Legal Language and Legal InterpretationAuthor(s): Jerzy WroblewskiSource: Law and Philosophy, Vol. 4, No. 2, Legal Reasoning & Legal Interpretation (Aug., 1985),pp. 239-255Published by: SpringerStable URL: http://www.jstor.org/stable/3504672Accessed: 14/01/2010 14:52

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available athttp://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unlessyou have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and youmay use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained athttp://www.jstor.org/action/showPublisher?publisherCode=springer.

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printedpage of such transmission.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

Springer is collaborating with JSTOR to digitize, preserve and extend access to Law and Philosophy.

http://www.jstor.org

JERZY WROBLEWSKI

LEGAL LANGUAGE AND LEGAL INTERPRETATION

The relations between the problems of legal interpretation will be presented here together with a discussion of some features of legal language. A central point to our discussion is that the fuzziness of legal language is considered a determining factor of the problems of legal interpretation.

I. LEGAL LANGUAGE

1. Legal language is the language in which legal prescriptions or legal norms (see section 3) are formulated.1 We are interested here in statutory legal systems in which law is thought of as given in or derived from statutes and other normative acts. The theoretical paradigm of the system of law is the system consisting of enacted rules and their consequences acknowledged as valid.2

Legal prescriptions are linguistic formulations (prescription- formulations) and their meanings (prescription-meanings).

B. Wr6blewski, Jezyk prawny i jezyk prawniczy (Legal Language and Juridical Language), Krakow 1948, part II, III; K. Opalek and J. Wr6blewski, Zagadnienia teorii prawa (Problems of Legal Theory), Warszawa 1969, ch. II, 1.1; Z. Ziembinski, 'Le langage du droit et le langage juridique. Les criteres de leur discretement', Archives de philosophie du droit 19 (1974); T. Gizbert- Studnicki, 'Jezyk prawny a jezyk prawniczy' (Legal Language and Juridical Language), Zeszyty Naukowe Uniwersytety Jagielloniskiego. Prace prawnicze 55 (1972); Idem, 'Czy istnieje jezyk prawny?' (Does the Legal Language exist?), Panistwo i prawo 3 (1979); W. Lang, J. Wr6blewski and S. Zawadzki, Teoria panistwa i prawa (Theory of State and Law), Warszawa 19802, ch. 16, 1-16.3. 2

Cf. J. Wr6blewski, 'Operative Models and Legal Systems', Artificial Intel- ligence and Legal Information Systems, vol. I, ed. by C. Ciampi, North- Holland 1982, pp. 218 ff.; Idem, 'Modelli di sistemi giuridici e potenzialita dell' informatica giuridica', Informatica e diritto 4: 2 (1978), pp. 58 ff.

Law and Philosophy 4 (1985) 239-255. 0167-5249/85.10. ? 1985 by D. Reidel Publishing Company.

Jerzy 4Wroblewski

2. Legal language is treated as a sub-type of natural language. It shares with natural language several relevant semantic and

pragmatic features, such as fuzziness, contextuality of meaning and viability as an instrument of communication. The character- istics of a legal language are rather problematic and controversial, and even its very existence is discussed.3 Not dealing here with these controversies I use the term "legal language" as a technical term and its scope is determined by the definition given above.

3. There are many definitions of a "legal norm".4 Here this term is used to refer to a rule constituted by the elements inherent in

legal prescriptions according to a determined model. If so, then in

many contexts one can speak either about legal prescriptions or about legal norms. In the following I will use the term "norm" and, hence, norms are expressed in the legal language.

By "norm-formulation" I understand the linguistic expression of a rule, constituted from the elements inherent in legal prescrip- tions, and identified according to definitional features on the semantic and/or pragmatic level.

Semantically, a norm is defined by its meaning, thought of as a

pattern of due behavior.5 If this identification is possible without

taking into account an actual use of the norm-formulation in a

given context, then it corresponds to the "hyletic conception of a norm".6 Norm-meaning is, thus. the meaning characteristic of a norm-formulation.

