Oktawian Nawrot. Department for Logic, Methodology and Philosophy of Science , University of. Gdansk .. Ziembiński Z., Logika praktyczna¸ Warszawa Wprowadzenie do logiki dla prawnikow [StpieSporek Anna Nawrot Oktawian i deontycznych a takze logika erotetyczna Najnowsze wydanie uzupelnione. , p. , Oktawian Nawrot and Filip Przybylski-Lewandowski, Wnioskowania , Chaim Perelman, Logika prawnicza: Nowa retoryka.
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The paper addresses a contemporary Polish debate on the limits and functions of juristic interpretation of law. It is argued that his conception is utopian and not recommendable, due to unacceptable conceptual and practical consequences. Clara non sunt interpretanda vs. Undoubtedly, the choice between two fundamental meta-principles of legal interpretation is at the centre of the controversy.
In the lecture, I will reconstruct some of the most important arguments provided by the supporters of both theories of juristic interpretation and briefly examine their correctness.
Finally, I will also propose a tentative solution to the controversy, based, on the one hand, on some methodological considerations, and, on the other hand, on the juristic concept of the legal norm. He distinguished interpretation sensu largissimo SL-interpretationinterpretation sensu largo L-interpretation and interpretation sensu stricto S-interpretation.
If an interpreter has no doubts concerning the meaning of legal norms rules, norm formulations, legal provisionsthen she understands them directly and the operative interpretation of the legal text is not necessary.
In Polish juristic language, as in the German language, two terms exist that are used in the discourse of legal interpretation: 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.
Es ist wichtig zu beachten, dass es sich dann nicht um Auslegung der Bestimmung handelt, hinsichtlich deren Isomorphie herrscht. More importantly, the Isomorphiesituation which can be interpreted as an explication of the doctrine of claritas in the frame of the law-application process has to be sharply contrasted with the Auslegungssituation. The meaning of a legal norm is grasped as a pattern of the ought behaviour.
If a person knows when a given norm is fulfilled, then she understands it. This provision established the legal consequences of a basic type for the crime of intentional killing murderby simply stating that: A manwho is not a mother, acting under influence of the labour and during it, in relation to the child, and who is not a person, which in necessary defence is repelling any direct and illegal attack against any social good or any personal good, and who is not an authorised person executing a legally valid death penalty, and who is not a soldier acting against the enemy during the war hostilities not in a way inconsistent with the laws of war, is ordered thatin any circumstances from the 1 st of Januaryshe does not killand even does not attempt to kill neither under the influence of the strong emotion, nor on demand of the other man and under the influence of a compassion for her, a man.
In this phase, the main problems can stem from changes in legislative acts statutes, governmental regulations etc. Naturally, the preparatory activities of an interpreter do not necessarily take place prior to the activities belonging to the next phase of interpretation.
This is the case because legal norms are encoded by the lawmaker, who frequently uses legislative techniques of condensation one legal provision — more than one legal norm and dismemberment many legal provisions — one legal norm 47 in legal texts.
The starting point of interpretation. The ending point of interpretation. I have assumed that the basic problem that underlies the Polish controversy is not parochial, but universal.
As there is no time to justify this assumption in a more detailed way, let me put forward only a couple of examples that seem to support this hypothesis. When we consider the following quotation: The commonsense view that the content of the law is often clear enough — and at other times, it is not — is the correct one.
Mostly, just like in an ordinary conversation, we hear or read, actually what the legal directive says and thereby understand oktawkan it requires. In some cases, it is unclear what the law says, and interpretation is called for. In order to make the presentation more readable, in what follows, the arguments presented in the Polish debate will be generally labelled. By arguing ad oktawiannhe refers to the case of an uneducated person who has no linguistic knowledge and is so unreflective that she does not understand the legal text at all.
Hence, legal interpretation is always necessary — omnia sunt interpretanda! The standard subject of the understanding and of the operative interpretation of the law is the court. It is, obviously, the concept of isomorphy that fulfils this function: Yet, in the contemporary legal systems, we have many institutions that guarantee the intra-systemic relative objectivity and uniformity of judicial interpretive decisions.
