Linguistic Objectivity in Norm Sentences: Alternatives in Literal Meaning

Abstract

Assuming that legal science, specifically with regard to interpretation, has to provide the tools to reduce the uncertainty of legal solutions arising from the use of natural languages by legal orders, it becomes a central matter to identify, in this limited domain, the spectrum of semantic variation (and its boundaries) that language brings to the definition of a norm expressed by a norm sentence. It is in this framework that the present paper, analyzing norm sentences as a specific kind of speech act, examines the relation of the legal order to natural language rules, the limits of linguistic uncertainty, and alternatives of meaning as distinct possibilities of norms covered by the text (that are, because of this, still within what literal meaning is). Considering interpretation just as the linguistic decoding process, the reverse of the process of creating norm sentences, the paper also argues that subjects not connected with the relation between norm sentences and norms (mainly, normative defeasibility) are analytically distinct and should be removed from the field of language.1 On other forms of expressing norms (not considered here), for instance, Guastini 1996, 364ff.; Ross 1958, 91ff. Regarding the underlying concept of norm (a general deontic content), after all not distinct from, MacCormick 2005, 24; or Guastini 1999, 92ff.

To Whom Does the Law Speak? Canvassing a Neglected Picture of Law’s Interpretive Field

“…8 Surely, most applications of speechact theory to legal discourse have been plagued by these fallacies: but there are also a few relevant exceptions (Kurzon 1986;Duarte 2011) that Matczak overlooks and on which the next section builds upon. That is why, between abandoning speechact theory in the study of law or amending it to such purpose, I opt for this latter possibility: for one can use the legal example to address speech-act theory general shortcomings and to begin to address satisfactorily the differences between conversational and non-conversational communicative instances.…”

“…This latter claim seems confirmed from yet another perspective, namely from considering the systemic relationship that establishes between law as an 'administered' language (Pattaro 2005) and the natural language Y in which legal utterances are encoded. In this sense, if we agree that there is a formal reception by the legal system X of the given natural language Y (Duarte 2011), then the [rules of the] interpretive practice of speakers of Y must be taken into account by any theory of interpretation of X. For that interpretive practice (of the community of speakers of the given natural language as a whole) becomes constitutive of the meaningfulness of the law as much as the law-specific interpretive practices established by institutional actors like courts (cf Velluzzi 2008, pp.…”

“…21-22). 18 Whereas Duarte (2011) shows how multi-contextuality reduces the pragmatic impact of context in determining the semantic value of the utterance. 19 Perhaps not so much in the criminal law context: cf Duff (2007, Chap. 2) (thanks to Findlay Stark for the pointer).…”

The Making of Constitutional Democracy: From Creation to Application of Law

“…183 In this regard, (some) American realists themselves were aware of the selection effect: Schauer, Thinking Like a Lawyer (n 9) 138. 184 ibid 13, fn 1; see also chs 2, 7 and 8, especially 22-23 and 184-85; on the selection effect, cf Green, 'Law and the Causes of Judicial Decisions' (n 3) 34. A good example of how the selection effect is usually neglected by formalism's opponents is in P Leith, 'Fundamental errors in legal logic programming' (1986) 29( 6) Computer Journal 545.…”

“…We need to return to Leiter's acknowledgement of easy cases, 183 which in turn rests on the 'plain meaning' theory as put forward by many positivists. Leiter has argued that the so-called 'selection effect' argument -according to which the kind of cases upon which the realists' claims are based is a 'biased sample of all legal events' 184 -is not a stand-alone argument, but rather parasitical on the argument from easy cases, and that in any case it is an efficacious rejoinder only against radical indeterminacy positions, while moderate positions (like his) are left unscathed by it. 185 Schauer's remarks undermine this contention.…”