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 law.1 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 understood.2 This is the so-called circular structure of comprehension, where the word-sentence-idea relation becomes clear within its hermeneutic circle.3 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 changed.4 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 decades.5 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 attempted.6 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 consensus.7
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 sentences.8
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 past.9 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 attributes special meaning to them.” This formulation as a manifestation of legal voluntarism was resolutely opposed by T. Erelt, who considered it inadmissible to attribute an arbitrary meaning to common words. As a result of this criticism, this provision was reworded as follows: “the interpretation of a law is to be based on the common meanings of words as used in the law unless special meanings of the words are directly used in the law.”12
To clarify the problem, section 2 of the GPCCA, entitled “Interpretation of law”, provides the following principles: subsection (1) states that “the interpretation of a law is to be based on the common meanings of words as used in the law unless special meanings of the words are directly used in the law”; subsection (2) states that “if a word has several common meanings, the meaning which is most compatible with the intent of the law is to be used”; and subsection (3) states that “a provision of law is to be interpreted together with other provisions of the law, following the intent of the law.” If it is considered that the order of subsections designates certain priorities of interpretation, there is reason to state that the legislator has given priority to linguistic interpretation. Probably, at that time, the legislator was of the opinion that without participation in the “language game”, it is not possible to understand the intent and purpose of the GPCCA.13
Recent proposals for amendment of the GPCCA apparently included an erroneous amendment. In the Commercial Code and Related Implementation Acts Amendment Act, an amendment was proposed for section 2 of the GPCCA. Subsection (1) was to be deleted and replaced with the following wording: “A provision of a law shall, first and foremost, be interpreted together with other provisions of the law, following the intent of the law and intention of the legislator, but not the grammatical meaning of the words.” This amendment was approved by the Riigikogu, but it also had to be proclaimed by the President. In that situation, the President found that the proposed amendment to the GPCCA was in conflict with the Constitution of the Republic of Estonia. The Constitution provides that Estonia is an independent and sovereign democratic republic (section 1), wherein the powers of the state are to be exercised solely pursuant to the Constitution and the laws which are in conformity therewith. Laws are to be published in the prescribed manner and only published laws have obligatory force (section 3). In this case, the President did not proclaim the Act.
In fact, it is difficult to understand the logic of those who proposed the above amendment. The modern catalogue of interpretation criteria includes linguistic interpretation which is a substantial point of departure for those who use, follow, and primarily for those who implement the law, in order to make decisions pursuant to law. This means that a legal text is, above all, the object of, or the departure point for, interpretation. Those who proposed the amendment were obviously willing to proceed from a systematic or logical interpretation. This is the only conclusion one can make after a careful reading of the text of the amendment.
Eventually, the Riigikogu reviewed the Commercial Code and Related Implementation Acts Amendment Act again and, after debate, resolved to amend the GPCCA as follows: in section 2, subsection (3) is considered to be subsection (1) and former subsections (1) and (2) are considered to be subsections (2) and (3), respectively.14 The President of the Republic proclaimed the Act by Resolution No. 5-723 of 30 May 1996.
It is instructive, by way of comparison, to read an analogous provision of the 1940 draft Civil Code (subsection 18 (1)) which states: “When interpreting a law the meaning of the words used in the law must be, above all, borne in mind. If the words have several meanings, the general meaning should be given priority over a special meaning and the common meaning over a metaphorical meaning, except in cases when the general or common meaning is not compatible with the content, spirit or purpose of the law.” In connection with this, the view has been expressed in the legal literature that the current wording of the pertinent section of the GPCCA has retained its original meaning, that is, the meaning contained in the proposal of 1994.15
It should be emphasised that the links between language and law cannot be reduced to mere criticism or even fault-finding. Legal language, that is, the language of mother tongue legal texts must be treated systematically and it must be criticised. However when doing this, one must bear in mind that the tools that legal language texts uses are the vocabulary of general language, legal terms, terms of the sphere of life which is the object of the legal text and the modern grammar of written language. Thus, the linguistic treatment of legal texts has its own specificity springing from the nature of legal texts. At the same time, one must know the rules and norms of language.