Pragmatically, a norm is defined as a linguistic formulation which performs a "stimulative" function in a given context. If this

3 E.g. T. Gizbert-Studnicki, 'Czy istnieje...,' passim. 4 W. Lang, J. Wr6blewski and S. Zawadzki, op. cit., ch. 17. 5 J. Wroblewski, Meaning and Truth in Judicial Decision, Helsinki 19832, pp. 1-21. 6 About the "hyletic" and the "expressive" conception of norms, cf. C. E. Alchourr6n and E. Bulygin, Sobre la existencia de las normas, (Valencia 1979), ch. 7; and 'The Expressive Conception of Norms' in New Studies in Deontic Logic, ed. by R. Hilpinen (Dordrecht: D. Reidel, 1981).

240

Legal Language and Interpretation

is the defining feature of a norm then it could be ascribed to an "expressive conception of a norm". Hence the norm-meaning, if any, is reduced to its contextually bound function.

The bridge between these two conceptions could be searched for in the potential use of linguistic utterances in determined

types of contexts. It is an open question whether this could be

accepted from the point of view of the expressive or the hyletic conception of norms.

The choice between the hyletic and the expressive conception of legal norms cannot be discussed here. It seems that the problems of legal interpretation can be dealt with within the framework of both conceptions. The hyletic conception of normative meaning, however, allows a simpler presentation of these issues and will be used in the present essay.

4. The legal language - as a sub-type of natural language - is treated as a fuzzy language.7

The basic intuition concerning the fuzziness of a language appears when discussing the decidability of a statement that some

part of reality x, y, z belongs to a determined linguistic class A, B, C referring to this reality. Here the extensional description of

linguistic fuzziness is taken as the basic one. For a hard language, the following thesis holds:

(1) Vx: (x A)v- (xEA).

For a soft language the following is true:

(2) Vx :-[(xEA) v-(x EA)].

Fuzzy language is defined by two theses:

(3) 3x: (x EA) v -(x EA) (4) 3x: - [(x E A)v-(x EA)].

7 Cf. J. Wr6blewski, 'Fuzziness of Legal System' in Essays in Legal Theory in Honor of Kaarle Makkonen, Oikeustiede-Jurisprudentia 16 (1983), (Vam- mala 1983), pp. 315-319 and lit. cit.

241

Jerzy Wroblewski

Thesis (4) means that there are parts of reality for which one :annot decide on the strength of the semantic rules of the language whether that part of reality (individual) belongs to a given linguistic :lass or not. This undecidability is the defining feature of a fuzzy anguage together with thesis (3), which states that there are some oarts of reality which fit the linguistic classes in a manner character- stic of a hard language.

The semantic undecidability in question is the ultimate source )f the doubt concerning the meaning of a norm-formulation inso- ar as it is thought of as referring to the relevant parts of reality.

The fuzziness defined by means of the undecidability of "x E A"

.ccording to the semantic rules of a legal language is the first and nost intuitive type of fuzziness, and can also appear outside the

egal interpretative discourse. In the following it will be indexed s "fuzziness ".

In the legal interpretative discourse the doubt concerning the

xpression "x EA" is, however, also linked with certain features

,f the legal system and the content of the evaluations of the inter- )reter. Here one has to go outside the purely semantic field and to

ingle out the two new kinds of fuzziness: fuzziness2 and fuzzi- ess 3 (see section 11). Thus the term "fuzzy language" has several

leanings, constituting a family resemblance based on the decid-

bility of expressions of the form "x E A".

In legal discourse there are also certain types of fuzziness which rill not be dealt with in the present essay. For example, there is a

ossibility of syntactical fuzziness due to the syntactical features f a norm-formulation. In this case the syntax of the formulation enerates doubts concerning the meaning and reference of the orm in question.

