Papers (English) by Marcin Matczak
Res Publica, 2023
The problem of the individuation of laws, identified by Bentham, is dismissed as irrelevant to le... more The problem of the individuation of laws, identified by Bentham, is dismissed as irrelevant to legal philosophy by some commentators. This paper presents individuation as crucial for understanding the cognitive processes underlying legal interpretation. It draws on the work of Maciej Zieliński and Teun van Dijk to show that legal interpretation is based on deriving legal rules qua semantic macrostructures from a legal text treated as a complex discourse. The Zieliński/van Dijk model also lends theoretical support to the interpretation-construction distinction by explaining, in linguistic terms, the processes that take place during construction.
In this paper, I defend legal positivism against recent assaults, specifically that of Greenberg ... more In this paper, I defend legal positivism against recent assaults, specifically that of Greenberg (How Facts Make Law’, Legal Theory, Vol. 10, 157-198, 2004 (‘HFML’). His key argument is that value-based reasoning is required to transform social facts into legal content, and that this reasoning is based on values external to the social practice that constitutes the basis of law.
In discussing possible objections to his theory, Greenberg identifies one according to which he relies on ‘too thin a conception of law practices’, and that ‘properly understood, law practices can themselves determine the content of the law’ (HFML 184). As he says, that objection ‘claims that the additional substantive factors are part of law practices themselves.’ (HMFL 186).
Ruth Millikan’s conventionalism allows for such an objection. Greenberg frequently presents a ‘practice’ as a series of social facts. Millikan’s concept of practice, as a lineage treats ‘practice’ as a series of social facts linked by the proper function they serve. In this sense, Greenberg’s concept of practice is indeed too thin.
In Millikan, the value factor that transforms social facts into legal content could be derived from within the practice. A series of independent behaviours is transformed into a purposeful practice because they serve the same proper function, and this allows the relevant and irrelevant behaviours within the practice to be distinguished. As such, the proper function is constitutive to the practice: it makes the practice what it is. It is also internal to the practice: the essence of the practice cannot be found outside it, and the proper function does not exist unless the practice does. Social facts are transformed into a law practice because a proper function is attributed to what has been said and done, and these words and behaviours are then reproduced because they serve this proper function.
The usefulness of Millikan’s theory is obvious once we assume (as Greenberg does) that the model of transforming social facts into legal content is a theory of interpretation. For Greenberg, the value-factor that enables the best interpretation model to be determined, (the ‘X’ factor) is morality (HFML, 193). I argue, however, that that normative aspect does not need to be moral. It may be derived from its proper function, which does not need to have anything to do with moral norms.
While Millikan’s theory modifies some of Greenberg’s assumptions, it does not invalidate his theory. Greenberg is correct in saying that judges often refer to a broader framework of values (e.g. democracy and fairness). It results from the fact that in hard cases the consequences of continuing the practice in a particular way have to be assessed in order to determine whether the continuation will still deliver the proper function. Another reason may be that proper functions within law are embedded. Therefore, several social practices frequently have to be aligned to determine whether their convergence is beneficial to society. It is at this level that morality can be a factor in determining which course of action most benefits the community.
Legal Theory , Volume 28 , Issue 2 , June 2022 , pp. 146 - 178, 2022
Conventionalism once seemed an attractive way to justify the viability of the positivistic social... more Conventionalism once seemed an attractive way to justify the viability of the positivistic social thesis. Subsequent criticism, however, has significantly lessened its attractiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis. Three arguments are proffered to support this contention. First, Millikan's conventionalism is not vulnerable to the major criticism leveled at conventionalism, viz its compliance-dependence (i.e., the main reason to follow a convention is that other social actors do so), as this is not its defining feature. Second, Millikanian conventionalism retains conventionalism's ability to explain how law emerges from social practices while avoiding the main disadvantage of Lewisian conventionalism, viz its inability to explain the normativity and contestability of law. Third, Millikan's conventionalism can more effectively repel Dworkin's and Greenberg's assaults on legal positivism than its Lewisian counterpart. To the memory of Maurice O'Brien * This work is a result of Research Project No. 2020/37/B/HS5/02589, which was funded by the National Science Centre (Narodowe Centrum Nauki). I am grateful to anonymous reviewers for their comments. 1. DAVID LEWIS, CONVENTION: A PHILOSOPHICAL STUDY (2002). 2. See H.L.A. HART, THE CONCEPT OF LAW (1994), at 267.
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The nature of legislative intent remains a subject of vigorous debate in legal theory. A conspicuous feature of the debate is that its participants perceive in many different ways. Some see it as an intention concerning the meaning of the words used in legal text, others as a will to enact the law, others still as a set of expectations regarding the law’s impact on reality. In this paper I identify the reason for such diverse perceptions: namely, that three intentions are involved in lawmaking, not one.
The three intentions correspond to three aspects of a speech act: locutionary, illocutionary and perlocutionary. The first, the locutionary intention, roughly resembles the semantic intention, i.e. the intention to utter words with specific sense and reference. The illocutionary intention is the intention to perform a specific act by uttering those words, e.g. giving an order or making a promise. The perlocutionary intention is the intention to change reality, i.e. influencing the behaviour of other people by uttering words. The dominant approach in legal theory holds that legislative intent is a broadly semantic (locutionary) one. A closer examination shows that it is fact an illocutionary one.
The paper starts with a summary of traditional approaches to legislative intent, showing the extreme diversity of the perspectives involved. In the second part, I propose a new theoretical framework, based on three types of intentions; first, I identify these three intentions; then I look at the different roles and actors in the legislative process and allocate intentions to them. In the final part of the paper, I draw the consequences for legal interpretation of this more theorised model of legislative intent. In the conclusion, I show that the proposed model explains the theoretical conflations, reconciles allegedly competing postions and opens new perspectives for the debate on legislative intent.
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2595519
Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one.
The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time.
In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”.
