This article probes the usefulness of selected theories from Cognitive Linguistics in the context of statutory interpretation. The presumption of legal language is a well-established rule of statutory construction in Polish legal practice that comes from the internationally recognised theory by Jerzy Wróblewski. It rests on a controversial assumption that there are different levels of generality in legal language (i.e. the language of statutes) and a single term may be given different meanings depending on the level of generality that is (...) referred to. The authors use the notion of basic level categorisation from the cognitive theory of prototypes to explain this mechanism. Legal concepts, not unlike ordinary concepts, form hierarchical taxonomies. A single term may denote concepts that are situated at different levels in different conceptual taxonomies. In the absence of special circumstances, a legal term should be given the meaning that resides at a higher level of categorisation in the respective legal taxonomy. This way, the presumption of legal language is found to be justified on both linguistic and psychological grounds. (shrink)

In this article we investigate the relationship between legal translation and legal interpretation. The common wisdom is that these activities are closely related, but the nature of that relationship remains disputable. We adopt the perspective of legal theory—as opposed to the perspective of translation studies—which seems to be underrepresented in the literature of the subject. We start with distinguishing between the two notions of legal interpretation: the wide sense and the narrow sense. We argue that the relationship between legal translation (...) and legal interpretation changes significantly depending on the notion of legal interpretation that is assumed. The wide sense is often assumed by translation scholars and it renders legal interpretation as a necessary prerequisite for legal translation. Jurists, on the other hand, usually assume the narrow sense which renders legal interpretation and legal translation as two distinct activities with some shared features. We then focus on four issues of legal interpretation in the narrow sense: the types of legal interpretive problems, the creation of legal interpretive problems, the methods of legal interpretation, the resolution of legal interpretive problems. We conclude with a detailed comparison of legal translation and legal interpretation in the context of those four issues. (shrink)

The paper addresses the question how descriptive language is used to express legal norms. Sentences we find in legislative acts, i.e. statutes, constitutions and regulations, express legal norms. Linguistically speaking, there are various grammatical and lexical ways of expressing norms, such as imperative mood, modal verbs, deontic verbs, etc. However, norms may also be expressed by descriptive sentences, namely sentences in present or future tense and indicative (declarative) mood (i.e. _The minister determines the tax rate_). In many civil law countries (...) (including Poland), this is a very common, if not the default, form of expressing norms in legislative texts. Often presented as a legal peculiarity, this phenomenon has yet to draw much academic attention. The normative meaning of descriptive sentences is usually attributed to purely pragmatic factors stemming from our shared assumptions about the legal system. However, a closer look reveals that similar grammatical constructions are ubiquitous in everyday communication and in different languages. We tend to utter various sorts of directives using descriptive sentences (_Now we add a spoon of salt to the sauce_; _credit cards are not accepted_). This suggests the possibility for a linguistic (as opposed to exclusively legal) explanation. This paper aims to offer such an explanation. Rather than resorting to formal semantics, so prevalent in legal theory, it borrows from Cognitive Linguistics to reveal the cognitive underpinnings of our surprising tendency to express normativity in descriptive terms. This involves four different, yet complementary, theories. Firstly, the theory of conceptual metaphor by George Lakoff and Mark Johnson which explains the phenomenon in question in terms of the metaphor “ ought is is ”; with “ ought ” as the more abstract target domain and “ is ” as the more concrete, cognitively simpler source domain. Secondly, the theory of speech act metonymy by Panther and Thornburg which presents descriptive legal sentences as referring to various components of the underlying cognitive scenario of obligation. Thirdly, Ronald Langacker’s notion of the virtuality of language as the explanation for non-present, including future, perpetual and directive, uses of the present tense. Fourtly, the notion of normative generics which points to the nominal, as opposed to verbal, structure of descriptive legal sentences as the source of their normativity. (shrink)