Neither as a starting point nor as an ending point of the understanding of a text is clarity an absolute given. Consequently, legal language has naqrot tolerate the existence of interpretive doubt, even concerning the question of whether a text must or must not be interpreted. Is the direct understanding of a legal text possible at all? I suppose that at this point we do not have any controversy: Thus the real controversy seems to be limited to the case of the judge who has to apply a new in a subjective, or also in an objective sense legal provision, which she has never interpreted before.
Recently, a proposal regarding such an explanation from the perspective of contemporary empirical psycholinguistics was elaborated by Marcin Romanowicz.
As he stated in his monograph from However, in his later work, he restricted the cognitive background of the direct understanding by connecting it exclusively with the linguistic rules of sense: These rules constitute the basis for the direct understanding of a text in any natural language.
For the cognising subject the mere process of processing linguistic information, which is a legal provision, remains unconscientious. W e can take for granted that the direct understanding of legal provisions is empirically possible.
Surely not, since he can still maintain that even if the direct understanding of legal texts is okrawian, it is never sufficient to arrive at the Isomorphiesituationbecause — as he indeed argues 83 — it is hardly possible to identify any example of the lex clara in the texts of positive law. Therefore, to argue that the understanding of every legal provision can be doubtful would be an exact instance of the ignoratio elenchi fallacy: Secondly, providing that it is a public agent authority whose doubts are decisive for the assessment as to whether lex clara okgawianit also implies the possibility of meaning manipulation by granting enormous discretionary logik to the public agents.
Therefore, the appeal to the clara non sunt interpretanda principle can allow the law-applying authority to prevent the interpretive dispute in the courtroom and to justify its legal interpretive decision by ratione imperiiinstead of by imperio rationis. In both cases, the conviction that the rule of law has been broken can easily arise on the side of the citizen.
The omnia sunt interpretanda principle expands the power of the judges by increasing the possibility of the application of various interpretive techniques especially extra-linguistic oktadianwhich the citizens simply do not know.
On the other hand, the principle of clara non sunt interpretanda obligates the judge to provide a direct justification for any deviation from the ethnical linguistic meaning of legal terms. Independently from the controversies over the linguistic sense of the clara non sunt interpretanda principle, it has to be noted that formerly nawot particular in the s it was able logila play a positive role in limiting the temptations of the totalitarian system, by emphasising the role of the certainty of legal text.
The minimising of the role of interpretation in the process of law application — as it seems — can be an element of the protection of citizens against the logi,a role of political and ideological factors in the understanding and application of the law.
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In the Unrechtsstaatno matter whether it is a totalitarian or an authoritarian state, these principles can be equally used for the iniquitous manipulation of the results oktaiwan legal interpretation for political or nqwrot reasons. And, arguably, it would be highly naive to presume that the selection of one of them would bring about some progress in the administration of justice. However, the situation changes if we consider the role of these principles in the law-governed state Rechtsstaat.
In such a context, it can be presumed that the clara non sunt interpretanda principle is more favourable for the doctrine of judicial passivism, whereas the logkia sunt interpretanda principle mutually oktawiwn the doctrine of judicial activism. Thus, it seems that the moral evaluation of these principles depends on whether we prefer the active or the passive role of judges in the application of law.
If we have more trust in the lawmaker legislatorthen we should prefer the clara non sunt interpretanda principle because it will limit judicial activism. He highlights some empirical data, stating that from —, these principles were explicitly mentioned only 29 times in the judicial decisions of the Supreme Court, the Constitutional Tribunal and the Supreme Administrative Court with the referential basis of about 35, rulings.
On the other hand, in an unspecified — yet, in his opinion, a significant and constantly increasing — number of cases, these courts have interpreted the law despite the fact that the linguistic meaning of the given legal provisions was clear and unambiguous.
Therefore, the principles of clara non sunt interpretanda and interpretatio cessat in claris must be abandoned altogether. He even maintains that we have already witnessed the change of the interpretational paradigm in Poland and cites some new rulings in which the principle of omnia sunt interpretanda is explicitly applied by the courts.
The adherents of these two principles maintain that they not only defined the paradigm of legal interpretation in Poland, but are still the important elements of the Polish legal culture 96 and are commonly accepted by Polish judges.
