Let us now consider the creation of general rules of law. In England, there is a 20% VAT. Indeed, the Parliament of the United Kingdom (in a formulation that you may well consider quite strict) has decided that “VAT will be charged at a rate of 20%” (Value Added Tax Act 1994 § 2(1), as amended by the Finance (No 2) Act 2010, § 3(1)), and that English law treats Parliament as legislative. One can envisage a system in which the contribution of this Act to the law of England is limited by a margin of appreciation on the part of tax collectors to levy more or less 20%. We can envision a system in which judges would have fair jurisdiction to reduce the tax when a company that provides goods and services is threatened with bankruptcy. Rather, there are compelling good reasons why English law treats the legislature`s decision as if it had determined the tax. The main reason is, of course, the attribution of the power of taxation to Parliament; Subsidiary but very important reasons concern the values of the rule of law, which must be safeguarded when taxpayers, law enforcement officers and judges are all bound by Parliament`s decision. Legal theorists have attempted to construct theories about the importance of legal language and theories of legal interpretation based on specific features of law, legal systems, and the use of language in legal education. The entries on constitutionalism (see Section 7, “Constitutional Interpretation”), on interpretation and consistency in the explanatory memorandum of law, on legal interpretation, on the system of legal interpretation, on the nature of law, and on naturalism in the philosophy of law all deal with theories of legal interpretation. This section discusses the characteristics of language that pose challenges to the philosophy of law and the philosophy of language. Any good presentation of the legal effect of the use of language in legislation depends on the context of its use (which will be discussed in this section).
Section 2.3 discusses the “pragmatic” effects of language use, such as contextual dependence, which have long been the subject of legal debate; More recently, the use of Greek and post-Gricean pragmatics has become an important field of discussion among philosophers of language and philosophers of law. These pragmatic features of communication pose insurmountable difficulties for any attempt to give a truthful account of legal interpretation sufficiently well organized to be called “theory”. Debates on the pragmatics of legal language are often based on the idea that a legislator`s linguistic use means that the content of the linguistic communication in question determines the content of the law. But we will see in section 3 that even this premise is disputed; It has been challenged by theorists who consider that law is determined by moral reasons to draw conclusions about people`s rights, duties, powers, and responsibilities in the face of the facts of legal practice and history. First, and most obviously, you`ll learn new words you`ve probably never encountered before. These words and expressions only have meaning as legal terms. Words or phrases such as res judicata, impleader, enforceable, demurrer and mens rea force students to acquire new vocabulary. Learning the meaning of these words is essential to understanding any case or discussion in which they are used. The basic argument is that the objectives of a legal system very often include the attribution of decision-making powers that allow a person or authority not only to perform an act that he or she knows will be considered legally significant, but also to decide what the law should look like on a particular point.
The law may empower them to take an act which it itself considers to be its decision on a question of right, duty or responsibility. For example, if the UK Parliament decides that “VAT will be calculated at a rate of 20%”, the contribution to the law is that VAT will be charged at a rate of 20%. Ronald Dworkin argued that Hart`s emphasis on language had a toxic effect on the philosophy of law. He wrote that Hart suffers from a “semantic sting” because he mistakenly thought “that all lawyers follow certain linguistic criteria in judging legal principles” (Dworkin 1986b, 45; see section 6.1 below). This argument in philosophy of language has given rise to much debate in philosophy of law (see, for example, Coleman`s essays, 2001). Dworkin argued that legal philosophy needed to make a fresh start in addressing the challenge of explaining disagreements over the law. Any legal theory, he argued, must be a “constructive interpretation” of legal practice. A constructive interpretation is an interpretation that corresponds at the same time to the facts of the object of interpretation (in the case of legal interpretation, the object is not a particular act of communication of a legislator, but the whole of the practice of the community) and presents it as an object that fulfills its purpose. From this point of view, a theory that does not present the law as an exercise in constructive interpretation cannot even compete with a theory of law, because it suffers from semantic sting. And the communication model is incompatible with the idea that the law is an exercise in constructive interpretation. In addition, legal English is useful because of its dramatic effect: for example, a summons forcing a witness to appear in court often ends with the archaic threat of “Do not fail, at your own risk”; “Danger” is not described (arrested and charged with contempt of court), but the formality of the language tends to have a stronger effect on the recipient of the summons than a simple statement such as “We can arrest you if you do not appear”.
We have seen that Bentham`s theory of normative language in general is that, because there is no perceptible human object, substance, or affection for which they present themselves as names, words like “law” must be “explained” by paraphrasing the sentences that contain them. Paraphrasing would use sentences that contain only words related to objects, substances, and affections. If such a paraphrase is not available, he considers normative language meaningless. Thus, he noted that the term “natural rights” is “mere nonsense: natural and non-prescribed rights, rhetorical absurdity; Nonsense on stilts” (Bentham 1843, Art.II). Although language doesn`t make sense, he thought, we can explain its use – as a way to do something. The use of such absurd expressions was a way for the speaker to express his preferences. The question of whether legal pragmatics is simply part of the pragmatics of language use in general is disputed (cf. Dascal and Wróblewski 1988). It is obvious that if the pragmatics of the use of language depends on the context of a declaration, the legal context of legislative language has an impact on the meaning conveyed and therefore on the right that is made. Scott Soames argued that the question of the relationship between the content of the law and authoritative sources (such as statutes) “is an example of the broader question of what determines the content of ordinary language texts” (Soames 2008). It is a popular idea that when a legislature passes a law, “the content of the law is what the legislature claims and is committed to doing by adopting the language of the law” (Soames, 2008).
Speakers can engage in something they have not claimed and can make claims in contexts that make it clear that they are not committed to what they have claimed. There are insurmountable objections to Bentham`s idea that a law is a set of signs. Law (in the relevant sense) is the systematic regulation of the life of a community through norms considered binding on the members of the community and its institutions. A law is a norm that is part of such a systematic form of regulation. Many of these norms do not have canonical linguistic formulation (that is, any form of words that, according to the law, determines the content of the norm). Lawyers in common law systems are familiar with these norms: murder can be a criminal offense (or defamation can be a misdemeanor, or some agreements can be enforceable as contracts…), not because a person or institution expresses a rule that it should be so, but because the institutions of the legal system generally treat murder as a criminal offense (or defamation as a crime…).