Moreover, there is a fuzziness of validity when, according to the

Ccepted criteria of validity within a legal system, one cannot ecide whether a norm belongs to the system in question or not.8 his fuzziness concerns not only the features of legal language like

Cf. J. Wroblewski, 'Fuzziness...', pp. 319-322.

242

Legal Language and Interpretation

the fuzziness of reference and syntactical fuzziness, but the con-

ceptual framework of the language we use to speak about the legal system in force and about its elements.

II. LEGAL INTERPRETATION

6. The term "legal interpretation" has several meanings. In the widest sense this term refers to any ascription of a normative

meaning to a norm-formulation. This sense of "interpretation" is convenient when dealing with legal language in general: any use of the language implies interpretation, which is thought of as a "derivation" of some meaning from a linguistic formulation.9

The term "legal interpretation" is also used, especially in the

legal practice of the application of law, in a narrower sense.10 In this narrow sense, a norm-formulation requires interpretation only when there is doubt about its meaning in a given context. This narrower sense of "legal interpretation" is thus pragmatically oriented: the same norm-formulation in some contexts calls for

interpretation, but in others it does not require it because its

"plain" or prima facie meaning satisfies the needs of its user. In this conception "interpretation" is thought of as a "clarification" of the meaning of a doubtful legal norm-formulation. We will use here the narrow concept of legal interpretation.

7. There are several typologies of legal interpretation, depending on the features considered as relevant e.g. according to the inter-

preter or the normative validity of the results of interpretation.

9 E.g. Z. Ziembinski, Problemy posdtawowe prawoznawstwa (Basic Problems of the Legal Science), Warszawa 1980, ch. 3.5.1; 5.4; Z. Zielinski, Inter- pretacja jako proces dekodowania tekstu prawnego (Interpretation as the Process of Decoding of a Legal Text), Poznan 1972. The terminological opposition between a "derivative" and "clarificative" conception of legal interpretation has been formulated in F. Studnicki, Wstep do informatyki prawniczej (Introduction of Legal Informatics), Warszawa 1978, pp. 41 ff. 10 Cf. J. Wr6blewski, Meaning..., pp. 22-48, 71-103; Idem, Sadowe stosowanie prawa (Judicial Application of Law), Warszawa 1972, ch. VII.

243

Jerzy Wr6blewski

Using the narrow concept of legal interpretation for the purpose of the present essay, it is important to distinguish between the

operative and the doctrinal interpretation.

8. The operative interpretation takes place if there is a doubt

concerning the meaning of a legal norm which has to be applied in a concrete case of decision-making by a law-applying agency.11 This interpretation is thus a case-bound interpretation. Operative interpretation has to fix a doubtful meaning in a way sufficiently precise to lead to a decision in a concrete case.

Operative interpretation is an evaluative process because of the evaluative components of interpretive heuresis and/or of the justi- fication of an interpretive decision.12 The operative interpretation, as a rule, is presented as the unique right answer to an interpretive doubt and concerns only a concrete interpreted norm-formula- tion. The right interpretation discovers the "true meaning" of the interpreted text (true meaning thesis).13

A theoretical analysis of an interpretive decision demonstrates, however, that the content of an interpretive decision depends on the choices and evaluations adopted by the interpreter which

justify his decisions. The decision is therefore relative to the chosen interpretive directives and the evaluations accepted by the decision-maker. The interpretation can thus be described as an "individual-norm transformation".14

In spite of the fact that the operative interpretation is case- bound there are some tendencies towards making it functionally

l1 L. Ferrajoli, 'Interpretazione dottrinale e interpretazione operativa', Rivista int. di filosofia del diritto 1 (1966); J. Wroblewski, Sadowe..., ch. VII (11.2). Idem Zagadnienia teorii wykladni prawa ludowego (Problems of the Theory of Interpretation of the Socialist Law), (Warszawa 1959), ch. V-VII. 12 J. Wr6blewski, Sadowe ..., ch. X (3); Idem, Meaning..., pp. 61, 80. 13 J. Wr6blewski, Zagadnienia..., ch. VIII ? 2; A. Aarnio, Philosophical Perspectives in Jurisprudence, (Helsinki 1983), ch. 8. 14 Cf. A. Peczenik, The Basis of Legal Justification, (Lund 1983), ch. 2.3.2, 2.3.6.