There are cases in the legal literature when expectations as to the role of language philosophy in connection with legal science have been too high. For example, the theory of law has been characterised as the language theory of law.16 In the case of interdisciplinary ways of cognition, it cannot be considered erroneous if an element of one or another approach is emphasised. Otherwise, the interdisciplinary approach itself would lose its meaning. The situation would be problematic though, if the theory of law were to be considered a mere language theory without any notice of the specificity of the researched sphere, which is determined above all, but not only, by law. Thus, to a certain extent, the theory of law is certainly the theory of legal language. Bearing in mind the titles of published academic works, it is not irrelevant to remind the reader that the stress has not been laid on “linguistics”, but instead on hermeneutics, logic, philosophy of language and socio-linguistics. No matter what the titles are, the problem is that hermeneutics and logic, as ways of cognition, have been excluded from the theory of linguistics.
The socio-linguistic treatment of legal language, as referred to in the legal literature, and which represents one possible interdisciplinary approach to research the relations between law and language is presented below:
|GENERAL LANGUAGE||NATIONAL LANGUAGE||INTEGRATED LANGUAGE|
| DIATHOPIC SUB-|
| DIASTRATIC SUB-|
| DIAPHASEAL SUB-|
|SPECIALISED LANGUAGE OF LEGAL SCIENCE|| LEGAL LANGUAGE|
LANGUAGE OF LEGISLATION
Socio-linguistics is an integrated science, developed from sociology and linguistics, which investigates the mutual relations between language and society. Any legislation is a rule, in its language raiment, for managing social relations and belongs within the sphere of interest of socio-linguistics. A national language in this system is an operating common language in its written form. Dialects (territorial dialects and subdivisions of dialects) are used as a common language in separate regions. Sociolects are used by different groups of society and professional slang is, for example, one of these. A diaphaseal sub-language is a functional style of a national language. Diathopic subsystems lack importance from the perspective of legal language. Diastratic language and diaphaseal language are important for the purposes of legal language. Specific legal language is also one of the main characteristics of and guarantees to law as a legal science. Specialist legal language is necessary for precise comprehension and the posing and resolution of legal problems. The language of legislation must be easily comprehensible for the majority of people, otherwise the legislative work of a parliament would not be communicative and the efficiency of laws may decrease dangerously. The language of legislation lacks a narrow language community with local or professional boundaries, which is characteristic of dialects and sociolects. Consequently, it is erroneous to think and to demand that laws be written in specialist legal language. The concept of legal language and the language of legislation in its broader sense, is wider in scope and different in content than the concept of specialised legal language. In the general system of language, legal terminology constitutes its diastratic sub-language, and the language of legislation, including the language of Acts, is its diaphaseal sub-language. Thus, three components are distinguished, which should guarantee that a legal text is universally comprehensible and treated separately:17
|LANGUAGE OF LEGISLATION||+||+|
|TERMINOLOGY OF LEGAL SCIENCE||TERMINOLOGIES OF THE REGULATED SPHERES||GENERAL LANGUAGE|
An interpreter of law can begin work only if he or she possesses the objective law or, in other words the law that has been in force. Objective in this case only means the ius scriptum or written law. Naturally, law is found not only in written sources, but in the given context, cases beyond the ius scriptum are not of interest. Otherwise, it would be incorrect to speak of the philosophy of language approach in the methodology of legal science. However, law and language are connected not only by written language. Jurists and jurisprudence recognise and are familiar with the fact that both oral and written legal language are not only closely interrelated but also have equal importance in legal hermeneutics.
The answer to the question of what relevance do language analysis and the philosophy of language have in law and jurisprudence, depends on whether and which aspects of legal argumentation that have shaped legal practice and practical legal science, can be achieved through linguistic and philosophical analysis and approach.18 In any case, it is clear that alongside the logica juridica and hermeneutica iuris, there is linguistic and philosophical research, which is caused by the fact that the objective law as a system of letter symbols, its language expression, must be understood first and foremost as a language in its normative sense and meaning. This must precede the individual cases of the realisation of law, the event of law specification and the application of law.
Linguistic and philosophical excursuses are admissible from the perspective of jurisprudence only if these help to resolve the so-called standard problems of practical law. Primarily, these are the identification of the norms of law in force, their interpretation and application to find, in accordance with law, resolutions to individual cases, and the creation of legal concepts and a system, with the assistance of which, valid law is presented as an integral system of concepts and norms.19 The fulfilment of the described tasks is guaranteed by analytical jurisprudence that is oriented toward a modern language analysis. The philosophy of language becomes apparent when the representatives of analytical jurisprudence make use of logical analysis, which is based on a knowledge of language and which assists, with the implementation of professional knowledge, in the explanation of concepts used in legal language. What is new about the analytical conception of law, is not the modern logic of norms, but the fact that contemporary analytical jurisprudence and the theory of practical legal argumentation which is related to it, are more and more burdening contemporary language philosophy itself.20 As is known, a pragmatic turn toward analytically oriented hermeneutic philosophy has taken place in the philosophy of language analysis.21
Contemporary jurisprudence discriminates between practical or dogmatic law (and the legal method appertaining to it) and the general theory of law based on both. Surely, the given structures assist to shape a common understanding of the law in force. At the same time, these were not clearly and unambiguously structured and, thus, the introduction of formal logic and modern language philosophy have essentially helped to establish a new and comprehensive theory of legal norms and structure. Linguistic and philosophical research have served as the basis for this.
