Аннотация
The paper below intends to present and evaluate the theories of vagueness in the language of criminal law as exemplified in legal definitions. In the theory aimed to facilitate the task of interpretation of laws and statutes, in practice legal definitions they may be vague themselves, a phenomenon which either jeopardizes the stability of law and order, or makes law more flexible and compliant with the changing status quo. How one approaches the matter would depend upon a variety of factors. Among them we will find the branch of law or the type of the legal system. As far as criminal law is concerned, vague expressions are to be avoided. However, some legal systems “stigmatize” them more than others. In the American legal system the “void-for-vagueness” doctrine best illustrates the negative attitude of law enforcement institutions towards vague and unclear language. In the Polish law, on the other hand, it is not so explicitly criticized. Leaving room for free interpretation, vague language may prove a useful tool if literal interpretation defies the so-called “common-sense” understanding (very often referred to in works dedicated to law interpretation). Once a review of both legal systems is made, the author tries to arrive at a definite conclusion whether we should treat vagueness in the language of criminal provisions as something sought-for or rather undesirable.
Библиографические ссылки
Azar, Moshe. 2006. Transforming Ambiguity into Vagueness, In Interpretation, Law and the construction of meaning. Collected papers on Legal Interpretation in Theory, Adjudication and Political Practice, ed. Anne Wagner, Wouter Werner, and Deborah Cao, 121-137. Dordrecht: Springer.
Charnock, Ross. 2006. Lexical Indeterminacy: Contextualism and Rule-Following, In Interpretation, Law and the construction of meaning. Collected papers on Legal Interpretation in Theory, Adjudication and Political Practice, ed. Anne Wagner, Wouter Werner, and Deborah Cao, 21-47. Dordrecht: Springer.
Gizbert-Studnicki. Tomasz 1978. Wieloznaczność leksykalna w interpretacji prawniczej, Kraków: Wydawnictwa Uniwersytetu Jagiellońskiego.
Goźdź-Roszkowski, Stanisław 2011. Patterns of Linguistic Variation in American Legal English. A Corpus-Based Study. Frankfurt am Main: Peter Lang.
Grice, Paul. 1989. Studies In The Way of Words. Boston: Harvard University Press.
Hart, Herbert L. Adolphus. 1958. Positivism and the Separation of Law and Morals, In Harvard Law Review 71 (4): 593–629.
Hart, Herbert L. Adolphus. 1990. The Concept of Law. Oxford: Clarendon Press.
Havranek, Bohuslav. 1964. The functional differentiation of the standard language, In: A Prague School Reader on Esthetics, Literary Structure, and Style, ed. Paul L. Garvin, 3-16. Washington, DC: Georgetown University Press.
Hyland, Ken. 1998. Hedging in Scientific Research Articles. Amsterdam: John Benjamins.
Jopek-Bosiacka, Anna. 2006. Przekład prawny i sądowy. Warszawa: Wydawnictwo Naukowe PWN.
Kaczmarek, Karolina. 2013. Precision and indeterminacy of expressions in legal provisions on the example of Polish and Hungarian, In Comparative Legilinguistics, vol. 13/2013: 51-68.
Kielar, Barbara. 1977. Language of Law in the Aspect of Translation. Warszawa: Wydawnictwo Uniwersytetu Warszawskiego.
Kornelius, Beata. 2009. General Clauses in the Process of Law Application. Chosen Aspects, In Studies in Logic, Grammar and Rhetoric, vol. 19 (32): 89-109.
Lakoff, George. 1987. Women, Fire, and Dangerous Things. Chicago: University of Chicago Press.
Langacker, Ronald W. 1987. Foundations of cognitive grammar: Theoretical Prerequisites. Stanford, CA: Stanford University Press.
Lippman Ross Matthew. 2013. E-Study Guide for Contemporary Criminal Law: Concepts, Cases, and Controversies, http://www.worldcat.org/isbn/1478435216.
Marmor, Andrei. 2009. Can the law imply more than it says? On Some Pragmatic Aspects of Strategic Speech, http://ssrn.com/abstract=1517883.
Panek, Grzegorz. 2012. Semantic vagueness and terminological equivalence in legal translation. PhD diss., Katowice: University of Silesia.
Putnam, Hilary. 1975. The meaning of 'meaning', In: Minnesota Studies in the Philosophy of Science 7: 131-193.
Sójka-Zielińska, Katarzyna 2011. Historia prawa, Warszawa: Lexis Nexis.
Świecki, Dariusz. 2009. Wina w prawie karnym materialnym i procesowym, In Prokuratura i Prawo 2009, nr 11-12: 5-14.
Source texts
Polish Civil Code, Dz.U. 1964 nr 16 poz. 93. Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny. (accessed on 15th of April 2015).
Polish Penal Code, Dz. U. 1997 nr 88 poz. 553 Ustawa z dnia 6 czerwca 1997 r. Kodeks karny (tekst jednolity) – LEX a Wolters Kluwer business. Kodeksy i konstytucja.
Rozporządzenie Prezesa Rady Ministrów z dnia 20 czerwca 2002 r. w sprawie “Zasad techniki prawodawczej” Dz.U. 2002 nr 100 poz. 908; Annex to the regulation of the Prime Minister as of 20th June 2002 on “Principles of Legislative Technique” (Journal of Laws, No 100, item 908). (accessed on 15th of April 2015).
American Model Penal Code – Selected Provisions, http://www1.law.umkc.edu/suni/CrimLaw/MPC_Provisions/model_penal_codedefault_rules.htm (accessed on 15th of April 2015).