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2505611
Judges in different jurisdictions tend to quote foreign verdicts while deciding domestic cases. This practice flies in the face of the well-entrenched theory according to which law is a production of a domestic, sovereign lawmaker and foreign judicial decisions are irrelevant to its interpretation. In this paper I answer the question why the practice does not follow the theory and argue that it is not the former that should be changed but the latter. I show that the notion of a sovereign lawmaker is based on an author-centred theory of language, semantic internalism. This theory states that the sole source of meaning is the intention of a unique speaker. An alternative theory of language, semantic externalism, locates the meaning in the relationship between language and external reality, which is broadly similar in all languages and jurisdictions. Semantic externalism better explains why judicial borrowings are ubiquitous amongst different jurisdictions and thereby provides a better theoretical underpinning for this behaviour.
In this paper, I argue against the thesis presented by Jeremy Waldron (2009) that the Hartian rul... more In this paper, I argue against the thesis presented by Jeremy Waldron (2009) that the Hartian rule of recognition is reducible to the rule of change, and as such superfluous. To this purpose, I re-interpret Hart's concept of secondary rules using the theoretical framework of J. L. Austin's speech act theory, in particular by treating recognition, change and adjudication primarily in terms of acts, not rules. This re-interpretation elucidates why the phenomenon Hart called the " rule of recognition " is not a pre-defined rule but rather a paradigm-based judicial practice, whose function is to recognize authoritatively both the sources and the content of individual legal rules, and to transform those individual rules into a structured order – a legal system. So understood, the practice of recognition is not redundant but central to every legal system, exactly as Hart perceived it.
When a judge follows the letter of the law, her judgment may be considered blinkered by the man i... more When a judge follows the letter of the law, her judgment may be considered blinkered by the man in the street. Legal professionals, however, would classify the judgment as formalistic. From a theoretical perspective, formalistic decision-making limits the number of premises on which a judge may base a verdict. It asks the judge to focus on the literal meaning of the legal text and to disregard other interpretative premises, like the purpose or function of the law, legislative history or – in civil law jurisdictions – previous court decisions.
Formalism as an art of limiting judicial choices is perceived by many as fully consistent with the rule of law. It seems to both allow the curtailment of interpretive discretion and to ensure fidelity to the will of the lawmaker. This contrasts with an all-things-considered approach, where the premises for judicial decision-making seem unlimited, discretion encouraged, and the will of the lawmaker ignored.
In this paper I show that the apparent compatibility between formalism and the rule of law is based on a particular assumption as to the nature of legal language: that this language is criterial in the sense that in order to understand it, one needs to rely on dictionary definitions understood as sets of criteria. This assumption is misguided, and its flaws are revealed by theoretical advances in the contemporary philosophy of language. Specifically, semantic externalism demonstrates that the meaning of language cannot be discovered merely by reading dictionaries; rather, it requires the investigation of the linguistic practices of a particular communicative community, and an insight into the history and function of individual legal terms.
Because the nature of legal language is different from that assumed by the formalists, the compatibility between formalism and the rule of law collapses. With such a distorted perspective of the characteristics of legal language, formalism cannot ensure fidelity to it. This paper shows that judicial decisions based on applying definitions are very often surprising to the law’s addressees; this contradicts one of the main tenets of the rule of law, namely, the predictability of court verdicts. As a consequence, the rule of law requires a different, moderately non-formalistic approach to legal interpretation. Within this approach, judges can make decisions based on a broader scope of interpretive premises and by doing so ensure a better level of predictability.
Does Legal Interpretation Need Paul Grice?: Reflections on Lepore and Stone’s Imagination and Convention, Apr 20, 2017
By significantly diminishing the role intentions play in communication, in Imagination and Conven... more By significantly diminishing the role intentions play in communication, in Imagination and Convention (2015) Lepore and Stone attempt to overthrow the Gricean paradigm which prevails in the philosophy of language. The approach they propose is attractive to theorists of legal interpretations for many reasons. Primary among these is that the more general dispute in the philosophy of language between Griceans and non-Griceans mirrors the dispute between intentionalists and non-intentionalists in legal interpretation. The ideas proposed in Imagination and Convention naturally support the non-intentionalist camp, which make them unique in the contemporary philosophy of language.
In this paper I argue that despite an almost universal acceptance for the Gricean paradigm in legal interpretation, a strong, externalist approach to language, one in which interpretation is based on conventions, not intentions, is more suitable to the nature of legal language. The latter functions in societies as a written, public discourse to which many individuals contribute. The number of contributions makes the identification of individual intentions impossible, which makes legal language badly suited to a Gricean, intention-based analysis. Thus, Lepore and Stone’s discourse-based, non-Gricean alternative provides a better tool for the theorist of legal interpretation to analyse legal language.
In what follows, I first present an overview of the disputes in legal interpretation that may be affected by Imagination and Convention. In the second section, I analyze several of Lepore and Stone’s theses and apply them to issues in legal interpretation, paying particular attention to their concept of “direct intentionalism”. In the last section, I outline some proposals for finishing the anti-Gricean revolution, which involves Ruth Millikan’s idea of conventions as lineages.
The aim of this paper is to analyse the nature and structure of ad absurdum arguments (AADA) used... more The aim of this paper is to analyse the nature and structure of ad absurdum arguments (AADA) used in courts' statements of reasons. I particularly attempt to conclude which of the two possible grounds for lawyers applying AADA is the most consistent and thus more convincing. The first of these grounds, which in this paper I call traditional grounds, bases the application of AADA on the rational legislator assumption. According to these grounds, when interpreting a legal text a lawyer should reject any absurd interpretation of the text, as a rational legislator would not wish its words to be interpreted in such a way. According to the second grounds, which I call ontological grounds, AADA is an argument that is based on the assumption that a legal text is an instrument for designing a future reality in which a given society is to function, and that this reality, which we could call the "world", is rational . In line with this assumption, a legal text cannot be interpreted in such a way as to lead to:
a) states of affairs arising that cannot possibly exist in the known world, or
b) states of affairs that cannot coexist in the known world at the same time as other states of affairs that arise from a generally accepted interpretation of other parts of the legal text.
Therefore, in ontological grounds AADA appears as an argument from the ontological structure of the world, not as an argument from the rational preferences of the legislator. As I show further on in this paper, these grounds for AADA have a definite advantage over traditional grounds because, inter alia, they gives greater objectivism in application and enable lawyers' use of AADA to be verified in terms of correctness.
