Misunderstanding in language and ambiguity in Law

Co-authored with Ms Diana Madibekova

Diplomacy as a practice crucially depends on the use of language. The words of diplomats can foster agreement, persuade, or create tensions. Similarly, international law creates meaning and obligations through the use of language. It is, therefore, important to take a step back from the day-to-day work and reflect more broadly on the use of language in diplomacy and international law.

The fundamental building blocks of every human language are two elements: lexicon and grammar. To know a particular language – to speak it, to write it,  to understand it – one must control both components. If language deals with word meaning, the law deals with sentence meaning, and at this point they are interconnected.

Investigation into law and language is quite extensive, emanating not only from the field of linguistics, but also from other social sciences. Three principal strands of research have evolved. For some researchers, the primary concern centres on language, and the law provides relevant data for linguistic analysis and the testing of theories about language. For others, the law becomes the main ingredient, and language serves as a vehicle for understanding the legal process and the workings of that system. For still other researchers, the major interest resides in the disciplines of psychology, sociology, or anthropology; language as it operates within the legal system functions as a means for investigating psychological processes, societal interactions, or cultural traits [1].

Since words do not apply themselves, but rather it is we who apply them to situations, certainly we may need further rules for their application, and of course we will eventually run out of analytic meaning-rules before a precise application is determined. The phrase ‘it is we who apply them to situations’ might have different meaning in various cases. There are two questions that arise: 1) Who are we, the ones who apply? 2)  Is it a life or legal situation? There cannot be a rule to tell us how to interpret every meaning of each word: sooner or later we simply make a judgment. And the judgment depends upon our way of thinking, our cultural background, and the career field in which we are working. The answer for the first question is vague; the word ‘we’ is not defined by a particular classified group. The answer for the second is ambiguous, because the term ‘situation’ can be used as in real life situations as well as legal situations/cases. In this matter, it is important not to confuse vagueness with ambiguity; thus, misunderstandings of words might lead to ambiguity in legal interpretation. Those who are engaged in the sphere of language and law know most the power of the word and a strong sentence.

How much simpler it would be to say that normative language means the same in its moral uses as it does in its legal uses. While a person who says that you must stop at a red light may display various attitudes, what they assert is a necessity that implies a (presumptively) conclusive reason to stop. If the statement is a statement of law, the necessity is a legal necessity. If the statement is a moral statement, the necessity is a moral statement. [2] Both misunderstanding in language and ambiguity in law raise an extraordinarily important set of problems for the philosophy of law. We cannot know that a word is vague, unless we know something about its use. We also cannot know that a law is ambiguous, unless we know something about its interpretation.

References:

1. Mellinkoff D (1963) The Language of the Law. Boston: Little, Brown & Co.
2. Stanford University (2016) Law and Language, in Stanford Encyclopedia of Philosophy. Available at https://plato.stanford.edu/entries/law-language/ [accessed 3 November 2016].

Ms Anar Sarsenova is a senior lecturer at the Faculty of Philology, L.N. Gumilyov Eurasian National University in Astana, Kazakhstan. She holds an MA in Pedagogy. Her professional interests include ethno-linguistics, semantics, language as a cultural tool, intercultural communication, and teaching English as a foreign language.

Ms Diana Madibekova is currently pursuing her LL.M degree at the University of Wroclaw in Wroclaw, Poland. Her professional interests include world affairs, international law and dispute settlement, legal culture, and the connection between language and the law, among others.