In continental legal culture, decision-making pursuant to law is directly related to legislative texts. Legislative texts can be designated as the normative basis for finding a solution that corresponds to the law. The normative basis reaches lawyers not in its so-called ready-made form, but as a text, which contains the normative or binding content and the purpose of the legislation or provision. Perhaps, this is why lawyers and especially legal academics lack consensus as to what should be considered the core of juridical activities. Perhaps it is convenient to be bound by the text of a piece of legislation and leave everything else for subjective presumption, but such an understanding would inevitably mean confining oneself to the mercy of positive law. If it is presupposed that legal regulations really do reflect law unambiguously and that the intent of the legislator reaches one nonreflectively, then legal positivism would be of great assistance indeed. Yet it seems that understanding law is not confined to recognition of the positive law. Apparently, the first issue to be resolved by a lawyer in the process of law comprehension is to solve the problem of law validity, that is, is the law in force or not. An affirmative answer is but the beginning of the process of law comprehension. In fact, only the issue of whether the ius scriptum in one’s hands constitutes the positive law or the law in force has been resolved. Everyone who has had the need to subsume may assure that the one who must subsume does not become a “subsuming automaton” because of the knowledge of the validity of a provision or a piece of legislation. Legal positivism (pure law theory) “degrades” the one who applies law in this very role. The application of law actually means much more and is more complex than subsuming, which can be reduced to a formal-logical syllogism, allows one to assume. The fiction of simple subsuming suggests that to find actual circumstances from a law means simple revision of the legislator’s intent.22 Moreover, the actual circumstances that need to be decided upon are not always related to one single body of abstract facts. On the contrary, the task of a lawyer is, in the majority of cases, to relate the body of facts with the texts of different legislation, in order to determine the principal clause recognised in formal logic. All this excludes the possibility of automatic subsuming in legal practice.
However, this does not exclude the postulate of being bound by law. The author principally supports the situation, where in order to make a decision in accordance with law, one must create for oneself, on the basis of one or several norms of objective law, a norm for decision and use the traditional model of subsuming to make the decision.23
A model for decision must always be constructed on the basis of the language of the objective law. There is no doubt that the result of subsuming, that is, a legal decision, is directly dependent on how clearly and precisely the norms that serve as the basis for the model of decision and the norm of the decision itself have been formulated. The words of R. von Ihering should be remembered, who said that the legislator should think as a philosopher and speak as a peasant.24 The legislator speaks with the help of language. Therefore, in order to achieve comprehension and accuracy, it is important to have an in-depth knowledge of the language in which the rules for decision are formulated. However, this alone does not suffice. As already mentioned above, the language of legislation may sometimes significantly differ from everyday speech or from any other specialist language. A specialist language must be more exact than general language. Inaccuracies of “other languages” (not in the negative sense) must be eliminated and not copied. Every subject area can and should be designated by terms which most accurately reflect its essence. Through the ages, different legal cultures have developed relevant terminology to designate law in its broad meaning as exactly as possible. Thus, the issue of specialist language does not concern a separate language but rather language accuracy.