244

Legal Language and Interpretation

generalizable and universalizable. Hence the search for the uni-

formity, certainty and predictability of interpretative decision. The argumentative vehicles for these values are arguments concern- ing formal justice and precedent and, last but not least, the true meaning thesis.

The result of an operative decision is thus an "interpretation proposition" or "interpretative statement",15 stating which of the possible meanings of a norm-formulation is the right one. Operative interpretation removes the fuzziness of legal language for a given case or - owing to the tendency towards generaliza- tion - also for the future cases if it is accepted in practice.

9. The doctrinal interpretation is proper for legal dogmatics. Its crucial task is the systematization of valid law, and for this purpose it has to construct an appropriate conceptual apparatus and, some- times, to remove the doubts concerning norm-formulations. If the systematization in question is thought of as a reformulation of a system of law, then doctrinal interpretation is one of its tools.16 The result of the interpretation in question can be a state- ment determining the linguistically possible meanings of an interpreted text. The doctrinal interpretation, however, often not only describes the linguistic possibilities, but also chooses one of them as the "true meaning" of the text in question. But there is in principle no commitment to the true meaning thesis, as in the operative interpretation.

Sometimes judicial reasoning is treated as the canon of legal reasoning.17 This view cannot be discussed here, but one should stress that in spite of the similarities due to the problems any

15 Cf. A. Aarnio, On Legal Reasoning, (Turku 1977), p. 17; A. Aarnio, R. Alexy and A. Peczenik, The Foundations of Legal Reasoning, Rechtstheorie 12 (1981), pp. 425 ff. 16 Cf. e.g. A. Aarnio, On Legal ..., ch. 4.2.2.3. 17 In the most radical form this view is expressed by C. Cossio, cf. e.g. La teoria egologica del derecho y el concepto juridico de libertad, (Buenos Aires 19642), Introduction, section 3 and pp. 113 ff., 127 ff., 164 ff., 522 ff. Cf. the description in J. Wroblewski, Sadowe ..., ch. XIII (2) and lit. cit.

245

Jerzy Wroblewski

interpretative reasoning has to solve, there are vital differences between the operative interpretation and the doctrinal one. The former is bound not only with the true meaning thesis but is also a part of judicial decision and appears as an utterance having a performative function in the whole hierarchical and authoritative process of decision-making. A doctrinal interpretation has no such features.

The similarities between these two types of interpretation are, however, deeply relevant: the task of legal interpretation in the narrow sense is to remove the doubt concerning the meaning of a norm-formulation. The process of ascription of a meaning to this formulation is justified in the same manner, although there are differences between the sources of doubt affecting each type of interpretation.

The idea of a fuzzy language can be used to explain the problems related to both types of interpretation. But the best example of the relations between fuzziness of the legal language and the

problems of legal interpretation is that of operative interpretation. I will, therefore, use the operative interpretation as the object of my analysis.

III. FUZZINESS AND LEGAL INTERPRETATION

10. There are three types of situations the decision-maker faces: either the norm-formulation fits the facts of the case, or the norm- formulation does not fit them, or it is doubtful whether the former or the latter is the case.

The first two situations are those in which lex clara est: there are no doubts that either x E A or that not x E A (see section 4). When "x E A" is true we have a situation of isomorphy: the norm understood in its prima facie meaning fits the case. When (x E A) then the situation is also clear: the norm cannot be applied to the case in question.

