The Role of Language Cognition in Legal Method
Author | Raul Narits |
Pages | 14-24 |
Raul Narits
The Role of Language Cognition in Legal Method
In connection with the interpretation of rules of law, a relatively new direction in the legal method is the issue of linguistic interpretation of laws. Interpretation of legal texts is always to a certain extent an issue of knowledge of language; the language in which the legislator has formulated the rules of law. This leads to the idea that legal method must be based on linguistic and language philosophy theories, that is, on semantics. One of the classical arguments in legal hermeneutics is the empirical truth that there is a "limit to the meaning of words", which enables one to discriminate between interpretation and elaboration of law (lawmaking in its external, formal-legal sense).
A linguistic approach to law is certainly not a genuinely new problem. It is generally known that Hume, in his "Treatise on Human Nature" postulated the view of law as a form of language. This meant and still means a transfer of certain language functions to law. Nevertheless, the transfer of language functions to law has more frequently been understood as the communicative function of language: law as a communication medium between the legislators and the implementers of law. Although this view is rather metaphysical, it is possible to derive a rational point from this, namely that language is the first and essential prerequisite for the existence of law1. Pursuant to this statement, law must be viewed as a system of legal rules and norms which is valid on the basis of language. Interpretation of any text begins with the interpretation of the meaning of words. Under this, the meaning of an expression or relation between words in general language usage or, if ascertainable, in a special use of language is understood2. This is the so-called circular structure of comprehension, where the word-sentence-idea relation becomes clear within its hermeneutic circle3. Certainly, not only the written form of legislation is language, but also for example, the results of the activities of a judge when he or she endeavours to subsume actual circumstances under a body of abstract facts contained in a legal norm. When subsuming, a judge must transform everyday life into the "language of law" or, in other words, must give the result of this work a specific form, that of legal language. In this context, the author agrees with the idea expressed in the legal literature that the expression "legal language" should not be used at all, because legal language is not a specific systematic sub-language. Unlike some other sub-languages, a specialist language possesses a single tool: the specific part of its vocabulary, that is, its terms. Every other attribute belongs to the general language. Restrictions spring from the matter-of-fact nature of a specialist language as there is the tradition to make use of the normative grammar or the written language and to avoid clearly informal words. It is essential that the meaning of the words of general language may, in specialist vocabularies, be narrowed, specified or metaphorised, but not broadened or changed4. Thus, neither the body of abstract facts nor the actual circumstances are the object of legal hermeneutics, but instead their descriptions written down in language. An interesting conclusion can be drawn from this: both, the legal norm and the case to be decided are presented to the law implementer as written texts.
It has already been admitted that the linguistic approach to law is not new. However, in the discourse of legal method it can be seen that in connection with the interpretation of rules of law and the application of law, new accents have emerged. This is the semantic interpretation of legal texts which has been of certain interest for the last couple of decades5. As interpretation of texts means the interpretation of their meaning, the semantic theories of linguistics and philosophy of language are being resorted to. A classical argument of traditional legal hermeneutics was to "search for the limits of the meanings of words" or even the creation of law based on a single case. Thus, a distinction between interpretation and law elaboration was being attempted6. What is novel, is the question of the rule of law (norm) and the rule of meaning (semantic or syntactic) in their legal sense. Rules of law acquire their independent reality through their written form, but this reality differs from the reality of natural sciences (the exact sciences or technical sciences) in quality. In natural sciences, a "law" is a certain quantity, and if it has been described, frequently in a formalised form, it becomes for a further process of cognition, a quantity which is described beyond cognition. Legal texts are written expressions of language. It is possible to explain the expressions of language by rules and concepts of certain quality. Thus, there are phonological, syntactical and semantic rules. At the same time, it is not possible in linguistics to define a rule uniquely and absolutely. With the assistance of linguistic pragmatics, it is possible to span the "bridge" between language rules and behaviour. Thus, the use of letter symbols (words) in legal texts can be described as behaviour according to language rules. The legal literature describes two basic possible approaches:
1) closed cases, wherein the issues of meaning are not topical, at least currently, and there is consensus among the interpreting community (jurists); and
2) the so-called open cases, as to which the interpreting community lacks consensus7.
For the legal order of Estonia, the issues of legal terminology are among the most topical. When in the late 1980’s in Estonia, work was commenced to restore and improve the national legal system, almost everyone in the field lacked the drafting experience necessary for legislative texts. The issue was not to develop a system of original legislation. Very often the substantial quality of a piece of legislation depends on how much of the already existing legal culture has managed to accumulate in it. As to the language of legislation, national legal orders usually have no models to follow. The legal literature mentions that by the 1930’s, a strong legal language foundation had been formed in Estonia, in that, the necessary terminological systems had been created. In 1934, in Tartu, a "Glossary of Law", compiled by Karlson and Veski, containing Estonian legal terms and their German and Russian equivalents, was published. Many lawyers participated in the compilation of the glossary and a high value was set on their work. At that time, research into legal language was carried out by academic law societies, especially the Tartu Academic Law Society. The results of the work were introduced in the periodical Õigus (Law). Professor Jüri Uluots has formulated the view of that time concerning the requirements of legal language in an explanatory note to the draft Civil Code as the following: a code must be readable by every average citizen; the text must be worded clearly, avoiding foreign words and neologisms which have not become sufficiently conventional; the vocabulary must be exact and give answers to questions; one and the same word, and if necessary, one and the same sentence, must be used, as much as possible, to express the same concept; and the wording should be sufficiently abstract but uniquely comprehensible. Professor Uluots has also recommended the use of short sentences, as much as possible, each of which should contain an independent line of reasoning, which is related to the previous and the following sentences8.
A "linguistic turn" is traceable in the humanities from the early 1970’s. Since then, the main key words of jurisprudence have been normativity, meaning and interpretation. These three words constitute the best characteristics of the crucial points in the relations between law and language, and no current discussion of law linguistics can do without them. If normativity is taken as the point of comparison between law and language, there is a "family connection" between them, that is, both law and language are based on certain rules. Therefore, a comparison on the validity of rules can be established. Its in the validity of rules that law and language have common features. Without knowledge of the rules of the spheres of law and language, the assertion of "family relations" remains a superficial and external belief if accepted as true, which only contains the idea to transfer linguistic methods into jurisprudence. On the one hand, this view is rather common in jurisprudence, that is, to use the methods and rules of other sciences as aids in jurisprudence. Such an instrumentalist approach is rather frequent in legal literature. Legal semantics or the semantics of legal texts and concepts though, is not an interpretation problem which can be solved by mere technical means. On the other hand, the semantics of legal texts and concepts should not be reduced to the criticism of legal language, which questions the use of foreign words, neologisms, complex syntax and the like in legal texts. It is the hope of the author that such a solution to the problem belongs to the past9. Giving up criticism of law as language criticism does not obviously mean that there is no need to draw attention to an excessive use of foreign words or a too complex sentence structure, which are expressions of voluntarism in the use of language. For example, there have been some obviously justified remarks in the legal literature that an attempt is being made to legitimise the alienation tendency of legal language from the general language in the General Principles of the Civil Code Act ("GPCCA")10. Only a few days before the draft was to be adopted by the Riigikogu,11 subsection 2 (1) of the Act read as follows: "the interpretation of a law is to be based on the common meanings of words as used in the law unless the law itself...
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