For example, in legal language one frequently comes across the Estonian expression rahvas. This does not constitute an independent designation, separate from general language, nor is it a new term with new content. In Estonian, the concept rahvas has the following meanings:
1) a group of people determined on the basis of ethnic characteristics ( Estonian, German, Russian, Chinese people);
2) the inhabitants of a region or locality (local people or people of one village);
3) the population of a country or state (the President talked to the people);
4) the people or a large crowd (the streets were crowded; was lost in the crowd); and
5) a certain group of people or generation of people (the chauffeurs are unanimous people, the young people are inquisitive).25 Thus, the meaning of rahvas is known in general language. In legal language, the term rahvas designates, first and foremost, the people of a state and it has a precise legal content or, in other words, the people of a state is an expression which has a precise legal meaning. Cicero determined that the people of a state are not just any large community of people. Rather, the people of a state are the large community of people, who are related through common interests and respect for the law in force.26 This means, that legally one cannot become a member of the people of a state just by birth, but on the basis of a special law, such as the Citizenship Act. A state has the legal freedom to determine the conditions which a natural person must meet so that the bearer of higher public power would contract a legal bond with him or her, that is, accept the person as belonging to the people of the state on the basis of the Citizenship Act. This part of the population with whom a state has contracted such a bond forms the citizenry of the state. Thus, the people of a state is a legal synonym of citizens. Such precision of legal language leaves no possibility to confuse the term “people” with nationality, inhabitants of a region or a certain group of people. Thus, jurisprudence has given the word rahvas in legal language a determinate meaning, which goes beyond its traditional meaning in general language and at the same time, has provided the word with the precision characteristic of a specialised language.
In continental European legal culture, the relatively independent legal science of jurisprudence or legal dogmatics deals with the “meaning” of objective law. K. Larenz is precise in stating that the theory of methods in jurisprudence is the language of normative clauses (rules of law). It is a system of beliefs about the law in force which it aims to describe.27 For this, jurisprudence does not employ quantitative methods. As jurisprudence endeavours to explain objective law or the law in force, it chooses a definite set of methods to achieve that goal. Interpretation in its broader sense serves as one of the principal methods. However, it would be more correct to say that on the one hand, interpretation as a science involves a systematic explanation of a set of methods and techniques, while on the other hand, interpretation involves an action carried out on the basis of consistency and rules in obtaining knowledge of the meaning and purpose of objective law.
It was A.F.J. Thibaut, a Pandectist, who said that hermeneutica iuris is the system of rules necessary for interpretation. In consideration of the legal method, interpretation constitutes its most relevant part. A lawyer wants to understand law to meet the demands of the actual social reality.28
The Estonian legal system contains laws which explicitly, that is, in the text of the law itself, make clear the need to interpret the law. For example, section 2 of the GPCCA is entitled “Interpretation of law”. Sections 3 and 4 of the Act concern interpretation. The former provides for the relationship between general and special provisions, and the latter deals with the problem of analogy between a specific law and the law in general. This example was referred to once again in order to underline the role of legal language texts both in legal practice and in practical legal science. As can be seen, it is sometimes the legislator who leads those who deal with legal texts to thoroughly work with the language of the texts.
What is “following a rule” in consideration of legal language? If someone expresses himself or herself through language, this means that by observing the language rules and using letter symbols a certain idea can be put into text, which should reach those who deal with the text. This process can be characterised as communicative behaviour. Whether such communicative behaviour is perfect or not is an issue to be resolved by the legal method approach. The problem is that the legislator is not always capable of “speaking as a peasant”. Legal language is a “playground” for both lawyers and linguists. However, a language always has a so-called common ground. In relation to grammar, this means that due to the use of auxiliary words; word formation and formative relations in terminology nests; the formation of word forms, the limits to their meaning and application; the ways of connecting words, their liaison and the compounding of word groups; the length of words or phrases and their order in the sentences of a text; and orthographic rules which are the basis for transforming loan words, the extent of balance between national and foreign terminology and several other aspects are determined outside of legal language and cannot, even in the ideal, belong to the educational background of lawyers in much detail.29
The essence of the rule of language usage can be reduced to Wittingstein’s (1889-1951) theory of semantics, which generally states that the meaning of a word is its usage in a language. For Wittingstein, language is not more and not less than a set of letter symbols used in a certain way. In order to understand properly, one must know the role of a word in language. From this, the “language game” which was so important for Wittingstein, is constructed. In order to comprehend legal language, one must participate in the “language game”. This is not the manipulation of language or of words. Participation in the “language game” constitutes a special way which enables one, within a language and with the assistance of the language, to understand the rational core of the designations of certain spheres of life. In connection with law, participation in the “language game” allows one to be cognitive of the normative meaning of such designations. It is not easy to overcome the language problems of actual legal texts. The reason is not the limited scope of language studies, but rather the fact that legal language is acquired through and with the support of the texts of the sources of law. Language is a habit with structure, sentencing, expressions and even unimportant words of texts for special purposes.30 Just as legal science as a whole constitutes a certain type of organised thinking, the language in law and for a lawyer constitutes the same type of organised thinking, the foundation of which is laid when reading the texts of the sources of law. When characterising the evolution of legal science, academics have stressed the fact that during the pre-classical period, when there was interest in the most important spheres of regulation, the principal route for the teaching of law was as follows: firstly, it was necessary to introduce the basic legal concepts to students, which essentially meant reading legal texts; and secondly, academic commentaries were also necessary to supplement the texts. These forms of instruction were called institutio and instructio, respectively.31
Interpretation methods can be divided into two categories: subjective and objective interpretation methods. The subjective interpretation method considers it important to determine the meaning and purpose which the historic legislator attempted to put into the legal text. For the objective interpretation method, the meaning of the law independent of the historic legislator, is essential. Both interpretation methods can be considered teleological because both theories set determinate goals.