The third situation requires an interpretation: lex non clara est and it is doubtful whether x EA or - (x EA). The solution

depends on the meaning of the norm in question.

246

Legal Language and Interpretation

From the semiotical point of view lack of clarity is treated as the direct result of the fuzzinessl of the legal language. According to our definition, there are some x for which one cannot decide on the strength of the semantic rules of the legal language whether x EA or -(x EA). The decision-maker has to use some extra-

linguistic means to decide the issue.

11. One has to stress, however, that the doubts in question are created not only by semantic features of the legal language.

The doubt arises also when the norm-formulation in question, understood in its prima facie meaning, contradicts other norms

belonging to the legal system. According to widely held opinion, the decision-maker has to decide in a situation of this kind which of the two contradictory norms is valid and/or applicable to the case. One of the instruments used for removing the conflict in

question is the interpretation: one has to determine the meaning of one of the conflicting norms in such a way that the conflict disappears.18 On the level of interpretation it is, as a rule, doubt- ful which of the conflicting norms requires an interpretation and, hence, which norm-formulation has the meaning to which the meaning of the other norm has to be adapted. The doubt has a systemic character and refers to accepted features of a legal system demanding the removal of contradictions. Moreover, this removal, although problematic in general theory, is imposed on the decision-maker by the duty to decide the case. If the rules concerning the conflict of law do not decide the question, then the interpretative choice is an operative necessity in all situations in which one cannot decide whether x EA or (x EA) without removing the contradiction in question. One can discuss whether an analogous situation occurs when there is no contradiction between the norms but only a conflict appearing as a lack of harmony between them.

18 Cf. K. Opalek and J. Wroblewski, Zagadnienia ..., ch. III (3.2); W. Lang, J. Wr6blewski and S. Zawadzki, op. cit., ch. 19.3.2; J. Wroblewski, Zagad- nienia...,ch. VI ? 2, 1.

247

Jerzy Wroblewski

This kind of undecidability between x EA and -(xEA) represents a type of fuzziness different from that discussed earlier. Here the doubt does not arise from the semantic rules of the legal language alone, but from the operative consequences of the ac-

cepted features of the legal system. Thus this is the new concept of fuzziness 2 which has to be singled out. This fuzziness is related to the basic problem of decidability defining a fuzzy language (section 4), but is also related to the rules governing the consistency of a legal system.

There is also a third type of interpretative doubt concerning x EA and -(x EA). It starts when the result of an application of a norm understood in its prima facie meaning would be evaluated as instrumentally faulty, or unjust, or contrary to the require- ments of morality, or, generally speaking, as unreasonable and un-

acceptable for some relevant audience.19 Then the decision-maker, as a rule, has doubts whether the norm-formulation ought to be

applied in its prima facie meaning or should rather be interpreted in such a way as to be reasonable and acceptable. This appears as the fuzziness 3, due neither to the semantic features of the legal language nor to the features of the legal system but to the func- tional context of the interpretation and application of law. What links the fuzziness3 with the preceding types of fuzziness is a

family resemblance: the x EA issue cannot be decided without

taking into account the function context. This is the relevant feature which allows us to speak of the family resemblance be- tween the three types of fuzziness.

The three types of fuzziness correspond to the three types of context which influence the meaning of a norm-formulation, viz.

legal language, legal system and functional context. The contextu-

ality of legal language is an acknowledged fact, and the theoretical

analysis of legal interpretation demonstrates what types of context

19 A. Aarnio, R. Alexy and A. Peczenik, op. cit., pp. 437-444.J. Wroblewski, 'Towards Foundations of Judicial Reasoning', in Metatheorie juristischer Argumentation, ed. by W. Krawietz and R. Alexy, Berlin 1983, pp. 250 ff.