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M. Matczak, Why Legal Rules Are not Speech Acts and What Follows from That? in: Problems of Normativity, Rules and Rule-Following, M. Araszkiewicz, P. Banaś, T. Gizbert-Studnicki, K. Płeszka (eds.) Springer, Switzerland 2015, pp. 331-340.
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2263213
The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed.
My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses).
To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent.
In this paper I outline a comprehensive theory of legal interpretation based on an assumption tha... more In this paper I outline a comprehensive theory of legal interpretation based on an assumption that legal text, understood as the aggregate of texts of all legal acts in force at a particular time and place, describes one rational and coherent possible world. The picture of this possible world is decoded from the text by interpreters and serves as a holistic model to which the real world is adjusted when the law is applied.
From the above premise I will limit myself to drawing two conclusions for how legal interpretation should be carried out. First, I argue that the possible world described by the legal text has to be ‘accessible’ from the real world, i.e. it has to be feasible to transform the actual world into the described one. Were it otherwise, the possible world could not serve as a model for adjustment. The accessibility requirement imposes obligations on the interpreters to secure the rationality of the possible world decoded from the text, amongst other to secure that the description of this world is not contradictory and – as a consequence – the law of excluded middle is obeyed in the possible world described by the legal text.
Secondly, I argue for the inevitability of interpretative discretion arising from the requirement to decode a sufficiently ‘saturated’ picture of the possible world., i.e. possessing enough properties to resemble the actual world. As texts have a limited number of sentences and worlds have an unlimited number of properties, interpreters have to supplement the picture of a possible world to achieve its coherence. This involves the inclusion of some additional, non-predetermined features that integrate with the properties of the world predefined by the legal text. This process of saturation consists of filling in so-called ‘places of indeterminacy’ (Roman Ingarden) with content implicated by other features of the possible world. I also argue that the discretion resulting from the necessity of filling in the places of indeterminacy is justified by the requirement of fulfilling the intention of the lawmaker to make the possible world described by the legal text real.
The theory presented here is based on contemporary theories of discourse representation and so-called ‘text-world theory’ by J. Gavins. Phenomenalism and causal (historical) theories of reference provide its philosophical background.
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Central European Judges under the European Influence. The Transformative Power of the EU Revisited, edited by Michal Bobek, Hart Publishing, Aug 20, 2015
In 2010 we published a collaborative article in which we showed how the judiciary in three Centra... more In 2010 we published a collaborative article in which we showed how the judiciary in three Central and Eastern European (CEE) countries reacted to the institutional changes that were made in these countries at the end of the 1990s and the beginning of the 2000s. 1 In that article we set out the results of an analysis of over 1000 judgments passed by Polish, Czech and Hungarian administrative courts in the years between 1999 and 2004, particularly the types of arguments or values referred to by the judges in their judgments. Our analysis led to the conclusion that the respective judiciaries did not change their adjudicating method in the years in question despite significant changes in the legal environment, particularly the new Constitutions of the 1990s, preaccession commitments and accession itself. One of the features of judicial adjudications in the period in question is an unswerving reliance on formal law values. In our previous study we stated that due to the strong formalist tradition CEE judges may need some time to fully adjust their judicial decision making style to the new legal environment resulting from the EU accession. In this chapter we presented the results of an analysis of more than 900 administrative judicialdecisions from three CEE countries, dated from 2005 to 2013. Based on our quantitative analysis we can declare with some certainty that significant changes have occurred in the judicial style of administrative courts since 2005. Our data clearly show that judges of the CEE countries have used more non-formalistic, nontraditional arguments (pro-constitutional, pro-EU reasons and values external to law) in the examined period than they used before EU accession. These findingsallowed us to argue that EU accession has had both a direct and indirect influence on judicial behaviour in CEE countries.
Central European Judges Under the European Influence : The Transformative Power of the EU Revisited
on Law in Economy and Society (ed Max Rheinstein , trans E Shils) (Harvard University Press , 196... more on Law in Economy and Society (ed Max Rheinstein , trans E Shils) (Harvard University Press , 1969). 9 This distinction is a refl ection on our observation that authors do not always recognize that formalist judicial style does not necessarily equal to the rule based decision making. Judges many times only pretend that they decide on the basis of the text of the law. In these cases they only justify their decision by the text of the law. For a classical example of ignoring this distinction see HLA Hart , The Concept of Law (Oxford University Press , 1994) 124-54. 10 Schauer (n 3) 511.
Journal of Public Policy, 2010
Given far-reaching changes in the legal systems of East Central Europe since the mid-1990s, one m... more Given far-reaching changes in the legal systems of East Central Europe since the mid-1990s, one might expect administrative court judges to have modified the way in which they decide cases, in particular by embracing less formalistic adjudication strategies. Relying on an original dataset of over one thousand business-related cases from the Czech Republic, Hungary and Poland, this article shows that – despite some variation across countries and time – judges have largely failed to respond to the incentives contained in the new constitutional frameworks. They continue to adopt the most-locally-applicable-rule approach and are reluctant to apply general principles of law or to rely on Dworkinian ‘policies’ in deciding hard cases. The analysis links these weak institutional effects to the role of constitutional courts, case overload and educational legacies.
This report presents the results of a research project which examined how
Polish administrative c... more This report presents the results of a research project which examined how
Polish administrative courts exercise discretionary powers when deciding
cases related to business activity. When a business enterprise asks the
court to review actions taken by administration, judges decide whether an
administrative body has used its powers in accordance with the law. The law
in this case includes both the relevant statutory regulations but also more
general principles originating from other sources, such as the Constitution
or European Union law. It is generally accepted that in such cases courts
have discretion, i.e. are able to select legal standards on which to base their
judgments and to decide how to apply such standards to the case at hand.
This does not mean, of course, that administrative court judges can do
what they please. But, within some well-established boundaries, they can
select from among various rules and principles those legal standards which
apply to the case before them, interpret their meaning, and assess their
importance. We aim to understand this process.