Historical interpretation answers the question of how the historic legislator comprehended the meaning of the norm and how he or she wanted it to be applied. Obviously, it is only possible to make definite and accurate statements about decisions made in specific times and places if the historical background is known.
Objective-teleological interpretation is, like historical interpretation, the interpretation of intent. However, no importance is attached to the intent of the historical legislator. Instead, the objective-teleological interpretation method considers it important to understand the intent of the contemporary legislator.
In the case of both historical interpretation and objective-teleological interpretation, one must look for the ratio legis of the law. In other words, the answer must be found to the question of what is the purpose of the norm, or what is its meaning. Ratio legis est anima legis, or in other words, the reason of law is the soul of law.
Whether subjective or objective interpretation is used, either cannot be carried out without the use of linguistic interpretation as a specific means of interpretation.
Contemporary interpretation methods differentiate between the following canons of interpretation:
1) interpretation on the basis of the meaning of words (linguistic interpretation);
2) systematic interpretation (logical interpretation);
3) interpretation in accordance with historical origins (historical interpretation); and
4) interpretation according to the purpose of law (teleological interpretation).32
Under linguistic interpretation, “the letter of the law” is first borne in mind. It must be added that for linguists jurists’ use of the label “linguistic” (grammatiline in Estonian) is somewhat misleading bearing in mind the meaning of the word gramma (“letter” or “written”) borrowed from the Greek and not grammar in the linguistic context (syntax). For jurists, the designation “linguistic interpretation” in legal hermeneutics has become familiar. It must be admitted though, that one is also faced with the so-called problem of fragmented concepts, in the course of which notions acquire new meanings or lose old designations, and ambiguity becomes possible.
The fact that interpretation of any law, and the whole process of comprehension in legal hermeneutics in fact, commences with understanding the meaning of words, is indisputable. The issue of word-for-word meaning is an issue of how to reach the meaning of a rule of law and how this action is related to the professional work of lawyers, who are representatives of a particular profession. There is no problem of legal semantics which does not have this issue at the centre of consideration. Apparently, it does not suffice to admit the following: “Estonian (or Latvian, English, Norwegian etc.) is my mother tongue and this gives me reason to think that I, as a lawyer, will not encounter language problems in comprehending texts in such language in the course of fulfiling my professional tasks”. Otherwise, one would be faced with the question of whether the interpretation of law should at all be comprehended as an empirical process for determining the meanings of texts. Yet one can pose another question: as lawyers, in the course of their activities, use texts that contain norms, must they be guided by the textual criticism theory in their interpretations? From the historical perspective, the question would be: is Savigny’s characterisation of juridical activities as “philological method” justified? The latter question is due to the fact that the classical treatment of interpretation criteria originates from Savigny, whose works are referred to in every item of research concerning legal method.33
The author is of the opinion that linguistic interpretation constitutes an explanation of the semantics of legal terms and other designations used in language, in which the syntax or use of grammar rules has a fixed role. Such a “positive” answer to the question about the role of linguistic interpretation however, does not answer the question of which texts are to be interpreted linguistically (laws, court decisions, commentaries to laws, legal literature, etc.). It is easy to see that a great many of the above sources are interpretations themselves of original legal texts. Nevertheless, there is no danger of linguistic interpretation becoming too extensive, because it is bound, on the one hand, by specific legal texts and on the other hand, by a specific language, its semantics and syntax.
