Constitutional and judicial argumentation and the transformation models of normative legal regulation

This article explores the interrelation between constitutional and judicial argumentation, and the key transformation models of normative legal regulation under the influence of constitutional and judicial decisions. Using the analysis and summarization of the extensive constitutional and judicial practice, the author describes the argumentative patterns emerging as a result of appeal of the constitutional justice bodies to particular variants of normative correction. Special attention is given to such corrective measures as disqualification of the legal norm, formulation of an exception to the general rule, modification of the hypothesis and disposition of the legal norm, correction of its sanction, clarification of the mechanism of action of the legal norm in time, space and scope of persons, filling of the legislative gaps, and securing additional guarantees. The novelty of this research consists in studying the constitutional and judicial argumentation from instrumental perspective, namely in the context of its of carrying out of its official function with regards to constitutional control, which allowed outlining the argumentative patterns that are prevalent within the constitutional discourse, and thus grasp the mechanism of generation of arguments. The acquired results demonstrate that conceptually, the reasoning of the constitutional justice bodies reflect the process of critical re-evaluation of the current legal regulation and determination of its constitutional flaws with simultaneous projection of the normative model that fits into the constitutional framework. The conclusion is formulated that the constitutional and judicial argumentation aims to indicate the most acceptable variant of regulation from the constitutional perspective, outline the eligible lawmaking divergence from the constitutional standards legal regulation, as well as explain which part of the normative legal regulation should be corrected based on the constitutional requirements.

EPISTEMIC MODALITY: A CORPUS-BASED ANALYSIS OF EPISTEMIC MARKERS IN EU AND POLISH JUDGMENTS

The aim of this paper is to establish the repertoire and distribution of verbal and adverbial exponents of epistemic modality in English- and Polish-language judgments passed by the Court of Justice of the EU (CJEU) and non-translated judgments passed by the Supreme Court of Poland (SN). The study applies a model for categorizing exponents of epistemicity with regard to their (i) level (high-, medium- and low-level of certainty, necessity or possibility expressed by the markers; primary dimension), (ii) perspective (own vs. reported perspective), (iii) opinion (based either on facts or beliefs) and (iv) time (the embedding of epistemic markers in sentences relating to the past, present or future) (contextual dimensions). It examines the degree of intra-generic convergence of translated EU judgments and non-translated national judgments in terms of the employment of epistemic markers, as well as the degree of authoritativeness of judicial argumentation, and determines whether the frequent use of epistemic markers constitutes a generic feature of judgments. The research material consists of a parallel corpus of English- and Polish-language versions of 200 EU judgments and a corpus of 200 non-translated domestic judgments. The results point to the high salience and differing patterns of use of epistemic markers in both EU and national judgments. The frequent use of high-level epistemic markers boosts the authoritativeness of judicial reasoning.

Marriage, Liberty and Constitution: a Corpusassisted Study of Value-Laden Words in Legal Argumentation

This paper investigates the interplay between judicial argumentation and evaluative or emotive language identified in two US Supreme Court landmark cases on the right of same-sex couples to marry. The analysis of both majority and dissenting opinions leads to two main observations. First, marriage and liberty are indeed emotive words and they represent two major sites of contention between the concurring and dissenting judges. Second, there are important differences within the argumentative strategies employed by the judges. While (re)defining the concepts remains the major argumentative goal for both types of opinion, the majority opinions tacitly integrate the redefined concept of marriage into their argumentation. It is the dissenting opinions that explicitly raise the issue of (re)definition in order to defend and retain the original sense of marriage.

Sensibly and appropriately the judge considered… A corpus-based study of sentence adverbs in judicial language

The paper presents a contrastive corpus-assisted discourse study of sentence adverbs in Italian, English and Spanish judicial discourse.The hypothesis guiding the study is that, although judges’ attitude is supposed to be impartial, as they represent the so-called “bouche de la loi”, their opinion is present in the texts and sentence adverbs are one of the pragmatic vehicles used to express their stance.The corpus used for the analysis is a trilingual subcorpus of COSPE (Pontrandolfo 2016) that has been POS-tagged (194,000 tokens for each language). The focus has then been placed exclusively on adverbs ending in -mente and -ly for being those that more than others contribute to express evaluative nuances in judicial discourse.Results demonstrate that quantitatively adverbs in -mente/-ly do not account for a significant percentage, which is in line with Biber et al.’s (1999) findings in other registers (conversation, academic prose). However, qualitatively and discursively, these adverbs play a pivotal role at a pragmatic level, since they contribute to judicial argumentation (cf., among others, Mazzi 2014).