Papers on Polish Constitutional Crisis (English) by Marcin Matczak
Hague Journal on the Rule of Law, 2020
Many people must be wondering how it is possible that Poland, not so long ago hailed for its exem... more Many people must be wondering how it is possible that Poland, not so long ago hailed for its exemplary transition from a communist dictatorship to a liberal democracy, could have so swiftly descended into authoritarianism via a crisis in the rule of law. The majority of commentators point to the size and ferocity of the attack on those mechanisms meant to safeguard the rule of law, whereas few focus on the weakness of their defence. This article attempts to redress that imbalance. The crucial facts of the Polish crisis are first presented, and the nature of both the attacks on the rule of law in Poland and the measures taken in its defence are then presented. In describing their defence, this article not only draws on Nicholas Barber’s concept of the self-defence of institutions, but attempts to improve upon it in the light of the Polish crisis. Further in the article, I argue that one of the reasons for the success of the assault on the rule of law is the formalistic legal mindset ...
In December I took part in a number of discussions, including at two interesting conferences – on... more In December I took part in a number of discussions, including at two interesting conferences – one in Nijmegen (the Netherlands) and the other in Berlin. Both of these conferences were on the subject of the return of authoritarianism in Central and Eastern Europe, and I believe the points raised at them are worth sharing.
Before I start my presentation, let me make a short statement. Professor Lech Morawski, who is al... more Before I start my presentation, let me make a short statement. Professor Lech Morawski, who is also participating in this symposium, has been invited here as judge of the Polish Constitutional Tribunal. I would not like that my presence here be recognised as an acknowledgement of th legality of his appointment to this position. Professor Morawski is a renowned legal philosopher and the author of books I have read and admire, but in the light of the case law of the Polish Constitutional Tribunal, Professor Morawski is not a legally appointed constitutional judge, as he was appointed to a position which was not actually vacant. Therefore, I would like to make it clear that my presence here is neither an acknowledgement of the legality of his appointment to this position, nor a recognition of his authority in that position.
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Papers (English) by Marcin Matczak
In discussing possible objections to his theory, Greenberg identifies one according to which he relies on ‘too thin a conception of law practices’, and that ‘properly understood, law practices can themselves determine the content of the law’ (HFML 184). As he says, that objection ‘claims that the additional substantive factors are part of law practices themselves.’ (HMFL 186).
Ruth Millikan’s conventionalism allows for such an objection. Greenberg frequently presents a ‘practice’ as a series of social facts. Millikan’s concept of practice, as a lineage treats ‘practice’ as a series of social facts linked by the proper function they serve. In this sense, Greenberg’s concept of practice is indeed too thin.
In Millikan, the value factor that transforms social facts into legal content could be derived from within the practice. A series of independent behaviours is transformed into a purposeful practice because they serve the same proper function, and this allows the relevant and irrelevant behaviours within the practice to be distinguished. As such, the proper function is constitutive to the practice: it makes the practice what it is. It is also internal to the practice: the essence of the practice cannot be found outside it, and the proper function does not exist unless the practice does. Social facts are transformed into a law practice because a proper function is attributed to what has been said and done, and these words and behaviours are then reproduced because they serve this proper function.
The usefulness of Millikan’s theory is obvious once we assume (as Greenberg does) that the model of transforming social facts into legal content is a theory of interpretation. For Greenberg, the value-factor that enables the best interpretation model to be determined, (the ‘X’ factor) is morality (HFML, 193). I argue, however, that that normative aspect does not need to be moral. It may be derived from its proper function, which does not need to have anything to do with moral norms.
While Millikan’s theory modifies some of Greenberg’s assumptions, it does not invalidate his theory. Greenberg is correct in saying that judges often refer to a broader framework of values (e.g. democracy and fairness). It results from the fact that in hard cases the consequences of continuing the practice in a particular way have to be assessed in order to determine whether the continuation will still deliver the proper function. Another reason may be that proper functions within law are embedded. Therefore, several social practices frequently have to be aligned to determine whether their convergence is beneficial to society. It is at this level that morality can be a factor in determining which course of action most benefits the community.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2557757
The nature of legislative intent remains a subject of vigorous debate in legal theory. A conspicuous feature of the debate is that its participants perceive in many different ways. Some see it as an intention concerning the meaning of the words used in legal text, others as a will to enact the law, others still as a set of expectations regarding the law’s impact on reality. In this paper I identify the reason for such diverse perceptions: namely, that three intentions are involved in lawmaking, not one.
The three intentions correspond to three aspects of a speech act: locutionary, illocutionary and perlocutionary. The first, the locutionary intention, roughly resembles the semantic intention, i.e. the intention to utter words with specific sense and reference. The illocutionary intention is the intention to perform a specific act by uttering those words, e.g. giving an order or making a promise. The perlocutionary intention is the intention to change reality, i.e. influencing the behaviour of other people by uttering words. The dominant approach in legal theory holds that legislative intent is a broadly semantic (locutionary) one. A closer examination shows that it is fact an illocutionary one.
The paper starts with a summary of traditional approaches to legislative intent, showing the extreme diversity of the perspectives involved. In the second part, I propose a new theoretical framework, based on three types of intentions; first, I identify these three intentions; then I look at the different roles and actors in the legislative process and allocate intentions to them. In the final part of the paper, I draw the consequences for legal interpretation of this more theorised model of legislative intent. In the conclusion, I show that the proposed model explains the theoretical conflations, reconciles allegedly competing postions and opens new perspectives for the debate on legislative intent.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2595519
Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one.
The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time.
In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2505611
Judges in different jurisdictions tend to quote foreign verdicts while deciding domestic cases. This practice flies in the face of the well-entrenched theory according to which law is a production of a domestic, sovereign lawmaker and foreign judicial decisions are irrelevant to its interpretation. In this paper I answer the question why the practice does not follow the theory and argue that it is not the former that should be changed but the latter. I show that the notion of a sovereign lawmaker is based on an author-centred theory of language, semantic internalism. This theory states that the sole source of meaning is the intention of a unique speaker. An alternative theory of language, semantic externalism, locates the meaning in the relationship between language and external reality, which is broadly similar in all languages and jurisdictions. Semantic externalism better explains why judicial borrowings are ubiquitous amongst different jurisdictions and thereby provides a better theoretical underpinning for this behaviour.
Formalism as an art of limiting judicial choices is perceived by many as fully consistent with the rule of law. It seems to both allow the curtailment of interpretive discretion and to ensure fidelity to the will of the lawmaker. This contrasts with an all-things-considered approach, where the premises for judicial decision-making seem unlimited, discretion encouraged, and the will of the lawmaker ignored.