248

Legal Language and Interpretation 249

are operative in an ascription of a meaning to a norm-formula- tion.20

12. The situation of a doubt is thus a pragmatically defined situa- tion. The situation in operative interpretation is that of a concrete

decision-making, whereas in doctrinal interpretation the doubt is associated with the tasks of the dogmatic analysis of problems related to various types of situation, either imagined or based on

practical experience. An exception occurs when legal dogmatics comments on a concrete case, analyzing a decision made by the court.

The lex clara appears, therefore, when there are no doubts about the meaning of a norm-formulation. The norm-formulation understood in its prima facie meaning satisfies the needs of the user of the norm. Thus this conception of clarity has a pragmatic character and is linked with a concrete situation.21 A theoretical

explanation of the situational clarity of prima facie meaning offers several possibilities.

It seems that clarity as a lack of fuzziness1 can be treated as a kind of a Vorverstdndnis of a norm-formulation in a legal language, either in legal discourse or in a given situation. In any case this

acceptance of a prima facie meaning, i.e. of the clarity of the text, is subject-dependent in a given context. The prima facie meaning always exists if a norm-formulation is meaningful in a legal lan-

20 This corresponds to the singling out of three types of interpretation, viz. linguistic, systemic and functional one. J. Wroblewski, Sadowe ..., ch. VII (3). 21 In a situation of clarity there is an isomorphy between the norm and fact-situation, whereas the lack of clarity creates the need of an interpreta- tion. Cf. K. Makkonen, Zur Problematik derjuridischen Entscheidung, (Turku 1965), ? 5, B-C; J. Wr6blewski, Meaning..., pp. 78 ff. and lit cit. A. Aarnio, R. Alexy and A. Peczenik, op. cit., pp. 427 ff. For a discussion of this issue cf. M. van der Kerchove, 'La doctrine du sens clair et la jurisprudence de la Cour de cassation en Belgique', in L'interpretation en droit. Approche pluri- disciplinaire, ed. by M. van der Kerchove, Bruxelles 1976; G. Tarello, L'inter-

pretazione della legge, (Milano 1980), pp. 33-35, 37.

Jerzy Wroblewski

guage. Whether this meaning is accepted or the norm-formulation requires interpretation depends on the context of its use, and is viewed as a case of a fuzzinessl of this language.

Clarity as the lack of fuzziness2 means that there are no con- sistency problems related to an applied legal norm. In other words, that part of a legal system which is relevant to the application of a

legal norm to a decision does not contain any inconsistencies. Clarity as the lack of fuzziness 3 means that in the opinion of a

decision-maker the prima facie meaning of a norm is apt to lead to reasonable and acceptable results in the application of the norm to a given concrete case.

13. Legal operative interpretation occurs when there is no situa- tion of isomorphy. In this situation the norm-formulation under- stood in its prima facie meaning clearly covers the facts of the case or does not cover them. Using the x E A formula one can say that x either belongs to the positive core reference of the A (the norm covers x), or belongs to the negative core reference of A (the norm does not cover x). An interpretative situation occurs when there are doubts about the prima facie meaning of the norm-formula- tion in question and, thus, x is placed in the penumbra reference ofA.

The doubts concerning the prima facie meaning of the norm- formulation are based on the semantic rules of the legal language (fuzzinessl) or on some features of the legal system the norm

belongs to (fuzziness2) or on the interpreter's evaluations (fuzzi- ness3). In each case there is the problem of deciding whether x EA or -(x EA).

An interpretative decision should be a justified decision. The

accepted way of justifying such a decision is based on the use of interpretative directives and/or the evaluations underlying these directives.

The interpretative directives are of two kinds.22 Interpretative

22 J. Wroblewski, Meaning ..., pp. 77 ff.; Idem, Zagadnienia ..., ch. VIII ?1.

250

Legal Language and Interpretation

directives of the first level (DI1) determine the way the inter- preter should use the features of a given linguistic, systemic and functional context to determine the meaning of the norm-formu- lation. Interpretative directives of the second level (DI2) deter- mine how the first level directives should be used and how the possible conflicts resulting from their use should be solved. The interpretative directives of the two levels are chosen and used according to the corresponding evaluations (V1, V2).