Online references
The official website of the American Law Institute, http://www.ali.org/. (accessed on 15th of April 2015).
The official American database of legal information for lawyers and law students, http://law.justia.com/constitution/us/amendment-14/54-void-for-vagueness-doctrine.html (accessed on 15th of April 2015).
An opinion of Mr. Chief Justice TAFT in a case CLINE, Dist. Atty. v. FRINK DAIRY CO. et al (argued April 29, 1927, decided May 31, 1927), https://bulk.resource.org/courts.gov/c/US/274/274.US.445.304.html (accessed on 15th of April 2015).
Лицензия
When submitting a paper the author agrees to the following publishing agreement and processing personal data.
PUBLICATION AGREEMENT, COPYRIGHT LICENSE, PERSONAL DATA PROCESSING CONSENT
This is a publication agreement and copyright license (“Agreement”) regarding a written manuscript currently submitted via Pressto platform
(“Article”) to be published in Comparative Legilinguistics International Journal for Legal Communication (“Journal”).
The parties to this Agreement are:
the Author or Authors of the submitted article (individually, or if more than one author, collectively, “Author”) and Comparative Legilinguistics International Journal for Legal Communication (“Publisher”), address al. Niepodległości 4, 61-874 Poznań, represented by its editor in chief Aleksandra Matulewska.
§1. LICENSE OF COPYRIGHT
a) The Author and the Publisher agree that the Author grants a Creative Commons Attribution 4.0 International License, which is incorporated herein by reference and is further specified at Creative Commons — Attribution 4.0 International — CC BY 4.0 copyright license in the Article to the general public.
b) The Author grants to the Publisher a royalty-free, worldwide nonexclusive license to publish, reproduce, display, distribute, translate and use the Article in any form, either separately or as part of a collective work, including but not limited to a nonexclusive license to publish the Article in an issue of the Journal, copy and distribute individual reprints of the Article, authorize reproduction of the entire Article in another publication, and authorize reproduction and distribution of the Article or an abstract thereof by means of computerized retrieval systems (such as Westlaw, Lexis and SSRN). The Author retains ownership of all rights under copyright in the Article, and all rights not expressly granted in this Agreement.
c) The Author grants to the Publisher the power to assign, sublicense or otherwise transfer any and all licenses expressly granted to the Publisher under this Agreement.
d) Republication. The Author agrees to require that the Publisher be given credit as the original publisher in any republication of the Article authorized by the Author. If the Publisher authorizes any other party to republish the Article under the terms of paragraphs 1c and 1 of this Agreement, the Publisher shall require such party to ensure that the Author is credited as the Author.
§2. EDITING OF THE ARTICLE
a) The Author agrees that the Publisher may edit the Article as suitable for publication in the Journal. To the extent that the Publisher’s edits amount to copyrightable works of authorship, the Publisher hereby assigns all right, title, and interest in such edits to the Author.
§3. WARRANTIES
a) The Author represents and warrants that to the best of the Author’s knowledge the Article does not defame any person, does not invade the privacy of any person, and does not in any other manner infringe upon the rights of any person. The Author agrees to indemnify and hold harmless the Publisher against all such claims.
b) The Author represents and warrants that the Author has full power and authority to enter into this Agreement and to grant the licenses granted in this Agreement.
c) The Author represents and warrants that the Article furnished to the Publisher has not been published previously. For purposes of this paragraph, making a copy of the Article accessible over the Internet, including, but not limited to, posting the Article to a database accessible over the Internet, does not constitute prior publication so long as the as such copy indicates that the Article is not in final form, such as by designating such copy to be a “draft,” a “working paper,” or “work-in-progress”. The Author agrees to hold harmless the Publisher, its licensees and distributees, from any claim, action, or proceeding alleging facts that constitute a breach of any warranty enumerated in this paragraph.
§4. TERM
a) The agreement was concluded for an unspecified time.
§5. PAYMENT
a) The Author agrees and acknowledges that the Author will receive no payment from the Publisher for use of the Article or the licenses granted in this Agreement.
b) The Publisher agrees and acknowledges that the Publisher will not receive any payment from the Author for publication by the Publisher.
§6. ENTIRE AGREEMENT
a) This Agreement supersedes any and all other agreements, either oral or in writing, between the Author and the Publisher with respect to the subject of this Agreement. This Agreement contains all of the warranties and agreements between the parties with respect to the Article, and each party acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those warranties and agreements embodied in this Agreement.
b) In all cases not regulated by this Agreement, legal provisions of Polish Copyright Act and Polish Civil Code shall apply.
c) Any disputes arising from the enforcement of obligations connected with this Agreement shall be resolved by a court competent for the headquarters of the Publisher.
d) Any amendments or additions to the Agreement must be made in writing and signed by authorised representative of both parties, otherwise being ineffective.
e) This Agreement is signed electronically and the submission of the article via the PRESSto platform is considered as the conclusion of the Agreement by the Author and the Publisher.
f) Clause for consent to the processing of personal data - general
g) The Author shall give his or her consent to the processing of their personal data in accordance with the Act of 10 May 2018 on the protection of personal data and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of persons physical in connection with the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC (General Data Protection Regulation) for the purpose and in connection with making publications available on the PRESSto scientific journals platform and DeGruyter platform, guaranteeing the security of services rendered, and improving them.
I HAVE READ AND AGREE FULLY WITH THE TERMS OF THIS AGREEMENT.
The Author The Publisher