Marcin Matczak

The study is focused on analysing formalism which is a strategy of applying laws by stressing the formal features of the law, even if the consequences of the strategy like that are difficult to accept in light of legal principles and the general requirement of equity. Contrary to the common view presented in the legal literature, the study sets out arguments that the formalism is neither justified in the tradition of legal positivism, neither in the idea of the rule of law. In particular it is not true that formalism secures stability and predictability of laws application. On the other hand, a non-formalistic approach to applying laws, consisting in a simultaneous application of strict rules and general principles and in acknowledging the purpose and the function of the law as important factors, allows for realising the values that are traditionally linked with legal positivism. That non-formalistic approach to applying laws, called in the study 'interpretative holism', was supported by a wide use of contemporary philosophy of language, in particular the Kripke-Putnam semantics and the findings of the contemporary philosophy of law and legal theory. Praca jest poświęcona analizie zjawiska formalizmu, które jest strategią stosowania prawa, podlegająca na podkreśleniu wagi formalnych cech prawa, nawet jeśli strategia taka prowadzi do rezultatów trudnych do zaakceptowania z punktu widzenia zasad prawa albo ogólnych wymogów słuszności. Przeciwnie do dotychczasowych stanowisk reprezentowanych w literaturze, w pracy przedstawione są argumenty, że formalistyczne podejście do stosowania prawa nie ma uzasadnienia, ani w koncepcji pozytywizmu prawniczego, ani w koncepcji rządów prawa. Z drugiej strony nieformalistyczne podejście do stosowania prawa, które polega głównie na współstosowaniu reguł i zasad oraz na uwzględnianiu celu i funkcji prawa, pozwala na realizację wartości tradycyjnie przypisywanych koncepcji pozytywizmu prawniczego. Ta nieformalistyczna strategia stosowania prawa, nazywana w pracy holizmem interpretacyjnym, została w pracy uzasadniona poprzez szerokie wykorzystanie współczesnej filozofii języka, w szczególności tzw. semantyki Kripkego-Putnama oraz współczesnego dorobku polskiej i zagranicznej teorii i filozofii prawa."

The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic (locutionary) one. A closer examination shows that it is, in fact, an illocutionary one. In the paper, I draw the consequences for legal interpretation of this more theorized model of legislative intent.

The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed. My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses) To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent.

By significantly diminishing the role intentions play in communication, in Imagination and Convention Lepore and Stone attempt to overthrow the Gricean paradigm which prevails in the philosophy of language. The approach they propose is attractive to theorists of legal interpretations for many reasons. Primary among these is that the more general dispute in the philosophy of language between Griceans and non-Griceans mirrors the dispute between intentionalists and non-intentionalists in legal interpretation. The ideas proposed in Imagination and Convention naturally support the non-intentionalist camp, which makes them unique in the contemporary philosophy of language.In this paper I argue that despite an almost universal acceptance for the Gricean paradigm in legal interpretation, a strong, externalist approach to language, one in which interpretation is based on conventions, not intentions, better reflects the nature of legal language. The latter functions in societies as a written, public discourse to which many individuals contribute; the number of contributions renders the identification of individual intentions impossible, making it badly suited to a Gricean, intention-based analysis. Lepore and Stone’s discourse-based, non-Gricean alternative provides a better tool for the theorist of legal interpretation to analyse legal language. In what follows, I first present an overview of the disputes in legal interpretation that may be affected by Imagination and Convention. In the second section, I analyze several of Lepore and Stone’s theses and apply them to issues in legal interpretation, paying particular attention to their concept of “direct intentionalism.” In the last section, I outline some proposals for finishing the anti-Gricean revolution, which involves Ruth Millikan’s idea of conventions as lineages.

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one. The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time. In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”.