The standard form of an justified interpretative decision could be, thus, stated as follows: "the norm N has the meaning N

according to the interpretative directives of the first level DI1, DI2, ... DI1, and of the second level D12, DI2, ... DI, and the evaluations V1 V, ... V1; v2, ... 2 ".

Following our analysis of the three kinds of fuzziness of the prima facie meaning of the norm-formulation, one can associate an interpretative decision either to legal language, legal system, or to the situational context.

The form of the interpretative decision could be thus presented in the following way in which the justification by means of DI and V is abbreviated as "according to J": "the norm N according to J has the meaning N in the legal language LL and/or in the legal system LS and/or in the situation S".

An interpreted legal norm is always a part of a legal system and one can ask whether and under what conditions the inter- pretative decision refers to the legal language of the system or to the situation for which the interpretation is adopted. The former case is that of an interpreted legal language, the latter of a situa- tional use of legal language.

14. Let us examine the idea that an interpretative decision amounts to the determination of the meaning of a legal norm in a legal language. This seems quite an obvious opinion, but from the theoretical point of view appears rather problematic.

Were this opinion correct, legal interpretation would be a transformation of a fuzzy legal language into a hard interpreted legal language. It is so because after (efficient) interpretation the

251

Jerzy Wroblewski

doubt concerning the x E A expression does not exist: either x E A or ~(x E A). And if this holds for every x then - according to our definition - we have to do with a hard language (section 4 thesis 1).

This hard-language thesis seems rather problematic, however. There are the following points to be taken into consideration.

First, the transformation of the fuzzy legal language into a hard interpreted legal language could perhaps be treated as an ideal limit of the set of interpretative decisions if they covered all the possible situations of fuzziness. It seems that in practice legal interpretation concerns only a relatively small sub-set of the terms

appearing in a legal language, and this set is determined by rather

contingent factors, viz. by the doubts arising in solving concrete cases (operative interpretation) or in a dogmatic description of the valid law (doctrinal interpretation).

Secondly, if an interpreted legal language deals only with a

part of the expressions of the language and a part of possible types of fact-situations relevant to fuzziness, then it hardly can be treated as "a language" in the sense in which this term is used in the expression "legal language". The transformation of a legal language into an interpreted legal language appears thus rather dubious.

Thirdly, although the conception of an interpreted legal lan-

guage seems doubtful, one should mention that the interpretative decisions, if repeated consistently for a sufficiently long period of time by various interpreters, could function in the manner a hard

language functions, i.e., could be treated as transforming some

fuzzy terms into terms whose use does not involve any doubts. This is the role of a settled line of interpretation in legal practice ("interpretation-precedents") or of a commonly accepted doctrinal

interpretation. But this rather important fact does not transform the fuzzy legal language into a hard interpreted language.

15. The determination of meaning in legal interpretation can also be treated as a case of the situational use of language. Then an

interpretative decision determines whether x E A or -(x E A), in spite of the fuzziness1 of the language in which the norm is

252

Legal Language and Interpretation

formulated, or of the fuzziness2 or fuzziness3 of the norm in the context of the legal system or in its functional context.

This point of view is especially natural for an operative inter- pretation. Here the interpreted legal language functions - according to de Saussure's classical terminology - as la parole whereas the legal language functions as la langue. This point of view corre-

sponds to the basic properties of any natural fuzzy language in the practice of communication when the context removes fuzziness either explicitly by convention or implicitly by the use itself.

There are, however, some arguments which should be taken into account when discussing this point of view.

First, the point of view in question ignores the fact that even an operative interpretation is not always exclusively centered on the concrete case. There are arguments for treating an interpretative decision as future-oriented, based on the axiology of stability, certainty and predictability of legal decisions, or on the axiology of formal justice and the role of precedent as a tool for safe- guarding the decisional consistency in time.