Linguistic interpretation in its classical form begins with resolution of the so-called question of fact. It is general knowledge that a lawyer can only start solving a legal issue once he or she has found the answer to the question of what actually happened. This is the resolution of the question of fact. Observing the rules for subsuming, the lawyer selects a certain part of the legal system and then must decide on its appropriateness to a given case. Even if there is no pertinent rule in the legal system, in that, there is a gap, the lawyer will overcome the gap and still come to the problem of linguistic interpretation. Linguistic interpretation must be used also when the legal system is controversial. After the lawyer, the implementer of law, has overcome the controversy, he or she must implement linguistic interpretation. For example, a principal controversy of values may occur in a legal system, if a new law gives a new solution to an issue already regulated by previous law. Objective-teleological interpretation can help to solve such a problem, in that, a general principle of law, lex posterior derogat legi priori (a later law repeals a prior one) will be applied. The ratio legis, that is, the meaning and purpose of a law, originates from this very principle. At the same time, it should be stressed that only the meaning and purpose of a law are derived from this principle. In order to comprehend the essence of law, one must understand the ratio legis. Probably, without excluding other possibilities, this is possible through reliance on the legal text.
Legislative texts are not always accurate. This means, that texts can be inaccurate or ambiguous. The same problem concerns general language, in that, it is good that a language is rich in means of expression, but the problem remains that in some way or another, a text can be inaccurate or ambiguous. Perhaps it would make sense to designate all inaccurate and ambiguous situations as ones in which legal language is not unambiguous. Such texts must necessarily be interpreted and, above all, interpreted linguistically.
What is inaccuracy of a text? Inaccuracy may exist in unclear or semantically vague designations. A designation in a language is unclear if its meaning is unspecified. For example, the legal literature has analysed the “Agreement on free trade and trade-related matters between the European Community, the European Atomic Energy Community and the European Coal and Steel Community, of the one part, and the Republic of Estonia, of the other part”. Among the texts in the author’s possession, the analysis below is among the most critical, because it states the following: “Steps approved and not approved by the agreement have already been taken. Have the priorities been found? Probably, it will soon become clear in what language a future Estonian will conduct his business. Until then, the road to the European chaos of languages is being paved by anonymously translated texts of agreements, in which it is a waste of time to look for the Estonian language. Estonian words which have been lined up are not yet Estonian and no longer English, but a quasi-language or perhaps Euro-language. If the minds and pens of the drafters and the translators of the agreement were guided by an idea to put it emphatically, we would not have to search for the meaning in the jumble of words and solve tens of pages of riddles, English legal and other phraseology which has not been translated into Estonian...”34 Unfortunately, the Estonian translation of the above-mentioned agreement is ridden with examples of ambiguity.
Semantic ambiguity is principally possible in two cases: firstly, if there are not enough characteristics in order to understand the expression accurately (“the provision is open”); and secondly, if the expression is “weak”.
In connection with the entering into force of the Law of Property Act, a discussion over the Estonian expression omand (ownership; possession; property) has arisen. The essence of the problem lies in the fact that the Law of Property Act uses the expression omand in the meaning of ownership (right of ownership). Traditionally, both in general language and legal language, omand has been used only as the object of ownership. Pursuant to the Law of Property Act, a thing may be in someone’s ownership and according to the traditional general language and legal language, it may be possessed by someone. The following has been stated in the legal literature: “The Law of Property Act uses the terminology of the 1940 draft Civil Code to a very large extent. At that time, almost twenty years were spent on drafting and elaborating the bill and linguists were included for assistance. In 1993, the work was completed almost within a year, and due to the great amount of substantial work, not enough attention was paid to the circumstances of why, in the thirties of the century, language reform was considered and omand was given the meaning of a right. One of the reasons obviously was that German law which served as a basis for the Estonian legal system, used the term Eigentum, which above all means right of possession or a person’s legal power over a thing.”35
Furthermore, it is clear that terms should be used consistently. Unfortunately, this principle has been violated in the Law of Property Act itself. The legal literature further states the following: “Neologisms have not been observed and that is why, in the Law of Property Act, the term omand may have both, the meaning of a right and of the object of ownership.”36
As well, expressions in legal language may simply be “weak”. An expression is “weak” if its sphere of use is vague. This is illustrated by the following example. In 1934, the “Glossary of Law” of F. Karlson and J.V. Veski was published, the compilation of which had started in 1920, when the Tartu Academic Law Society set up a legal terminology commission headed by F. Karlson. Linguist J.V. Veski began participating in the work of the commission. At the very beginning, during work with the vocabulary of the Penal Code, the need to revise and regulate the vocabulary of every sphere of law became apparent. As the volume of work increased, both practising lawyers and university scholars were asked to contribute. As for the vocabulary, the “Glossary of Law” has become outdated, but the passage of time has not damaged the basic vocabulary, which is still used by contemporary lawyers. The following has been stated in the legal literature concerning the work of Karlson and Veski: “J.V. Veski, who dealt with the practical arrangement of terminology of the mother tongue, has shaped the principles to be guided by the formation of terms. Just like the present-day, the choice then had to be whether to take the easy way out and adopt international terms, or to create our own system of terms based on the Estonian language. The former, simpler way meant and still means an invasion of foreign words, which damages the structure of the Estonian language; the latter, more complex but less dangerous way, required an in-depth knowledge of our language, good intuition, inventiveness and readiness to continuously overcome confrontations. Karlson and Veski opted for the latter, the more difficult way.”37 Many of the expressions published in the glossary had not been in use before, such as for example, ajend (incentive), elatis (subsistence), esildis (proposition), hagema (to sue), igamine (negative prescription), kaasama (to invite to participate in proceedings), kasum (profit), keskkond (environment), lõiv (charge, duty), pärand (inheritance), teene (merit), toimik (file), tõend (proof), tõkend (security measures to appear for trial), vaie (caveat), etc. Without a doubt, in their own time and place these expressions were considered “weak”. By now however, the semantic ambiguity of these expressions, in the sense of weakness, has been eliminated. It is with good reason that these terms now belong to the basic vocabulary of contemporary legal language.
