scholarly journals The meaning(s) in law and language

Linguistica ◽  
2013 ◽  
Vol 53 (2) ◽  
pp. 237-252
Author(s):  
Matej Accetto
Keyword(s):  
Rule Of Law ◽  
Equal Treatment ◽  
Legal Interpretation ◽  
Linguistic Terms ◽  
The Rule Of Law

This paper revisits the delicate relation between law and language, with language inevitable serving as the vehicle of legal deliberations and pronouncements, and in particular their seemingly irreconcilable qualities: while law is predicated on the concept of the rule of law (or Rechtsstaat) which in turn calls for a clear and predictable system of norms ensuring equal treatment, language is often indeterminate or ambiguous, the meaning of words unclear or uncertain. Is language even properly equipped to perform the role asked of it by law? This question is addressed by outlining and analysing the path traversed from the open-ended vagueness of linguistic terms to the uncompromising confines of their legal interpretation, both in the course of adopting legislation and in particular in the course of adopting judicial pronouncements on the meaning of linguistic terms employed.

scholarly journals THEORIES OF VAGUENESS AND THEORIES OF LAW

Legal Theory ◽  
2019 ◽  
Vol 25 (2) ◽  
pp. 132-152
Author(s):  
Alex Silk
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Conventional Meaning ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
Content Determination ◽  
The Law

ABSTRACTIt is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, legal content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law.

The Legal Ethical Backbone of Conscientious Refusal

2016 ◽  
Vol 26 (1) ◽  
pp. 59-68 ◽  
Author(s):  
CHRISTIAN MUNTHE ◽  
MORTEN EBBE JUUL NIELSEN
Keyword(s):  
Cultural Identity ◽  
Rule Of Law ◽  
Healthcare Professionals ◽  
Moral Rights ◽  
Equal Treatment ◽  
Legal Abortion ◽  
The Rule Of Law ◽  
Legal Right

Abstract:This article analyzes the idea of a legal right to conscientious refusal for healthcare professionals from a basic legal ethical standpoint, using refusal to perform tasks related to legal abortion (in cases of voluntary employment) as a case in point. The idea of a legal right to conscientious refusal is distinguished from ideas regarding moral rights or reasons related to conscientious refusal, and none of the latter are found to support the notion of a legal right. Reasons for allowing some sort of room for conscientious refusal for healthcare professionals based on the importance of cultural identity and the fostering of a critical atmosphere might provide some support, if no countervailing factors apply. One such factor is that a legal right to healthcare professionals’ conscientious refusal must comply with basic legal ethical tenets regarding the rule of law and equal treatment, and this requirement is found to create serious problems for those wishing to defend the idea under consideration. We conclude that the notion of a legal right to conscientious refusal for any profession is either fundamentally incompatible with elementary legal ethical requirements, or implausible because it undermines the functioning of a related professional sector (healthcare) or even of society as a whole.

scholarly journals Values and objectives of the EU in light of Opinion 1/17: ‘Trade for all’, above all

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Ivana Damjanovic ◽  
Nicolas de Sadeleer
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
The Eu

In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).

scholarly journals Chevron Deference, Presidential Influence, and the Rule of Law in the Administrative State

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Decision Maker ◽  
Rule Of Law ◽  
Legal Interpretation ◽  
Administrative State ◽  
Administrative Discretion ◽  
Administrative Agency ◽  
White House ◽  
The Rule Of Law ◽  
Thirtieth Anniversary ◽  
Presidential Influence

This paper, prepared for a symposium marking the thirtieth anniversary of the Supreme Court's decision in Chevron v NRDC, argues that, despite the doctrine's acquiescence in broad administrative discretion, so-called Chevron deference is reconcilable with a conventional account of what the rule of law entails in the modern administrative state. In all but the rarest of cases, however, rule of law values imply that deference should be accorded or not entirely on the basis of the legal interpretation proffered by the administrative agency that is Congress’s designated administrative decision maker, which is typically not the White House. White House involvement in persuading an agency to adopt a non-arbitrary interpretation that the agency embraces and can defend based on reasons rooted in law obviously should not count against that interpretation. But White House involvement should not be thought to earn deference for a proffered legal interpretation, whether originally preferred by an agency or not, that otherwise appears unjustified under “hard look” review. If the White House steers the agency away from an earlier preferred, but less sound interpretation of law, then the negotiated view, if non-arbitrary, may be given deference. But if the White House steers an agency away from an earlier preferred agency interpretation that would have been deference-worthy and at least as sound (in the eyes of the court) as the White House view now being offered as the agency’s own, the court should remand for agency reconsideration unless the White House-preferred interpretation can be shown to reflect exceptional problems of agency coordination.

scholarly journals doctrine of the rule of law in the light of the theory of legal interpretation

2021 ◽  
Vol 7 (Extra-B) ◽  
pp. 335-342
Author(s):  
Vladimir Gavrilovich Rotan ◽  
Vladimir Nikolaevich Koval ◽  
Sergey Zenin ◽  
Ivan Mikhaylovich Yapryntsev ◽  
Yuliya Valentinovna Chertkova
Keyword(s):  
Rule Of Law ◽  
Field Of View ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Holistic View ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Legal Enforcement ◽  
Almost All

The article deals with the problem of the connection of legal norms with the texts of the provisions of legislative acts, in which the legal norms are fixed. The purpose of this article is an attempt to develop such aspects of the doctrine of legal norms that would allow the concept of legal norms to cover almost all the legal content of the recognized theories, law, and practice of legal enforcement sources of law and create a holistic view of the legal norm. There are legal norms that are fixed textually (expressed verbally), and legal norms that are fixed logically. The latter type of norms usually does not fall into the field of view of scholars. The article substantiates the need to study the legal norms that are logically fixed in the provisions of legislative acts and the corresponding development of the doctrine of legal norms.

