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LANGUAGE AND INTERSUBJECTIVITY IN LEGAL INTERPRETATION

O. Bogucki

Abstract

The paper explores relations beetwen philosohical views of language and the problem of intersubjectivity in interpretation of legal text. The purpose of the paper is to show and analyse the consequences and difficulties with aplying philosophical ideas of language to legal interpretation with respect to intersubjectivity of that kind of interpretation. Author characterizes two general phlilosophical views of natural language – the structuralist view and the nominalist view. The structuralist view is based on two main tenets: (1) distinction beetwen the semantic language system and the language practice, and (2) believe that the language system is playing (and should be playing) some kind of normative role against the language practice (by restraining it in some kind of way). Nominalist view rejects these both preasumptions and tends to exlplain the language practice in other way, but not with recourse to the language system. If we apply these two philosophical views of language into theory of legal interpretation numbers of questions arise in respect to intersubjectivity of legal interpretation. Author argues that if we want to remove the idea of language system (as nominalists do), we need to find some alternative basis for intersubjectivity in interpretation of legal text (like for example idea of the one clear, commonly accepted, order of values). But every possible alternative implies some serious difficulties on both, theoretical and practical level. Taking this into account, applying structural view of language in theory and practice of legal interpretation seems more convincing, but it should be weakened.

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DOI resolver: doi.org/10.5593/SGEMSOCIAL2017/HB11/S02.044

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