In addition to weakness, semantic vagueness may be a matter of the openness of a text. One can speak of semantic openness if all characteristics for the use of an expression in casu are not known. For example, section 2 of the Universities Act38 explains the concept of ametialane ettevalmistus (preparation for a profession) as follows: teadmiste, oskuste ja kogemuste omandamine asjatundlikuks otsustamiseks ja otsuste täitmiseks juhtimises, valitsemises, haldamises ja sidustamises (acquisition of knowledge, skills and experience for competent decision-making, the fulfilment of decisions in management, government and administration, and coherence). A commentary concerning this section in the legal literature stated the following: “It can be presumed that ordinary people understand what management, government and administration are, because these have been discussed a lot in the press. But what is coherence? During a couple of days I posed this question to about 40 people who have higher education including professors (at least half of them), a rector of a university, a vice rector and several deans. None of these people I questioned had an unambiguous understanding of what coherence is.”39
As can be seen, even legal definitions within texts of law do not suffice to eliminate the openness of a text. It is true though, that incomplete rules of law do not bring about legal consequences on their own, but together with complete rules of law. If a legal definition itself, as a typical incomplete rule of law, is open, it may cause great difficulties to relate it to a complete rule of law. There is the danger that sometimes wrong norms may be put together and enforcement of the corresponding legal consequences will not constitute a realisation of law but a situation of arbitrariness instead.
As to inaccurate situations in texts of law, it can be said summa summarum that in such cases the possible meanings of an expression will not be known. Elimination of the inaccuracy requires that the expression be given a reasoned, rational and legally binding meaning.
Interpretation may be required also if a text of law is polysemantic (has several meanings). If an expression is polysemantic, the possible meanings are known. The need to interpret arises from the fact that one does not know which of the known meanings is appropriate in casu. Polysemy may be syntactic or semantic by nature.
Syntactic (lexical) polysemy reminds the author of a meeting with the graduates of the University of Tartu Faculty of Law who participated in refresher courses organised by the Estonian Law Center in February of 1997. Different possibilities of interpretation were discussed and the following example was given to the graduates by the author: “Raul lives in his house in Tartu, which is gallant and impressive.” The audience were then asked what, bearing the sentence in mind, was gallant and impressive. One of the answers was that everything was impressive, from Raul to Tartu. Even this answer seems possible enough. This polysemy is conditioned by syntax. Not “everything” was considered to be gallant and impressive by the utterer, although it is nice if everything is considered to be impressive, even if it actually is not.
Attention should be given to the fact that the Estonian word keel (language, tongue) itself has several meanings. The word keel may denote the fleshy muscular organ in the mouth serving the purposes of grabbing, mixing, tasting and swallowing food and which is, for humans, an important organ of speech; a thing keel-like in shape, for example a peninsula that stretches like a tongue into the sea; the most important means of communication, mediator of ideas and feelings (oral and written language); a wordless expression or information through something, whereby usually a word in the genitive precedes it (a sequence of numbers, a scale of notes); the body of symbols and rules for the transformation of information (programming language); an expression about a person in colloquial speech (a spy’s duty is to bring back his or her tongue); and the vibrating slip in reed and other musical instruments (piano, guitar, mandolin, etc.). The literature enumerates even more possibilities designated by the word keel.40 From the philological point of view, this is a typical case of homonymy (the same form of a word having several meanings).41
In general language, the multiplicity of possibilities, considering the transfer of meaning of expressions, is considered a value in itself. Specialised languages, on the other hand, strive for accuracy. The difficulties in regulating specialist languages arises from this strive for accuracy, and these difficulties pertain to three fields of lexicology, namely polysemy, synonymy and paronymy.
