given to the question of how rationality in legal behaviour and decisions or in scientific cognition can be attained, given the transparency between social relationships, which complicates orientation in the legal reality. In reality, it can and must be understood that the bounds of rational orientation have already been reached, if not crossed, long ago. Hence the following question emerges: what are the presumptions and limits for rationality in law and jurisprudence being possible at all? Are there any a priori reasonable principles, structures or procedures which can be cognised by everybody? Is it right that these principles, structures or procedures transform even the pre-legal order into a legal obligation which must be met inevitably as a norm of correct behaviour? Or are we not dealing with nationally organised legal systems that provide evolutionary independence to the power of their normative autonomy and the positivity of the political and legal decisions (which should be understood here as the national order of human behaviour), protected by themselves, not only with regard to religion but also to human mind and morals, and that nowadays have no normative institutional rationality? 1
This article is aimed at regarding, from the author's viewpoint, one possible jurisprudential theory for rational understanding of legal order - the structuring theory of law. It is very important that cognition of a legal order should be based on the rules which could be designated as "laws of jurisprudence". Naturally, this does not mean legislation within the concept of objective law. Rather, these laws can be referred to as certain regularities, ignorance of which would, however, either impossibilitate or substantially complicate the legal process of decision-making, both in law-making (as the so-called decisional function is contained in law itself 2 ) or the practical legal process of making decisions (the application of law).
In recent years, a conception involving cooperation between linguists and jurists has emerged in the discussion of jurisprudential methodology. This constitutes an interdisciplinary approach to motivation of legal decision-making and involves, on the one hand, "practical semantics" and researchers thereof 3 , and on the other hand, representatives of the so-called structuring theory of law. 4 In specialist literature, the structuring theory of law has also been referred to as the Müller school. 5 The role of language and linguistic arguments in the discussion and practice of legal working methods serves as a connective principle in such interdisciplinary approach (cooperation).
Practical semantics deals with the rules of language underlying the behaviour of those who participate in linguistic communication. Those rules cannot exist by themselves, extrabehaviourally. Practical semantics disagrees with the thesis of realistic semantics that the meaning of a legal norm can be objectively and unambiguously derived from the formulation of the norm. Understanding (cognition) of a legal norm is not determined by the formulation of the norm. The meaning of the formulation is determined in the interpretation practice and must be determined by the applier of law, because that applier is under the obligation to decide. Since the criteria of whether legal norms are complied with or not are established by the practice that has developed in a rule-of-law society, a departure from or nonadherence to that practice by the applier of law will change the content of the legal norm and constitute the creation of a new rule. 6
It must be noted that a rule and the formulation of the rule are two different entities. A legal norm is more than barely a text. In deciding about the meaning and content of a legal norm, legal practice must be taken into account. 7 It was stressed already by Wittgenstein that words and sentences acquire specific meanings in the context of their application (the language game). The process of constituting a legal norm, e.g. the determination of the meaning of the formulation and the norm-texts themselves, are all parts of the single application practice. 8 In addition, practical semanticists draw a distinction between interpretation and development of law. In summary it can be said that practical semantics regards the structuring theory as one conforming to the rule-concept conception of Wittgenstein in the study of legal methodology. 9 M. Herbert has characterised the structuring theory of law as a post-positivistic theory of legal methodology which disagrees with the traditional positivist approach, whereunder the applier of law gives preference to the legal norm (a norm may represent the objectified will of the legislator - the objective interpretation theory; a legal norm may contain the will of a historical legislator - the subjective interpretation theory). 10
The opinion that "... academic methodology provides a judge with neither assistance nor chances of verification" 11 has been expressed in specialist literature. In some aspects, however, the reason therefor is inherent in the practice itself. More exactly, the methodology of judges' work is narrow-scoped. 12 For example, a recent analysis of adjudications of the Estonian Supreme Court demonstrated that the systematic interpretation method had been one of the most extensively used while the legal historical approach had been practically unexploited. However, literary (linguistic) considerations are not out of place, and with a certain reason. Namely, legal practice is established more on argumentation and interpretation rules selected on the basis of pragmatic considerations rather than doctrinal methods. 13 All this implies that the problem of understanding legal text is not at all primary in a judge's practice. Therefore, legal practice cannot be assisted by one or other of the methodological concepts. At the same time, it is important to bring together the conditions (positions) of the theory and practice of decision-making. Figuratively, this would mean the preparation and development of theoretical bases for practical legal work.
On the other hand, there may be situations in which the main attention is focused on the text itself. For example, a draft Act entitled the "Act on ensuring the Intelligibility of Acts" 14 was introduced to the Riigikogu (Estonian parliament). Subsection 1 (1) ("Concept of intelligibility of an Act") thereof provides that an Act is deemed intelligible if its meaning can be understood, after necessary penetration, by a person with at least elementary education who is fluent in Estonian and who is not a specialist of law-making, jurisprudence or the specific field concerned by the Act. The following provisions relate the expression of the meaning of a law with the entry into force of the law in an explicit and unambiguous description of changes occurring in the legally regulated living mode of the society. However, a derogation is made with regard to terminologies of any specific field, which does not cover the concept of the intelligibility of Acts.
Apparently it must be admitted that the objective of the above-referred bill is rational in every way. It is, however, doubtful whether the intelligibility of legal language can be improved by means of legislation. 15 The problem lies in the fact that everyday language as a sign system used for understanding each other is, like the legal system, a complicated phenomenon. An intertwinement of those two complex systems can only result in new problems. And moreover, the complexity of legal language means more than only terminological matters.
Thus the already mentioned preparation and development of theoretical bases for practical legal work still have and will have their specific place. Problems of decisional theory and legal practice would then include the problems of norm and (legal) facts; the question of the structure and normativity of norms; the question of overall boundedness to law, of what the judge is bound to and of how that boundedness will be realised by the judge.
The examination of those questions will be of practical relevance when legal...
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