ON THE QUESTION OF THE INTERPRETATION OF THE RULES OF LAW

2020 ◽  
Author(s):  
Лаура Мусатовна Оздамирова
Keyword(s):  
Rule Of Law ◽  
Legal Interpretation ◽  
The Rule Of Law ◽  
Correct Understanding

В данной статье рассматриваются понятие, основные способы толкования норм права. Указываются элементы юридического толкования. Подчеркивается важность правильного понимания содержания юридических предписаний, запретов, дозволений. This article discusses the concept, the main ways of interpreting the rule of law. Elements of legal interpretation are indicated. The importance of correct understanding of the content of legal prescriptions, prohibitions, and permissions is emphasized.

scholarly journals Legitimization and Validity of Directives on Legal Interpretation on the Example of the Rule of Law Crisis in Poland

2020 ◽  
Author(s):  
Robert Piszko
Keyword(s):  
Rule Of Law ◽  
Traditional Approach ◽  
Main Role ◽  
Legal Interpretation ◽  
Legal Doctrine ◽  
The Rule Of Law ◽  
Research Material ◽  
The Law ◽  
Political Dispute

Abstract In case when the criteria for the validity of interpretative directives are not clearly defined and a political dispute arises, the dispute participant may refer to such interpretative directives, the use of which will determine the content of the law and determine the outcome of the political dispute. In this way a crisis of the legal order in Poland has occurred. Therefore, the aim of this article is to draw attention to the consequences of the undefined status of the directives of legal interpretation, the resulting need for legitimacy of the interpretation of the law, the role of legal views (legal doctrine) possible in this respect and the validation role of the interpretation custom in legal doctrine. The article consists of four parts. The first one describes the phenomena that have disrupted the traditional approach to the sources of law. The second part describes the traditional approach to the sources of the law. The third one proves that the traditional approach to the sources of law, in which the main role is fulfilled by normative acts, is incorrect, this part also indicates that the key role in this respect is played by spontaneous rules of law interpretation. The fourth part indicates the need to legitimize the interpretation of the law and the role of the interpretation custom in judicial doctrine. The research material includes parliamentary practice in Poland, practice of law interpretation and scientific studies on law interpretation. The research material was examined mainly using the method of linguistic analysis.

scholarly journals Podstawowe aspekty wykładni prawa w chińskim porządku prawnym

2021 ◽  
pp. 7-22
Author(s):  
Karol Gregorczuk
Keyword(s):  
Rule Of Law ◽  
Legal Culture ◽  
Fundamental Rights ◽  
Special Role ◽  
Legal Interpretation ◽  
Linguistic Context ◽  
Standing Committee ◽  
The Rule Of Law ◽  
People's Congress ◽  
Reasoning By Analogy

Basic aspects of legal interpretation in the Chinese legal order Chinese legal culture was shaped in a different way than Western legal culture, these differences have a significant impact on the rule of law, fundamental rights and democracy in contemporary China. Legal interpretation is one of the formal sources of law in China. The authority to interpret legislation is usually characterized as a legislative rather than a judicial function. The Standing Committee of the National People’s Congress (NPC), the State Council and the Supreme People’s Court have a special role in interpretive activities. Chinese legal interpretation includes semantic rules, the cultural and linguistic context of law, basic constitutional principles, the hierarchy of sources of law and reasoning by analogy.

scholarly journals Judicial Activism and Constitutional (Mis) Interpretation

2021 ◽  
Vol 40 (1) ◽  
pp. 119-148
Author(s):  
Johnny M Sakr ◽  
Augusto Zimmermann
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Judicial Activism ◽  
Legal Interpretation ◽  
Bill Of Rights ◽  
Original Intent ◽  
The Rule Of Law ◽  
Political Opinion ◽  
Australian Capital ◽  
The Us

In this article, the authors explore the concept of judicial activism and its application in the Australian domestic cases of Australian Capital Television Pty Ltd v Commonwealth and Love v Commonwealth, and in the US case of Obergefell v Hodges. The article highlights the devastating effects of judicial activism on legal interpretation, arguing that such activism compromises the doctrine of separation of powers and affects the realisation of the rule of law, resulting in a method ofinterpretation that incorporates personal biases and political opinion, thus ignoring the original intent of the framers of the Australian Constitution. Moreover, the article highlights that implementing a federal Bill of Rights might further exacerbate these ongoing problems concerning judicial activism in Australia.

scholarly journals Interpretation of law: axiological vector of development

2021 ◽  
pp. 132-135
Author(s):  
O. G. Varych
Keyword(s):  
Rule Of Law ◽  
The Other ◽  
Legal Interpretation ◽  
Legal Requirements ◽  
Social Transformations ◽  
The Rule Of Law ◽  
Legal Thinking ◽  
The Subject ◽  
Thinking Process ◽  
The One

The article examines the axiological vectors of the interpretation of law through the prism of clarifying the theoretical and legal interpretation of understanding the nature of the interpretation of law as, on the one hand - the thinking process of the subject who studies the rule of law, clarifies and explains its content, and on the other - explanation of the content of the rule of law. It is also established that the interpretation of law should be studied in terms of the static content of the rule of law and the dynamics of law itself, social transformations that can change the format of legal thinking, quality and effectiveness of interpretation of legal requirements. It has been found that the comprehension of the «spirit» of a legal prescription is valuable in the process of interpretation, and the interpretation should not change or supplement the existing legal prescription. Keywords: interpretation, interpretation of law, axiological vectors of development of interpretation of law

Sign in / Sign up

Export Citation Format

Share Document