Secondly, the situational point of view can give some support for an operative interpretation, but there are no strong reasons for accepting it for doctrinal interpretation in spite of the similari- ty of their basic characteristics.

Thirdly, the la parole construction cannot be taken without serious reservations, because pushed to the extreme it would not explain the communicative function of legal language and its instrumentality as a device for guiding human conduct.

16. An interpreted legal language can be thought of as a meta- language in relation to the legal language itself. The distinction between a legal language and its interpretation is related to the opposition between legal prescriptions and legal norms if a legal norm is thought of as the meaning of legal prescription. This idea, however, uses the term "legal interpretation" in a wide sense, whereas we have used it in the narrow sense (section 6). This view will not be discussed further here,23 although - given some

23 Cf. note 9.

253

Jerzy Wroblewski

terminological transformations - it seems not incompatible with the arguments of the present essay.

IV. CONCLUDING OBSERVATIONS

17. The present analysis of the relations between legal language and legal interpretation is based on several presuppositions con-

cerning interpretative reasoning.24 These presuppositions are evident but let me enumerate those relevant for my arguments.

"Some features of the legal language are relevant for the meaning of the legal rules expressed in it". This is the presupposition correlated with the thesis of the fuzziness1 of this language: "There are cases of application of a legal rule in which it is im-

possible to determine its meaning on the strength of the semantic rules of the language in which it is formulated".

There are also presuppositions related to fuzziness2: "An inter-

preted rule is a part of a legal system", and "Certain features of the legal system are relevant for determining the meaning of

interpreted rules". There are also presuppositions dealing with the fuzziness3

related to the situational context of an operative interpretation: "A legal rule is interpreted in a situational context existing in-

dependently of the interpreter". The evaluations mentioned above are a part of this context although their influence is not

presupposed, but stated as a source of interpretative doubt. Last but not least our concept of justification is also pre-

supposed: "The application of the rules of legal reasoning is

necessary for the justification of interpretative decisions" and "Evaluations are part of the reasons justifying an interpretative decision".

These presuppositions are accepted in the present essay and it is my contention that they have to be accepted in any theoretical

analysis of legal interpretation.

24 The presuppositions are cited from my paper 'Presuppositions of Legal Reasoning' presented at the IVR-83 Helsinki Congress, August 1983.

254

Legal Language and Interpretation

The analysis of the fuzziness of the legal language in relation to

legal interpretation demonstrates that the semantical conception of fuzziness1 covers only a part of the phenomena related to the undecidability of the expression "x E A" in operative or in doctri- nal interpretation. There are also concepts of fuzziness related to the legal system (fuzziness2) and to the evaluations of norms and their consequences (fuzziness3).

Legal interpretation in the narrow sense is thought of as a clari- fication of the meaning of norms, required by the fact that in some situations it is doubtful whether their prima facie meaning is an acceptable meaning. These doubts appear as the undecidabil-

ity between "x E A" and "'(x E A)". This is the standard way of

dealing with a fuzzy language, although not only the semantical

properties of this language are relevant but the pragmatic ones as well.

The differences between operative interpretation and doctrinal

interpretation are patent. An attempt to define the basic features of the interpretation of legal language cannot be based on theoreti- cal constructions which extrapolate the characteristics of one of them for the legal interpretation as a whole.

Legal interpretation in the narrow sense is always bound to a certain situation - if by "situation" we understand both the

application of law to a concrete case and the solution of legal dogmatic problem. Any interpretation concerns the legal language and is an interpretation of a norm related to other norms within a legal system. Every interpretative decision should be justifiable by the common standards justification which depend on inter-

pretative directives and evaluations.

Katedra Teorii Paistwa i Prawa

Wydzial Prawa i Administracji Universytet L6dzki U1. Narutowicza 59a 90-131 L6dz, Poland

255