In this paper I show that the apparent compatibility between formalism and the rule of law is based on a particular assumption as to the nature of legal language: that this language is criterial in the sense that in order to understand it, one needs to rely on dictionary definitions understood as sets of criteria. This assumption is misguided, and its flaws are revealed by theoretical advances in the contemporary philosophy of language. Specifically, semantic externalism demonstrates that the meaning of language cannot be discovered merely by reading dictionaries; rather, it requires the investigation of the linguistic practices of a particular communicative community, and an insight into the history and function of individual legal terms.
Because the nature of legal language is different from that assumed by the formalists, the compatibility between formalism and the rule of law collapses. With such a distorted perspective of the characteristics of legal language, formalism cannot ensure fidelity to it. This paper shows that judicial decisions based on applying definitions are very often surprising to the law’s addressees; this contradicts one of the main tenets of the rule of law, namely, the predictability of court verdicts. As a consequence, the rule of law requires a different, moderately non-formalistic approach to legal interpretation. Within this approach, judges can make decisions based on a broader scope of interpretive premises and by doing so ensure a better level of predictability.
In this paper I argue that despite an almost universal acceptance for the Gricean paradigm in legal interpretation, a strong, externalist approach to language, one in which interpretation is based on conventions, not intentions, is more suitable to the nature of legal language. The latter functions in societies as a written, public discourse to which many individuals contribute. The number of contributions makes the identification of individual intentions impossible, which makes legal language badly suited to a Gricean, intention-based analysis. Thus, Lepore and Stone’s discourse-based, non-Gricean alternative provides a better tool for the theorist of legal interpretation to analyse legal language.
In what follows, I first present an overview of the disputes in legal interpretation that may be affected by Imagination and Convention. In the second section, I analyze several of Lepore and Stone’s theses and apply them to issues in legal interpretation, paying particular attention to their concept of “direct intentionalism”. In the last section, I outline some proposals for finishing the anti-Gricean revolution, which involves Ruth Millikan’s idea of conventions as lineages.
a) states of affairs arising that cannot possibly exist in the known world, or
b) states of affairs that cannot coexist in the known world at the same time as other states of affairs that arise from a generally accepted interpretation of other parts of the legal text.
Therefore, in ontological grounds AADA appears as an argument from the ontological structure of the world, not as an argument from the rational preferences of the legislator. As I show further on in this paper, these grounds for AADA have a definite advantage over traditional grounds because, inter alia, they gives greater objectivism in application and enable lawyers' use of AADA to be verified in terms of correctness.
IF YOU WANT TO DOWNLOAD THE PAPER, PLEASE USE THE LINK TO THE PAPERS.SSRN.COM PAGE (PROVIDED ABOVE)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2263213
The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed.
My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses).
To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent.
From the above premise I will limit myself to drawing two conclusions for how legal interpretation should be carried out. First, I argue that the possible world described by the legal text has to be ‘accessible’ from the real world, i.e. it has to be feasible to transform the actual world into the described one. Were it otherwise, the possible world could not serve as a model for adjustment. The accessibility requirement imposes obligations on the interpreters to secure the rationality of the possible world decoded from the text, amongst other to secure that the description of this world is not contradictory and – as a consequence – the law of excluded middle is obeyed in the possible world described by the legal text.
Secondly, I argue for the inevitability of interpretative discretion arising from the requirement to decode a sufficiently ‘saturated’ picture of the possible world., i.e. possessing enough properties to resemble the actual world. As texts have a limited number of sentences and worlds have an unlimited number of properties, interpreters have to supplement the picture of a possible world to achieve its coherence. This involves the inclusion of some additional, non-predetermined features that integrate with the properties of the world predefined by the legal text. This process of saturation consists of filling in so-called ‘places of indeterminacy’ (Roman Ingarden) with content implicated by other features of the possible world. I also argue that the discretion resulting from the necessity of filling in the places of indeterminacy is justified by the requirement of fulfilling the intention of the lawmaker to make the possible world described by the legal text real.
The theory presented here is based on contemporary theories of discourse representation and so-called ‘text-world theory’ by J. Gavins. Phenomenalism and causal (historical) theories of reference provide its philosophical background.
IF YOU WANT TO DOWNLOAD THE PAPER, PLEASE USE THE LINK TO THE PAPERS.SSRN.COM PAGE (PROVIDED ABOVE).
Polish administrative courts exercise discretionary powers when deciding
cases related to business activity. When a business enterprise asks the
court to review actions taken by administration, judges decide whether an
administrative body has used its powers in accordance with the law. The law
in this case includes both the relevant statutory regulations but also more
general principles originating from other sources, such as the Constitution
or European Union law. It is generally accepted that in such cases courts
have discretion, i.e. are able to select legal standards on which to base their
judgments and to decide how to apply such standards to the case at hand.
This does not mean, of course, that administrative court judges can do
what they please. But, within some well-established boundaries, they can
select from among various rules and principles those legal standards which
apply to the case before them, interpret their meaning, and assess their
importance. We aim to understand this process.
Papers on Polish Constitutional Crisis (English) by Marcin Matczak
In discussing possible objections to his theory, Greenberg identifies one according to which he relies on ‘too thin a conception of law practices’, and that ‘properly understood, law practices can themselves determine the content of the law’ (HFML 184). As he says, that objection ‘claims that the additional substantive factors are part of law practices themselves.’ (HMFL 186).
Ruth Millikan’s conventionalism allows for such an objection. Greenberg frequently presents a ‘practice’ as a series of social facts. Millikan’s concept of practice, as a lineage treats ‘practice’ as a series of social facts linked by the proper function they serve. In this sense, Greenberg’s concept of practice is indeed too thin.
In Millikan, the value factor that transforms social facts into legal content could be derived from within the practice. A series of independent behaviours is transformed into a purposeful practice because they serve the same proper function, and this allows the relevant and irrelevant behaviours within the practice to be distinguished. As such, the proper function is constitutive to the practice: it makes the practice what it is. It is also internal to the practice: the essence of the practice cannot be found outside it, and the proper function does not exist unless the practice does. Social facts are transformed into a law practice because a proper function is attributed to what has been said and done, and these words and behaviours are then reproduced because they serve this proper function.