Polysemy constitutes the traditional understanding of a word with multiple meanings. In general language, in many cases, words are polysemic. The content of a technical term, on the other hand, must be determined as accurately as possible, to help avoid polysemy.
Section 2 of the Alcohol Excise Act, adopted on 8 November 1995,42 gives a number of legal definitions, some of which assist in avoiding polysemy. For example, the Act explains the concept of “import” (the same word in Estonian) as the introduction of goods from foreign countries for free circulation for the purposes of the Customs Act.43 In general language, the word import has at least one more meaning, that is, the material benefits produced abroad. Furthermore, it could be asked why the legislator did not use the Estonian term sissevedu, considering that due to the system of terms there are nice sets of terms in Estonian, like sissevedu (import), väljavedu (export) and läbivedu (transit), and their Estonian synonyms import, export and transit (from foreign terms), respectively. In this case, one can speak of synonymy, where several expressions denote one and the same notion. The simultaneous use of several synonyms should be avoided. Ideally, every notion should be designated by one single term. This is almost impossible to achieve, although there have been attempts to create a legal thesaurus or a dictionary of legal terms which have only one meaning. Therefore, the use of the following two types of synonym pairs is considered admissible in a specialist language:
1) grammatical variants of a term; and
2) parallel use of foreign and national language terms.
Principally, it is impossible to avoid the use of foreign terms. The main reason for this is the need to conform to European legislation. One of the peculiarities of the European Union (“EU”) as a structure for international co-operation is that it is multilingual. One of the basic principles of the EU from a linguistic perspective is that all the official languages of the Member States are equal. The principle of equality of languages is based on the fact that legislation of the European Communities (“EC”) is a direct part of the valid and applicable legislation of every Member State. Moreover, the EU is consciously trying to avoid integration which would lead to cultural unification. The need to translate EC legislation into the national languages either wholly or in part arises from recognition by the Member States of the obligation to harmonise legislation. Ideally, the founding treaties and the basic legislation of every field of secondary law would be translated first, as every subsequent translation would be based on the terminology adopted in these translations. As legislation of the EC deals with such diverse spheres as animal diseases to chocolate and tractors to product liability, specialists of different fields, such as agricultural scientists, chemists and engineers should be employed in the translation process alongside linguists and lawyers. It is essential to establish a sufficient information system to guide the translation process and to check the technical problems which will arise from the fact that it is not always easy to translate the EC legislation in force. In Finland for example, a special computer system was created for this translation process, which enabled similar recurrent expressions and phrases in different pieces of legislation to be found. This was of utmost importance from the point of view of rationalisation and translation quality, as about 60% of the texts of EC legislation is recurrent. It was possible, with the assistance of this computer program, to ensure that the same expressions which occurred in different pieces of EC legislation were always translated into Finnish exactly the same way each time.44 In Finland, the French language was chosen as the source language for translation, since the European Commission drafts EC legislation mainly in French, which is then translated into the other official languages of the Member States. Finland considered the texts that were not in French unreliable. Nowhere has adaptation with EC legislation been painless. This may bring about the adoption of foreign models of legislation, as well as alien legal language. The legislation of the EC may, for Estonia who aspires to become a member of the EU, be casuistic, have unfamiliar systems and be too complex in content due to the several amendments and precedents which have changed interpretation.
Paronyms are words which are similar in spelling but have different meaning. Due to their apparent similarity, such words are often confused. Colloquial language need not consider these nuances and therefore situations of polysemy may easily arise. Paronyms are for example, the Estonian words of tunnistama and tunnustama. The word tunnistama has the following meanings:
1) to witness or give evidence as to pertinent facts (actual circumstances);
2) to admit (mistakes); and
3) to approve (pronounce accepted).
Tunnustama means to recognise something as right or valid. Thus, one can recognise a state, a law or an authority for example.
These examples illustrate that a situation of paronymy can be overcome only with knowledge of the meanings of the paronyms. The Estonian Encyclopaedia45 states that due to their similarity of form, especially due to the similarity of stems, paronyms may be used in place of each other by mistake or for the purposes of word-play. In legal language, word-play should be excluded.