Friday, 27 May 2022

Link between Legal Semantics and Linguistic Semantics


The legal methods of interpretation show a certain analogy to the methods of linguistic semantics. It appears that positivistic legal interpretation operates in a manner which reminds one of the working methods of structural semantics. is a fixed something that exists outside of the language, that one can ‘find’ by searching properly, and where it is not so relevant where it is found, namely behind the term or in the head of the user of the term, or elsewhere ‘out there in the world’ as that it somewhere to be picked up, has been not unimportant in multidisciplinary semantics.

What is certain is that there must be definability, and definability in the traditional sense means that there must be delimiting borders. We hereby come back to structural semantics and in legal theory to positivism, which two approaches indeed started out from these delimiting borders and from there in the first instance concluded that a number of necessary and sufficient characteristics must be found for the definability of a concept.

If one distances oneself from this approach, as happens in cognitive semantics, one lets go of the delimitation boundaries, but also the idea that the meaning of the concept can be objectively determined, that is, free from value judgments, finds itself somewhere in the world or in space (container model) and is immutable as well as delimited. This last point still applies to those who adhere to the grammatical method.

Because they start from the position that legal concepts have an own or immanent meaning which can also be deduced for future cases from the intention of the legislator, and, if this is unclear or out-dated, from the limits that general use of language imposes, they assume that the borders can be objectively determined, and the text of the law possesses an imminent and immutable meaning which the judge in his legal interpretation process has only to find. The grammatical assessment hereby shows considerable similarity to legal positivism discussed earlier. Although this movement has been superseded, remnants of its way of thinking – as is always the case with movements – continue to exercise their influence in the thought patterns of people for a long time after.

As regards the analogy to cognitive semantics and the synthesis-theories which flow therefrom, such as the ‘Theory-theory’, one can refer to the teleological or functional method in law, or – rather – to the way of thinking whereby functional reasons such as the ratio legis function as element which concretize the meaning and relate it to a hierarchical structure of prototypical aspects of meaning. Underlying and other higher norms, principles of law and points of reference of a policy nature are equally relevant for concretizing the meaning.

In particular the above discussed comparative concepts of function and of principles and policies are therefore related to the starting points of the teleological method. The legal theory of Typuslehre, extensively discussed German, which with its divisions into klassenbegrippen and typebegrippen is moreover first of all a development from the structural-semantic insights of the classical theory of law, seems to be the first legal doctrine to consider premises which are related to the ideas of cognitive semantics. In the work of Kuhlen the relationship between cognitive-semantic language theory views and that of the Typuslehre is first shown (Kuhlen 1977:136) and the comment made that neither in the camp of analytical philosophy nor in that of legal theory does this relationship seems to be recognized.

Link between the Legal Semantics and Linguistic Semantics by Velanati Jyothirmai @ Lex Cliq

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