This report presents the results of a research project which examined how Polish administrative courts exercise discretionary powers when deciding cases related to business activity. When a business enterprise asks the court to review actions taken by administration, judges decide whether an administrative body has used its powers in accordance with the law. The law in this case includes both the relevant statutory regulations but also more general principles originating from other sources, such as the Constitution or European Union law. It is generally accepted that in such cases courts have discretion, i.e. are able to select legal standards on which to base their judgments and to decide how to apply such standards to the case at hand. This does not mean, of course, that administrative court judges can do what they please. But, within some well-established boundaries, they can select from among various rules and principles those legal standards which apply to the case before them, interpret their meaning, and assess their importance. We aim to understand this process

In this paper I outline a comprehensive theory of legal interpretation based on an assumption that legal text, understood as the aggregate of texts of all legal acts in force at a particular time and place, describes one rational and coherent possible world. The picture of this possible world is decoded from the text by interpreters and serves as a holistic model to which the real world is adjusted when the law is applied. From the above premise I will limit myself to drawing two conclusions for how legal interpretation should be carried out. First, I argue that the possible world described by the legal text has to be ‘accessible’ from the real world, i.e. it has to be feasible to transform the actual world into the described one. Were it otherwise, the possible world could not serve as a model for adjustment. The accessibility requirement imposes obligations on the interpreters to secure the rationality of the possible world decoded from the text, amongst other to secure that the description of this world is not contradictory and – as a consequence – the law of excluded middle is obeyed in the possible world described by the legal text. Secondly, I argue for the inevitability of interpretative discretion arising from the requirement to decode a sufficiently ‘saturated’ picture of the possible world., i.e. possessing enough properties to resemble the actual world. As texts have a limited number of sentences and worlds have an unlimited number of properties, interpreters have to supplement the picture of a possible world to achieve its coherence. This involves the inclusion of some additional, non-predetermined features that integrate with the properties of the world predefined by the legal text. This process of saturation consists of filling in so-called ‘places of indeterminacy’ (Roman Ingarden) with content implicated by other features of the possible world. I also argue that the discretion resulting from the necessity of filling in the places of indeterminacy is justified by the requirement of fulfilling the intention of the lawmaker to make the possible world described by the legal text real. The theory presented here is based on contemporary theories of discourse representation and so-called ‘text-world theory’ by J. Gavins. Phenomenalism and causal (historical) theories of reference provide its philosophical background.

ABSTRACTConventionalism once seemed an attractive way to justify the viability of the positivistic social thesis. Subsequent criticism, however, has significantly lessened its attractiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis.Three arguments are proffered to support this contention. First, Millikan's conventionalism is not vulnerable to the major criticism leveled at conventionalism, viz its compliance-dependence, as this is not its defining feature. Second, Millikanian conventionalism retains conventionalism's ability to explain how law emerges from social practices while avoiding the main disadvantage of Lewisian conventionalism, viz its inability to explain the normativity and contestability of law. Third, Millikan's conventionalism can more effectively repel Dworkin's and Greenberg's assaults on legal positivism than its Lewisian counterpart.To the memory of Maurice O'Brien.

Given far-reaching changes in the legal systems of East Central Europe since the mid-1990s, one might expect administrative court judges to have modified the way in which they decide cases, in particular by embracing less formalistic adjudication strategies. Relying on an original dataset of over one thousand business-related cases from the Czech Republic, Hungary and Poland, this article shows that – despite some variation across countries and time – judges have largely failed to respond to the incentives contained in the new constitutional frameworks. They continue to adopt the most-locally-applicable-rule approach and are reluctant to apply general principles of law or to rely on Dworkinian ‘policies’ in deciding hard cases. The analysis links these weak institutional effects to the role of constitutional courts, case overload and educational legacies.

Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation.

The problem of the individuation of laws, identified by Bentham, is dismissed as irrelevant to legal philosophy by some commentators. This paper presents individuation as crucial for understanding the cognitive processes underlying legal interpretation. It draws on the work of Maciej Zieliński and Teun van Dijk to show that legal interpretation is based on deriving legal rules qua semantic macrostructures from a legal text treated as a complex discourse. The Zieliński/van Dijk model also lends theoretical support to the interpretation-construction distinction by explaining, in linguistic terms, the processes that take place during construction.

This article offers a critical assessment of a legal method of applying law traditionally referred to as formalism. By and large, formalism rigidly follows the letter of the law, even if the outcome is unjust or at odds with common sense. Although this is widely believed to be in line with the idea of positive law, i.e. that instituted by human beings, it is possible to challenge formalism by manifesting its incompatibility with core ideas of legal positivism and the rule of law. At the same time, an alternative method for the application of law is available, one that does justice to those core ideas. This non-formalistic method is based on sematic analysis of legal text. Similarly to formalism, it effectively secures the predictability and stability of law while limiting the influence of an individual’s preferences on the outcome of the interpretive process.