PART I: CONTEXTUALISATION AND THEORETICAL FRAMEWORK THEORETICAL FRAMEWORK
ORAL PROCEDURE [Hearing; Report for the hearing]
2) Report for the hearing: The report for hearing summarises the facts, arguments and pleas, also in the language of the case and in French
3.3. How to address vagueness in the law
From a positivist perspective, in interpreting statutory texts the judge should not seek what may be meant by a legal text but what the text actually says. The intent of the legislature is not a legitimate object of statutory interpretation (Scalia 1997: 16-18). Underlying this is the assumption that ‘words do have a limited range of meaning and no interpretation that goes beyond that range is permissible’ (Scalia 1997: 24).
This has an impact on how to perceive indeterminacy.126 It would imply that it poses no real problem, as it will usually be possible to find out the original and unambiguous meaning of the statute (Scalia 1997: 45). So in this approach semantic indeterminacy doe not usually give rise to legal indeterminacy, as it may be solved by looking thoroughly for the original
126 Endicott claims that there are two approaches to vagueness: one approach accepts the indeterminacy claims and the other approach rejects indeterminacy (2000:58).
97 meaning (i.e. the meaning contained in the text) stated in the normative text. From this perspective, vagueness can be overcome in concrete situations by reasonable decisions taken by judges on the basis of the formulation of the text in question. In German the term Wortlautgrenze, the limit imposed by the wording, expresses the idea that one can foresee the legal consequences of a law only by looking at the formulation (Schilling 2010:53).
In this respect, textualism can be associated with a more positivistic approach. Scalia, however, argues that textualism is not wooden. He draws a very important difference between textualism and so called strict constructivism. ‘A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means’ (Scalia 1997:23). It is worth mentioning the example he provided to illustrate this difference. The statute at issue provided for an increased jail term if, ‘during and in relation to ... [a] drug trafficking crime,’ the defendant ‘uses ... a firearm.’ The defendant in this case had sought to purchase a quantity of cocaine; and what he had offered to give in exchange for the cocaine was an unloaded firearm, which he showed to the drug-seller. The Court held that the defendant was subject to the increased penalty, because he had ‘used a firearm during and in relation to a drug trafficking crime.’ Scalia expressed his clear disagreement with this decision and he contends that a proper textualist would surely have voted against it because the phrase ‘uses a gun’ connoted use of a gun for what guns are normally used for, that is, as a weapon. In this way, the author claims that a good textualist is neither a literalist nor a nihilist (Scalia 1997:24).127 However, he does affirm that words have a limited range of meaning.
On the contrary, for interpretivists, such as the German legal scholars Christensen and Sokolowski (2002), the idea of words having only a limited semantic range is not valid: every word may change its meaning. ‘Indeterminacy is the prime feature in the language of law’
(Wagner 2005:174). Vagueness is a general characteristic of language (Bathia et al. 2005:16).
Consequently, saying that words can have specific, bounded meanings is not quite so simple in law, since if this were the case, laws would be too rigid and only one single meaning would exist (A. Wagner 2005:176).
All textual elements are inherently vague. Consequently, there is no such thing as the original meaning of words in a statute, for the text bears no meaning in itself (Christensen &
Sokolowski 2002 69-70). This means that the judge cannot turn to, for example, a dictionary
127 See Greenawalt (2013:43–58) for further discussion on textualism.
98 in order to find the correct solution for a legal problem. Instead, the judge must present a reasonable and convincing argumentation for his decision and lay down the exact grounds for this (Bhatia et al. 2005:15). Interpretivists also suggest overcoming vagueness by reasonable decisions, but allow a much wider variety of factors influencing the decision, as they rule out text formulation as a possible guideline.
3.3.1. Translators vis-à-vis vagueness and ambiguity
Sometimes ambiguity is deliberate. In some circumstances, reaching agreement on the terms of a certain instrument may have necessitated the use of constructive ambiguity. Negotiators sometimes leave unresolved particular issues by agreeing on language that does not resolve the issue and is capable of more than one interpretation. Constructive ambiguity can serve as a placeholder marking an area where negotiators accept that it may be appropriate to agree on disciplines but where further negotiation is necessary before those disciplines can be specified.128
Translators need to transmit the same degree of ambiguity (Biel 2007:158; Prieto Ramos 2011:208; Prieto Ramos 2014:10); they need to maintain, where possible, ‘the multi-valence of ambiguous formulations’ (Guggeis 2006:115). When faced with a problem, they need to study the blurry parts of texts. They need to take into account the effects that each way of interpreting a certain provision can have. They ‘should be able to foresee how the translation will be interpreted and applied by the receivers’ (Šarčević 2010:24).
In this respect, contrary to what some authors think,129 translators do interpret: le traducteur est condamné a l’interprétation (Gawron-Zaborska 2010:184). In order to be able to find the intended meaning, they have to interpret the text. They should, of course, respect the skopos of the text and the macrotextual factors (Prieto Ramos 2011: 208). Needless to say, they have to be objective and follow the same hermeneutic rules that the CJEU would follow.
They must grasp all the shades of meaning in order to reformulate text in the most reliable way possible. In other words, they need to scrutinise the text not only as linguists, but also through the prism of legal hermeneutics (Prieto Ramos 2014:10) In this sense, Engberg notes that interpreting texts is predominantly ‘a quest for the contextual meaning of the texts in order to discover what consequences the text has in the legal situation in which the interpretation is carried out’ (Engberg 2002:375). The translator may find him or herself in the
128 TN/DS/W/82/Add.1, 25 October 2005.
129 See, for example, Felici (2010).
99 middle of a ‘subjective struggle’: which of the more apparent meanings should I choose?
(Chromá 2012:120).
As a consequence, the translator needs a well-developed awareness of the communicative indicators of changes in the meaning of specific words, if word meaning is a dynamic entity subject to change in connection with the argumentative battle concerning meaning (Engberg 2002:382).
The work of the legal translator necessarily shares features with the work of the interpreting legal specialist, for in order to create such a target language text, the translator must be able to evaluate the different possible legal interpretations laid down in the legal text. He must be able to determine not only one of the possible contextual meanings of a text, but the relevant legal meaning of the text, i.e. the meaning that a legal practitioner would reach when reading the text (Engberg 2002:376).