The usefulness of Millikan’s theory is obvious once we assume (as Greenberg does) that the model of transforming social facts into legal content is a theory of interpretation. For Greenberg, the value-factor that enables the best interpretation model to be determined, (the ‘X’ factor) is morality (HFML, 193). I argue, however, that that normative aspect does not need to be moral. It may be derived from its proper function, which does not need to have anything to do with moral norms.
While Millikan’s theory modifies some of Greenberg’s assumptions, it does not invalidate his theory. Greenberg is correct in saying that judges often refer to a broader framework of values (e.g. democracy and fairness). It results from the fact that in hard cases the consequences of continuing the practice in a particular way have to be assessed in order to determine whether the continuation will still deliver the proper function. Another reason may be that proper functions within law are embedded. Therefore, several social practices frequently have to be aligned to determine whether their convergence is beneficial to society. It is at this level that morality can be a factor in determining which course of action most benefits the community.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2557757
The nature of legislative intent remains a subject of vigorous debate in legal theory. A conspicuous feature of the debate is that its participants perceive in many different ways. Some see it as an intention concerning the meaning of the words used in legal text, others as a will to enact the law, others still as a set of expectations regarding the law’s impact on reality. In this paper I identify the reason for such diverse perceptions: namely, that three intentions are involved in lawmaking, not one.
The three intentions correspond to three aspects of a speech act: locutionary, illocutionary and perlocutionary. The first, the locutionary intention, roughly resembles the semantic intention, i.e. the intention to utter words with specific sense and reference. The illocutionary intention is the intention to perform a specific act by uttering those words, e.g. giving an order or making a promise. The perlocutionary intention is the intention to change reality, i.e. influencing the behaviour of other people by uttering words. The dominant approach in legal theory holds that legislative intent is a broadly semantic (locutionary) one. A closer examination shows that it is fact an illocutionary one.
The paper starts with a summary of traditional approaches to legislative intent, showing the extreme diversity of the perspectives involved. In the second part, I propose a new theoretical framework, based on three types of intentions; first, I identify these three intentions; then I look at the different roles and actors in the legislative process and allocate intentions to them. In the final part of the paper, I draw the consequences for legal interpretation of this more theorised model of legislative intent. In the conclusion, I show that the proposed model explains the theoretical conflations, reconciles allegedly competing postions and opens new perspectives for the debate on legislative intent.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2595519
Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one.
The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time.
In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2505611
Judges in different jurisdictions tend to quote foreign verdicts while deciding domestic cases. This practice flies in the face of the well-entrenched theory according to which law is a production of a domestic, sovereign lawmaker and foreign judicial decisions are irrelevant to its interpretation. In this paper I answer the question why the practice does not follow the theory and argue that it is not the former that should be changed but the latter. I show that the notion of a sovereign lawmaker is based on an author-centred theory of language, semantic internalism. This theory states that the sole source of meaning is the intention of a unique speaker. An alternative theory of language, semantic externalism, locates the meaning in the relationship between language and external reality, which is broadly similar in all languages and jurisdictions. Semantic externalism better explains why judicial borrowings are ubiquitous amongst different jurisdictions and thereby provides a better theoretical underpinning for this behaviour.
Formalism as an art of limiting judicial choices is perceived by many as fully consistent with the rule of law. It seems to both allow the curtailment of interpretive discretion and to ensure fidelity to the will of the lawmaker. This contrasts with an all-things-considered approach, where the premises for judicial decision-making seem unlimited, discretion encouraged, and the will of the lawmaker ignored.
In this paper I show that the apparent compatibility between formalism and the rule of law is based on a particular assumption as to the nature of legal language: that this language is criterial in the sense that in order to understand it, one needs to rely on dictionary definitions understood as sets of criteria. This assumption is misguided, and its flaws are revealed by theoretical advances in the contemporary philosophy of language. Specifically, semantic externalism demonstrates that the meaning of language cannot be discovered merely by reading dictionaries; rather, it requires the investigation of the linguistic practices of a particular communicative community, and an insight into the history and function of individual legal terms.
Because the nature of legal language is different from that assumed by the formalists, the compatibility between formalism and the rule of law collapses. With such a distorted perspective of the characteristics of legal language, formalism cannot ensure fidelity to it. This paper shows that judicial decisions based on applying definitions are very often surprising to the law’s addressees; this contradicts one of the main tenets of the rule of law, namely, the predictability of court verdicts. As a consequence, the rule of law requires a different, moderately non-formalistic approach to legal interpretation. Within this approach, judges can make decisions based on a broader scope of interpretive premises and by doing so ensure a better level of predictability.
In this paper I argue that despite an almost universal acceptance for the Gricean paradigm in legal interpretation, a strong, externalist approach to language, one in which interpretation is based on conventions, not intentions, is more suitable to the nature of legal language. The latter functions in societies as a written, public discourse to which many individuals contribute. The number of contributions makes the identification of individual intentions impossible, which makes legal language badly suited to a Gricean, intention-based analysis. Thus, Lepore and Stone’s discourse-based, non-Gricean alternative provides a better tool for the theorist of legal interpretation to analyse legal language.
In what follows, I first present an overview of the disputes in legal interpretation that may be affected by Imagination and Convention. In the second section, I analyze several of Lepore and Stone’s theses and apply them to issues in legal interpretation, paying particular attention to their concept of “direct intentionalism”. In the last section, I outline some proposals for finishing the anti-Gricean revolution, which involves Ruth Millikan’s idea of conventions as lineages.
a) states of affairs arising that cannot possibly exist in the known world, or
b) states of affairs that cannot coexist in the known world at the same time as other states of affairs that arise from a generally accepted interpretation of other parts of the legal text.
Therefore, in ontological grounds AADA appears as an argument from the ontological structure of the world, not as an argument from the rational preferences of the legislator. As I show further on in this paper, these grounds for AADA have a definite advantage over traditional grounds because, inter alia, they gives greater objectivism in application and enable lawyers' use of AADA to be verified in terms of correctness.
IF YOU WANT TO DOWNLOAD THE PAPER, PLEASE USE THE LINK TO THE PAPERS.SSRN.COM PAGE (PROVIDED ABOVE)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2263213
The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed.
My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses).
To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent.
From the above premise I will limit myself to drawing two conclusions for how legal interpretation should be carried out. First, I argue that the possible world described by the legal text has to be ‘accessible’ from the real world, i.e. it has to be feasible to transform the actual world into the described one. Were it otherwise, the possible world could not serve as a model for adjustment. The accessibility requirement imposes obligations on the interpreters to secure the rationality of the possible world decoded from the text, amongst other to secure that the description of this world is not contradictory and – as a consequence – the law of excluded middle is obeyed in the possible world described by the legal text.
Secondly, I argue for the inevitability of interpretative discretion arising from the requirement to decode a sufficiently ‘saturated’ picture of the possible world., i.e. possessing enough properties to resemble the actual world. As texts have a limited number of sentences and worlds have an unlimited number of properties, interpreters have to supplement the picture of a possible world to achieve its coherence. This involves the inclusion of some additional, non-predetermined features that integrate with the properties of the world predefined by the legal text. This process of saturation consists of filling in so-called ‘places of indeterminacy’ (Roman Ingarden) with content implicated by other features of the possible world. I also argue that the discretion resulting from the necessity of filling in the places of indeterminacy is justified by the requirement of fulfilling the intention of the lawmaker to make the possible world described by the legal text real.
The theory presented here is based on contemporary theories of discourse representation and so-called ‘text-world theory’ by J. Gavins. Phenomenalism and causal (historical) theories of reference provide its philosophical background.
IF YOU WANT TO DOWNLOAD THE PAPER, PLEASE USE THE LINK TO THE PAPERS.SSRN.COM PAGE (PROVIDED ABOVE).
Polish administrative courts exercise discretionary powers when deciding
cases related to business activity. When a business enterprise asks the
court to review actions taken by administration, judges decide whether an
administrative body has used its powers in accordance with the law. The law
in this case includes both the relevant statutory regulations but also more
general principles originating from other sources, such as the Constitution
or European Union law. It is generally accepted that in such cases courts
have discretion, i.e. are able to select legal standards on which to base their
judgments and to decide how to apply such standards to the case at hand.
This does not mean, of course, that administrative court judges can do
what they please. But, within some well-established boundaries, they can
select from among various rules and principles those legal standards which
apply to the case before them, interpret their meaning, and assess their
importance. We aim to understand this process.
Some lawyers advising the Polish opposition claim that the appointments of several constitutional judges are so legally defective that they can be declared nullities. Some academics, e.g. Wojciech Sadurski, believe that the Constitutional Court has been “contaminated” and therefore should be “extinguished”, as it is no longer able to perform its constitutionally mandated functions. Still others, e.g. Piotr Kardas and Maciej Gutowski, criticize me and others like me, who oppose these measures and the rationales behind them, claiming that we are promoting injustice and preserving the institutional damage wreaked by PiS.
What the opposition proposes is tantamount to curing the plague with cholera. And setting precedents like this will eventually rebound. The role of a lawyer is not to encourage illegal activity, but to pour a bucket of cold water on the heated heads of people who, instead of fixing the state, want to destroy it. I, at least, see my role that way.
Praca jest poświęcona analizie zjawiska formalizmu, które jest strategią stosowania prawa, podlegająca na podkreśleniu wagi formalnych cech prawa, nawet jeśli strategia taka prowadzi do rezultatów trudnych do zaakceptowania z punktu widzenia zasad prawa albo ogólnych wymogów słuszności. Przeciwnie do dotychczasowych stanowisk reprezentowanych w literaturze, w pracy przedstawione są argumenty, że formalistyczne podejście do stosowania prawa nie ma uzasadnienia, ani w koncepcji pozytywizmu prawniczego, ani w koncepcji rządów prawa. Z drugiej strony nieformalistyczne podejście do stosowania prawa, które polega głównie na współstosowaniu reguł i zasad oraz na uwzględnianiu celu i funkcji prawa,
pozwala na realizację wartości tradycyjnie przypisywanych koncepcji pozytywizmu prawniczego. Ta nieformalistyczna strategia stosowania prawa, nazywana w pracy holizmem interpretacyjnym, została w pracy uzasadniona poprzez szerokie wykorzystanie współczesnej filozofii języka, w szczególności tzw. semantyki Kripkego-Putnama oraz współczesnego dorobku polskiej i zagranicznej teorii i filozofii prawa.""
W niniejszym artykule autor wskazuje trzy przykładowe obszary rozważań współczesnej anglosaskiej teorii i filozofii prawa, dla których dwupoziomowość języka prawnego stanowi atrakcyjną koncepcję wyjaśniającą. Prowadzone rozważania koncentrują się na zestawieniu dwupoziomowości z takimi zagadnieniami, jak idea formalizmu prawniczego F. Schauera, koncepcja dynamicznej wykładni prawa W. Eskridga Jr. oraz dystynkcja pomiędzy interpretacją a konstrukcją w ujęciu amerykańskiej teorii wykładni (K. Whittingthon i L. Solum).
W konkluzji tekstu autor stara się wykazać, że dwupoziomowość języka prawnego, zakładana przez derywacyjną koncepcję wykładni, decyduje o adekwatności tej koncepcji wykładni do opisu działań interpretacyjnych prawników oraz o jej przewadze nad innymi koncepcjami wykładni.
From the above premise I will limit myself to draw two conclusions for how legal interpretation should be carried out. First, I argue that the possible world described by the legal text has to be ‘accessible’ from the real world, i.e. it has to be feasible to transform the actual world into the described one. Were it otherwise, the possible world could not serve as a model for adjustment. The accessibility requirement imposes obligations on the interpreters to secure the rationality of the possible world decoded from the text, amongst other to secure that the description of this world is not contradictory and – as a consequence – the law of excluded middle is obeyed in the possible world described by the legal text.
Secondly, I argue for the inevitability of interpretative discretion arising from the requirement to decode a sufficiently ‘saturated’ picture of the possible world., i.e. possessing enough properties to resemble the actual world. As texts have a limited number of sentences and worlds have an unlimited number of properties, interpreters have to supplement the picture of a possible world to achieve its coherence (seamlessness???). This involves the inclusion of some additional, non-predetermined features that fit in with the properties of the world predefined by the legal text. This process of saturation consists of filling in so-called ‘places of indeterminacy’ (Roman Ingarden) with content implicated by other features of the possible world. I also argue that the discretion resulting from the necessity of filling in the places of indeterminacy is justified by the requirement of fulfilling the intention of the lawmaker to make the possible world described by the legal text real.
The presented theory is based on contemporary theories of discourse representation and so-called ‘text-world theory’ by J. Gavins. Phenomenalism and causal (historical) theories of reference provide its philosophical background.
Artykuł prezentuje zarys teorii interpretacji prawniczej opartej na założeniu, że tekst prawny, rozumiany jako zbiór tekstów wszystkich aktów prawnych obowiązujących w danym miejscu i czasie, opisuje jeden spójny i racjonalny świat możliwy. Obraz tego możliwego świata jest odtwarzany z tekstu prawnego i służy jako całościowy model, do którego dostosowuje się świat rzeczywisty w procesie stosowania prawa.
Z powyższego założenia wyprowadzam w niniejszym opracowaniu dwie konsekwencje dla procesu interpretacji prawa. Po pierwsze, podnoszę, że świat możliwy opisywany przez tekst prawny musi być ‘dostępny’ ze świata rzeczywistego, a więc musi istnieć fizyczna, logiczna i funkcjonalna możliwość przekształcenia świata rzeczywistego w ten świat możliwy. W przeciwnym razie świat możliwy opisywany przez tekst prawny nie mógłby służyć jako wzorzec dostosowania dla świata rzeczywistego. Wymóg dostępności skutkuje wieloma obowiązkami interpretatora w zakresie sposobu odtwarzania z tekstu prawnego racjonalnego i możliwego do realizacji obrazu świata możliwego.
Po drugie, argumentuję, że dyskrecjonalność interpretatora jest nieunikniona, ponieważ wynika z konieczności odtworzenia z tekstu prawnego wystarczająco ‘nasyconego’ obrazu świata możliwego, a więc obrazu cechującego się wystarczającą ilością właściwości, aby przypominał on strukturę właściwości świata rzeczywistego. Ponieważ każdy tekst posiada ograniczoną liczbę zdań, natomiast każdy świat ma nieskończoną ilość właściwości, interpretator musi uzupełnić obraz świata możliwego o właściwości nieopisane w tekście, a konieczne do spójności tego świata. Wymaga to zawarcia w tym obrazie dodatkowych niewyrażonych w tekście właściwości, które jednak muszą pasować do właściwości wyrażonych w tekście. Wskazany proces ‘nasycania’ obrazu świata możliwego polega na wypełnianiu tzw. miejsc niedopowiedzenia (Roman Ingarden) treścią implikowaną przez inne cechy tego świata.
Prezentowana koncepcja jest oparta na współczesnych teoriach reprezentacji dyskursu i tzw. teorii świata tekstu autorstwa J. Gavins. Jej tło filozoficzne obejmuje fenomenalizm i przyczynową (historyczną) teorię referencji.
"
a) powstania stanów rzeczy niemożliwych do zaistnienia w znanym nam świecie, czy też
b) stanów rzeczy, które nie mogą współwystępować w znanym nam świecie jednocześnie ze innymi stanami rzeczy, które wynikają z powszechnie przyjętej interpretacji innych części tekstu prawnego.
W ramach uzasadnienia ontologicznego AADA jawi się zatem jako argument ze struktury świata, nie zaś argument z racjonalnych preferencji osoby prawodawcy. Jak wykazuję w dalszej części artykułu, takie uzasadnienie dla AADA posiada zdecydowaną przewagę nad uzasadnieniem tradycyjnym, między innymi dlatego, że zapewnia większy obiektywizm w jego stosowaniu i związaną z nim sprawdzalność poprawności używania AADA przez prawników.
W wyniku przeprowadzonego badania wykazano istnienie prawidłowości, świadczących o tym że istnieje hierarchia zasad prawnych wynikająca z częstości ich powoływania w orzeczeniach TK, a na jej szczycie znajduje się zasada równości. Oczywiście nie musi to wynikać z przyjęcia przez sędziów TK określonych systemów etycznych, ale na przykład z charakteru spraw wnoszonych przed TK. W procesie transformacji ustroju politycznego, gospodarczego i społecznego częste odwoływanie się do zasady równości jest zrozumiałe. Ponadto uwidocznione zostały różnice między częstotliwością występowania poszczególnych zasad w przypadku wykładni konstytucji oraz częstotliwością występowania poszczególnych zasad w tych fragmentach uzasadnień orzeczeń, które zawierają wykładnię ustaw i innych aktów prawnych. Doniosłość statystyczną mają jednak wyłącznie różnice w zakresie powoływania się na zasadę równości, która występuje częściej w wykładni konstytucji niż w wykładni innych aktów prawnych. Istnieje, jak wynika z wyników przeprowadzonych badań, również grupa wartości najczęściej powoływanych przez TK w jego orzecznictwie, wśród których dominują wewnętrzne wartości konstytucyjne, wprost wyrażone w tekście ustawy zasadniczej. Co istotne istnieje niewspółmierność użycia terminu „wartość” w toku wykładni konstytucji oraz w toku wykładni ustaw i innych aktów prawnych, wynikająca z relatywnie niskiego udziału odwołań do wartości rozumianych w sposób aksjologiczny w toku wykładni ustaw i innych aktów.
Przeprowadzone badanie uwidacznia również hierarchię metod wykładni stosowanych przez TK wynikającą z częstości powoływania się na każdą z metod, na której szczycie znajduje się wykładnia językowa. Co przy tym istotne nie istnieją znaczące różnice między metodami wykładni stosowanymi przez TK w toku wykładni konstytucji a metodami stosowanymi w toku wykładni ustaw i innych aktów prawnych.
Ogólna konkluzja płynąca z przeprowadzonego badania sprowadza się do pewnej trudności w rozstrzygnięciu, czy uzyskane wyniki w zakresie aksjologii orzecznictwa Trybunału Konstytucyjnego oraz stosowanych przezeń metod wykładni potwierdzają pasywizm sędziowski (widoczny w autonomii aksjologicznej i preferencji dla wykładni językowej), czy też wskazują na ukrycie rzeczywistego aktywizmu aksjologicznego i wykładniczego.