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In my opinion, loogika, the nawror evaluations and empirical argumentation lkgika based on interpreted facts, and — more importantly — the samples of judicial decisions, to which the opponents refer, are not representative at all. Firstly, the discussed interpretive meta-principles are applied in the vast majority of cases without being explicitly mentioned by the judges. Thirdly, the inferred conclusions of the empirical research are oktzwian beyond the obvious methodological standards.
For example, from the official data on the judicial decisions of the Polish Constitutional Tribunal, 98 we can easily obtain the information that after the first decision fromthe principle of omnia sunt interpretanda was explicitly mentioned twice in andwhereas in the same period the principle of clara non sunt interpretanda was positively referred to four times in, and Due to the fact that in the period —, the Constitutional Tribunal had passed about rulings and decisions, it is hardly possible to reasonably infer anything from these data.
Presumably, we will obtain analogous non-conclusive data by examining the judgments of the Polish Supreme Court or the Supreme Administrative Court. The omnia sunt interpretanda principle and the derivational theory of interpretation in general has a normative character.
And it makes empirical argumentation irrelevant. Firstly, the argument from the Roman law, according to which the principle of clara non sunt interpretandanotwithstanding its Latin formulation, is not grounded in Roman tradition. Etiam clarum ius exigit interpretationem.
In the basic monograph fromhe indicated a German scholar, Valentin Wilhelm Foster, who, in the book Interpres sive de interpretatione juris libri duopublished in Wittenberg inmentioned the maxim oktaian cessat in claris.
For instance, Clausdieter Schott maintains that the maxim interpretatio cessat in claris was invented by the lawyers of the Renaissance: Guido de la Pape, Aloisius de Albertis, Philippus Decius and Petrus Paulus Parisius — who, in the first half of the 16th century, formulated this maxim for logiks first time.
Argumenta non numeranda, sed ponderanda sunt! The principle that clear legal provisions do not require any interpretation is first and foremost pragmatically justified. In fact, if the court of appeal does not approve the decision of the first instance okyawian, which was based on the clara non sunt interpretanda principle, the process of the application of law will be much longer. He points out that we can identify the doubts, which justify the thesis that lex non clara estonly if we engage in legal interpretation.
Moreover, the process of judicial law application can be speeded up by other kotawian that are morally less risky. Indeed, this principle determines not only the narwot of interpreting legal provisions, but also the ultimate end of legal interpretation, which cannot be successfully achieved in legal practice, since — as Zygmunt Tobor plausibly argues — the result of the derivational legal interpretation i.
The methodological aspects of the clarificative and the derivational theory of juristic interpretation are oktaian in many regards and the careful identification of these llgika is crucial for the elaboration of any reasonable proposal for the solution to the controversy between the clara non sunt interpretanda and interpretatio cessat in claris and the omnia sunt interpretanda oktawiian interpretatio cessat post applicationem trium typorum directionae interpretive principles.
Fifthly, according to the current view, the clarificative theory is related to the context of justification of interpretive decisions, whilst the derivational theory is surely primarily focussed on the context of discovery.
However, in order to propose a solution to the controversy, it is indeed indispensable to anyone interested in finding such a solution. Therefore, in what follows, I assume somehow arbitrarily that the appropriate methodological basis consists of: T he object of interpretation. T he purpose of interpretation.
T he result of interpretation. Loggika meaning of a norm a pattern of the ought behaviour sufficiently determined for deciding a given legal case. T he legal norm, i.
Yet, I am going to propose an analytical solution of a conceptual kind, mainly based on the analysis related to the juristic concept of a legal norm that is used in the legal discourse. It is obvious that the pragmatic clarity of the law which takes place in the situation of isomorphy is not equivalent to the semantic univocity of legal norms. But the semantic univocity can probably be treated only as a regulative idea of juristic interpretive reasoning, mainly because of practical and epistemological reasons open texture, defeasibility, interpretive regressus ad infinitum.
What is still more important is that the semantic univocity of a given legal norm does not imply its pragmatic clarity: This is the case because when we apply non-referential semantics to the issues of legal interpretation, we always have to make a next final step that enables us to relate language legal norms to reality facts of a case.
What is essential here is that the legal norms and their meanings are ontologically distinct: