On the Standardization of Chinese Legislative Language 9819926327, 9789819926329

Table of contents :
Preface
Contents
About the Authors
1 Introduction
1.1 Research at Home and Abroad
1.2 Objectives, Content and Significances
1.2.1 Concept and Essence of Legislative Language
1.2.2 An Empirical Analysis of Violation of Norms in China’s Legislative Text Translation
1.2.3 Adverse Effects of Violation of Norms in Legislative Text Translation
1.2.4 Causes of Violation of Norms in Legislative Text Translation and Its Countermeasures
1.2.5 Ways to Correct the Violation of Norms in China’s Legislative Texts
Notes
References
2 An Overview of Legal Language
2.1 Law and Language
2.1.1 Language Constructs the Meaning of Law, and Is the Ontological World of Law
2.1.2 It Is the Mission of Legal Professionals to Pursue the Meaning of Law Through Language
2.2 Legal Language
2.3 Characteristics of Legal Language
2.3.1 Language Style
2.3.2 Legal Glossary
2.3.3 Lexical Classification
2.3.4 Semantics
References
3 Research on Legal Language
3.1 The Linguistic Turn of Western Jurisprudence
3.2 Evolution of Legal Language Research Methods
3.2.1 The Rhetoric Tradition Stage
3.2.2 The Positivism Research Stage
3.2.3 The Sociological Research Stage
3.3 Forensic Linguistics and Its Research
3.3.1 Research on Anglo-American Legal Linguistics
3.3.2 An Overview of the Research of Forensic Linguistics in China
3.4 Conclusion
Note
References
4 Legislative Language
4.1 Legislation and Legislative Language
4.1.1 Law
4.1.2 Regulations
4.1.3 Rules
4.2 Stylistic Features of Legislative Language
4.2.1 The Lexical Features of Legislative Language
4.2.2 The Syntactical Features of Legislative Language
4.2.3 The Text Features of Legislative Language
References
5 Fuzziness and Legislative Language
5.1 Fuzziness of Legislative Language
5.1.1 Fuzziness of Language
5.2 Language Types Related to the Fuzziness
5.2.1 Vagueness
5.2.2 Ambiguity
5.2.3 Generality
5.2.4 Uncertainty
5.3 Features of Fuzziness in Legislative Language
5.3.1 Uncertainty
5.3.2 Relativity
5.3.3 Obscure Boundary Division
5.4 Classification of Fuzziness of Legislative Language
5.4.1 Division Upon Context Changes
5.4.2 Division Upon Expression Functions
5.4.3 Division Upon Word Types
5.5 Conclusion
References
6 Reasons for the Fuzziness of Legislative Language
6.1 Subjective Reason of the Legislative Subject
6.1.1 Cognitive Limitations of Legislative Subject
6.1.2 Intentional Fuzziness of Legislative Subject
6.2 Complexity of the Facts of Legal Relations
6.3 Limitations of Language Expression System
6.3.1 Non-Existence of One-to-One Correspondence Between Language and the Objective World
6.3.2 The Polysemy of Language
6.3.3 The Flexibility of Language Meaning
6.4 Characteristics of Chinese Characters
6.5 Influence of National Traditional Culture
6.6 Requirements of China’s Fundamental Reality
6.7 Conclusion
References
7 The Positive Function of Fuzzy Legislative Language and Its Realization
7.1 Positive Function of Fuzzy Legislative Language
7.1.1 Beneficial to Realize the Integration of Stability and Changeability of Law
7.1.2 Beneficial to Realize the Integration of Openness and Flexibility of Law
7.1.3 Beneficial to Realize the Integration of the Finiteness of Language and the Infinity of Objective Things
7.2 Value Realization of Fuzzy Legislative Language
7.2.1 Beneficial to Realize the Universality and Adaptability of Law
7.2.2 Reserve Space for the Application and Development of Law
7.3 Conclusion
References
8 Fuzziness and Violation of Norms in Chinese Legislative Language
8.1 Ontology of Violation of Norms in Legislative Language in China
8.1.1 Grammatical Errors
8.1.2 Incomplete Sentence Components
8.1.3 Misuse of Function Words
8.1.4 Semantic Ambiguity
8.1.5 Inappropriate Language Logic
8.2 Epistemology of Violation of Norms in Legislative Language in China
8.2.1 Lag of Legislative Technology Theory Research
8.2.2 Absence of Special Legislative Drafting Body
8.2.3 Absence of Legislative Language Review Procedures
8.2.4 Influence of Language Culture and the Weak Consciousness of Language Norms
8.3 Axiology of Violation of Norms in Legislative Language in China
8.3.1 Adverse Effects and Negative Consequences of Violation of Norms in Legislative Language
8.3.2 Possible Methods to Revise Violation of Norms in Legislative Language in China
8.3.3 To Make Greater Efforts to Build Up a Standard Legislative Language Corpus
8.4 Conclusion
References
9 Thoughts on Standardization of Chinese Legislative Language from the Perspective of Sociology of Law
9.1 Introduction
9.2 The Legal Sociological Reasons for Fuzziness of Legislative Language
9.3 Western Explorations on Eliminating the Negative Effects of Fuzziness of Legal Language
9.4 Standardization of Chinese Legislative Language
9.4.1 Current Situation of Chinese Legislative Language Development
9.4.2 Suggestions on Standardization of Chinese Legislative Language and Its Translation
9.5 Conclusion
References

Citation preview

Xiaobo Dong Yafang Zhang

On the Standardization of Chinese Legislative Language

On the Standardization of Chinese Legislative Language

Xiaobo Dong · Yafang Zhang

On the Standardization of Chinese Legislative Language

Xiaobo Dong School of Foreign Languages and Cultures and Institute of China’s Modernization of Rule of Law Nanjing Normal University Nanjing, China

Yafang Zhang School of Foreign Languages and Cultures Nanjing Normal University Nanjing, Jiangsu, China

This book was supported by the National Social Science Fund of China Key Program of 2020– “Research on Chinese Rule-of-law Terminology with Chinese Characteristics Translation and International Rule-of-law Discourse Ability Construction (20AYY008)”. ISBN 978-981-99-2632-9 ISBN 978-981-99-2633-6 (eBook) https://doi.org/10.1007/978-981-99-2633-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Preface

This book is the first English monograph that focuses on the non-standardization phenomenon in the Chinese legislative language, which is an important but underestimated problem that would cause significant adverse effects. By integrating different research angles and methods of philosophy of law, sociology of law, applied linguistics and legal translation, this book presents a groundbreaking approach to the nonstandardization phenomenon in Chinese legislative language, unveils the underlying causes and adverse effects thereof, and provides potential principles, strategies, and methods to be complied with in the standardization of Chinese legislative language. It firstly gives an overview of legal language, sorting out certain major concepts and theoretical development thereof; secondly talks about the fuzziness of language, addressing both the active and negative influences thereof on the legislation; thirdly approaches the non-standardization phenomenon in Chinese legislative language from the perspective of philosophy of law; and finally offers a comprehensive studies on the standardization of Chinese legislative language, offering possible solutions to address the above-mentioned problems and promote the standardized development of law making. This book can facilitate the legal practitioners, jurists, law students, legal translators as well as the non-experts to get a better understanding of the mechanism and process of legislation and improve their skills and capacities in apprehending and translating Chinese laws and regulations. During the writing of this book, we have received unselfish assistance and strong support from our research team. They have collected and sorted out so many valuable research materials that laid a solid foundation for this book. Therefore, we’d like to direct our deepest gratitude to Luo Yiran, Bian Jun, Huang Rongqi, Wang Yiting, Zeng Mingyue, Zhuang Longfei for their altruistic dedication and close cooperation. Nanjing, China

Xiaobo Dong Yafang Zhang

v

Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Research at Home and Abroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Objectives, Content and Significances . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.1 Concept and Essence of Legislative Language . . . . . . . . . . . . 1.2.2 An Empirical Analysis of Violation of Norms in China’s Legislative Text Translation . . . . . . . . . . . . . . . . . . 1.2.3 Adverse Effects of Violation of Norms in Legislative Text Translation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.4 Causes of Violation of Norms in Legislative Text Translation and Its Countermeasures . . . . . . . . . . . . . . . . . . . . 1.2.5 Ways to Correct the Violation of Norms in China’s Legislative Texts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 7 8 8 9 9 9 12

2 An Overview of Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Law and Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 Language Constructs the Meaning of Law, and Is the Ontological World of Law . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 It Is the Mission of Legal Professionals to Pursue the Meaning of Law Through Language . . . . . . . . . . . . . . . . . 2.2 Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Characteristics of Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Language Style . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Legal Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.3 Lexical Classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.4 Semantics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13 14

3 Research on Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 The Linguistic Turn of Western Jurisprudence . . . . . . . . . . . . . . . . . . 3.2 Evolution of Legal Language Research Methods . . . . . . . . . . . . . . . . 3.2.1 The Rhetoric Tradition Stage . . . . . . . . . . . . . . . . . . . . . . . . . .

27 27 32 33

14 16 17 19 19 23 24 24 26

vii

viii

Contents

3.2.2 The Positivism Research Stage . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 The Sociological Research Stage . . . . . . . . . . . . . . . . . . . . . . . 3.3 Forensic Linguistics and Its Research . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Research on Anglo-American Legal Linguistics . . . . . . . . . . 3.3.2 An Overview of the Research of Forensic Linguistics in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33 34 37 37

4 Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Legislation and Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.3 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Stylistic Features of Legislative Language . . . . . . . . . . . . . . . . . . . . . . 4.2.1 The Lexical Features of Legislative Language . . . . . . . . . . . . 4.2.2 The Syntactical Features of Legislative Language . . . . . . . . . 4.2.3 The Text Features of Legislative Language . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49 49 50 50 51 53 55 57 60 62

5 Fuzziness and Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Fuzziness of Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Fuzziness of Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Language Types Related to the Fuzziness . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Vagueness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Ambiguity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Generality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 Uncertainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Features of Fuzziness in Legislative Language . . . . . . . . . . . . . . . . . . 5.3.1 Uncertainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Relativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Obscure Boundary Division . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Classification of Fuzziness of Legislative Language . . . . . . . . . . . . . 5.4.1 Division Upon Context Changes . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Division Upon Expression Functions . . . . . . . . . . . . . . . . . . . . 5.4.3 Division Upon Word Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

63 63 64 69 69 71 72 73 74 75 76 76 78 78 79 81 84 85

6 Reasons for the Fuzziness of Legislative Language . . . . . . . . . . . . . . . . . 6.1 Subjective Reason of the Legislative Subject . . . . . . . . . . . . . . . . . . . 6.1.1 Cognitive Limitations of Legislative Subject . . . . . . . . . . . . . 6.1.2 Intentional Fuzziness of Legislative Subject . . . . . . . . . . . . . . 6.2 Complexity of the Facts of Legal Relations . . . . . . . . . . . . . . . . . . . . . 6.3 Limitations of Language Expression System . . . . . . . . . . . . . . . . . . .

87 88 88 90 93 94

43 45 46

Contents

6.3.1 Non-Existence of One-to-One Correspondence Between Language and the Objective World . . . . . . . . . . . . . 6.3.2 The Polysemy of Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.3 The Flexibility of Language Meaning . . . . . . . . . . . . . . . . . . . 6.4 Characteristics of Chinese Characters . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Influence of National Traditional Culture . . . . . . . . . . . . . . . . . . . . . . 6.6 Requirements of China’s Fundamental Reality . . . . . . . . . . . . . . . . . . 6.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Positive Function of Fuzzy Legislative Language and Its Realization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Positive Function of Fuzzy Legislative Language . . . . . . . . . . . . . . . . 7.1.1 Beneficial to Realize the Integration of Stability and Changeability of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.2 Beneficial to Realize the Integration of Openness and Flexibility of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.3 Beneficial to Realize the Integration of the Finiteness of Language and the Infinity of Objective Things . . . . . . . . . 7.2 Value Realization of Fuzzy Legislative Language . . . . . . . . . . . . . . . 7.2.1 Beneficial to Realize the Universality and Adaptability of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.2 Reserve Space for the Application and Development of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Fuzziness and Violation of Norms in Chinese Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Ontology of Violation of Norms in Legislative Language in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.1 Grammatical Errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.2 Incomplete Sentence Components . . . . . . . . . . . . . . . . . . . . . . 8.1.3 Misuse of Function Words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.4 Semantic Ambiguity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.5 Inappropriate Language Logic . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Epistemology of Violation of Norms in Legislative Language in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 Lag of Legislative Technology Theory Research . . . . . . . . . . 8.2.2 Absence of Special Legislative Drafting Body . . . . . . . . . . . . 8.2.3 Absence of Legislative Language Review Procedures . . . . . 8.2.4 Influence of Language Culture and the Weak Consciousness of Language Norms . . . . . . . . . . . . . . . . . . . . . 8.3 Axiology of Violation of Norms in Legislative Language in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ix

94 96 97 98 100 103 104 104 107 108 108 110 110 112 112 114 117 118 119 119 120 124 128 130 133 138 139 140 140 141 142

x

Contents

8.3.1 Adverse Effects and Negative Consequences of Violation of Norms in Legislative Language . . . . . . . . . . . 8.3.2 Possible Methods to Revise Violation of Norms in Legislative Language in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.3 To Make Greater Efforts to Build Up a Standard Legislative Language Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Thoughts on Standardization of Chinese Legislative Language from the Perspective of Sociology of Law . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 The Legal Sociological Reasons for Fuzziness of Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Western Explorations on Eliminating the Negative Effects of Fuzziness of Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Standardization of Chinese Legislative Language . . . . . . . . . . . . . . . 9.4.1 Current Situation of Chinese Legislative Language Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4.2 Suggestions on Standardization of Chinese Legislative Language and Its Translation . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

142

144 146 146 147 149 149 150 153 160 160 162 169 171

About the Authors

Xiaobo Dong is Professor at School of Foreign Languages and Cultures of Nanjing Normal University and Specially Invited Researcher at Institute of China’s Modernization of Rule of Law. He is also the Director and Chief Expert of Jiangsu International Rule-of-law Research Center, as well as the Chief Expert on major projects of the National Social Science Fund of China. His research interests include history of Sino-west civilization exchanges, legal linguistics, legal translation, language strategy and planning, cross-cultural communication. In recent years, he has published over 150 interdisciplinary academic papers in prominent journals and more than 70 books, including academic monographs, edited volumes, and translations. Yafang Zhang is Ph.D. Candidate at School of Foreign Languages and Cultures of Nanjing Normal University and Researcher at Jiangsu International Rule of law Research Center. Her research interests include Sino-west civilization exchanges, legal linguistics, translation of Chinese legal classics, and language planning.

xi

Chapter 1

Introduction

After the Second World War, Lord Alfred Denning, Britain’s greatest legal reformer, a world-renowned jurist and former President of the English Court of Appeal, looking back on his legal career, which spanned more than half a century, said with deep feeling: “To succeed in the profession of the law, you must seek to cultivate command of language (Denning 1985)”. Another famous English jurist, Lord Mansfield, an eminent judge, once indicated that most disputes in the world are caused by words (Chen 1987). In terms of phylogenetics, language and law may emerge simultaneously. In ancient times, many people lived together and needed both the tools to communicate and the rules to live together. The former was language and the latter was law (“unwritten law”, or “customary law”). In the era when there was no character, “law” was exclusively agreed upon and transmitted by language. After the birth of the character, it became a tool for expressing law. Law was once seen as a profession of words, and Peter M. Tiersma, vice president of the International Association of Legal Linguists and professor of law in the United States, says in his book Legal Language: “Few professions are as dependent upon language.” “Our law is a law of words.” “Morality or custom may be embedded in human behavior, but law-virtually by definition-comes into being through language” (Tiersma 1999). According to A. Kaufmann, professor at the University of Munich, and N. McCormick, the successor to the new analytic school of law: “the law is simply a matter of linguistics” (Shu 1995). Legal language is the language specifically used by the common language in legal activities such as legislation, judiciary and interpretation of legal science. The standardization of legal language has traditionally been valued by legislators, law enforcers and the whole people. In the early Roman Empire, jurists attached great importance to the elaboration and application of legal language when assisting the Roman Empire in legislation, compiling legal works and answering legal questions. At every step of Roman legal process, great attention was paid to the accuracy of the form of linguistic expression. In the course of a lawsuit, if one party is not accurate, it’s possible to lose the case. Ancient Chinese philosophers also attached great importance to legal language. In the Analects of Confucius, it is written that the © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language, https://doi.org/10.1007/978-981-99-2633-6_1

1

2

1 Introduction

Zheng State drafted the “order (ming 命)”: “The order drew up by the Zheng State was drafted by Pi Chen (a senior official), discussed by You Ji (a senior official), revised by Zi Yu (a diplomat), and embellished by Zi Chan (a senior official living in Dongli).” The “order” refers to the order of the emperor, that is, the law of that time. The creation of “order” should go through four stages including drafting, discussion, revise and embellishment, to make sure that the words are fully considered. Legislation is one of the most important legal activities. Legislative language, used in the process of making law, is an important part and the core of legal language. The merits of the law depend directly on the merits of the language in which it is expressed and transmitted (He 2008). As the official language of legal activities, legislative language should convey the intention and legislative goals of the legislator on the one hand, and inform citizens and relevant institutions of the applicable scope of the law on the other. Thus, legislative language must be accurate, concise, and neutral. Since the reform and opening up in 1978, China’s people’s congresses and governments at all levels have formulated ambitious legislative plans and effectively implemented them, making remarkable achievements. A socialist legal system with Chinese characteristics has been formed. However, the rapid advancement of ambitious legislative plans and the excessive pursuit of legislative speed to a certain extent have led to the widespread problem of non-standard language in Chinese legislative texts especially in some local legislative texts. As is known, the purpose of law is to “settle disputes”. It’s generally believed that law should be authoritative and exclude multiple meanings and ambiguities. Accuracy is the soul of legislative language, and one of the main legislative principles that legislators try to pursue. Aristotle, the first ancient Greek scholar to advocate the rule of law, pointed out in his rebuttal to the theory of rule by man that law has stability and clarity (Kelly 2002). Aristotle said, “The rule of law should contain two meanings: the established law and the universal obedience, and the legal meaning which everyone obeys should be a well-made law by itself” (Aristotle 1965). In the process of building a society governed by man to a society with rule of law in China, people have placed great expectations on law. An increasing number of people realize that the certainty of law is connected with the rule of law while the uncertainty of law is contrary to the rule of law, which is a manifestation of the unsound rule of law. Chinese famous criminal law scholar Professor Chen Xingliang once pointed out that the “aggravating circumstances” can be seen everywhere in China’s criminal law, but with extremely ambiguous connotation and extension. It can be the boundary between crime and non-crime, but also can be the boundary between felony and misdemeanor, the exact meaning of what completely lies in the understanding of the judicial staff, and the average citizen has no way about it (Chen 1992). He regarded such provisions as a sign of poor legislation. Professor Xu Guodong, a civil law expert, refers to all those “situations that make it difficult for the law to be a clear guide to the conduct of the parties” as the fuzziness of the law. He believes that, in general, fuzzy language in legislation undermines the clarity of law (Xu 1992). Some scholars even propose to prohibit the use of fuzzy language in legislative language (Zhou 2003). However, a large number of domestic and foreign legal language studies show that the use of fuzzy language is unavoidable in the formulation of law due to various factors. According to some scholars, more

1.1 Research at Home and Abroad

3

than 100 articles of the Criminal Law of the People’s Republic of China (1979) used fuzzy words from the general provisions to the specific provisions, accounting for more than 50% of all articles (Wang 1997). Of course, a perfect state of the rule of law must ensure the universal and effective implementation of law. However, the large number of fuzzy words in the legislative language has led many people to have the wrong idea that “the law is flexible and the judge has the final say on conviction and sentence”, which is extremely detrimental to the construction of the rule of law in China. Can fuzzy words be used in legislative language? Is it a legislative oversight to use a lot of fuzzy words in the legislative language? Is the fuzziness of the legislative language produced by fuzzy words a sign of non-standard legislation? What is the manifestation of violation of norms in legislative language? What are the root causes? the detriments? and how to improve violation of norms in legislative texts? …These are the problems and research focus of this book.

1.1 Research at Home and Abroad As we all know, whether speaking or writing, people must express the meaning accurately, and to do this, language must be grammatical and logical. If this is true of speech and writing, it is even more important for the law, which is a guideline for people’s behavior, to be grammatical, logical, rigorous and standardized. The history of legal language goes from zero to one, with a complete transformation from general to specific, fuzzy to accurate, and random to normative. It’s reasonable to say that the level of legal language reflects the level of the rule of law in a country or an era. In ancient Greece, which advocated the rule of law and opposed the rule of man at the earliest, people emphasized the “stability and clarity” of law (or legal language). In France, the French Civil Code, published in 1804, also strived for lucid language with a rigorous stylistic structure. The German Civil Code, drafted in 1874, was criticized and attacked by German jurists such as Otto Gercke and Hans Thonle for its lack of concise and clear language and strict expression. It was against this background that the study of legislative techniques and legislative language in the Western world began. An early European treatise on legislative language was George Cooder’s On Legislative Expression in 1843, but after that, from the middle and lower nineteenth century to the first half of the twentieth century, there are not many works on this subject. Since legal linguistics became an independent discipline in Europe and America, legislative language, as an important subject, has been studied extensively and deeply. At present, foreign research on legislative language mainly focuses on the following aspects: legislative drafting issues, such as Reed Diekerson’s Legislative Drafting; general theory of legislative language or legal language, such as Mellinkoff’s The Language of the Law, etc.; the simplicity of legislative language or legal language; and other issues of legislative language or legal language, such as Graeme J. Neale’s Legal Language in Culture; and so on.

4

1 Introduction

According to Liu Suzhen’s research (2008), the standardization of Chinese ancient legal language in China is premised on the standardization of language style. To discuss the standardization of ancient legal language, we should first clarify the standard and principle of normalization. Mr. He Jiuying put forward three criteria for the standardization of ancient legal language: yayan, bidai and putong. “Yayan” means the common language of the time rather than any dialect should be used as the standard; “Bidai” means the socio-linguistic facts of the time rather than the descendants must be used as the corpus; “Putong” means specialized terms or immature neologisms must be used sparingly. These three criteria are also applicable to the standardization of legal language today. Professor Liu believes that, from the existing data we have, the ancient judicial texts were basically written in the common written language at that time and few were in dialect, in line with the standard requirement of “yayan”; the objects discussed by us are all recognized by the academic community as the materials of that time and generation, which meets the standard requirement of “bidai”; although the texts we discuss involve a lot of legal technical terms, generally they belong to the common language materials at that time, besides, these terms are entered into the category of “yayan” and without new words having not been agreed upon, which meets the standard requirement of “putong” (Liu 2008). In general, the violation of norms in China’s legislative language are mainly reflected in two aspects. On one hand, it is the non-standard use of language, mainly manifested by grammatical errors, semantic divergence, logic inconsistency, classification confusion, stylistic dissonance, mixing and crossing, etc. In recent years, the non-standard use of language has attracted the attention of the academic and legislative communities. Before the promulgation of new laws and regulations, the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (hereinafter referred to as “the NPC Legislative Affairs Commission”) and law-making departments at all levels will consult with relevant experts for help in revising and checking the language. On the other hand, it is the misunderstanding and misuse of fuzzy words of the law, and the improper degree of fuzziness, that led to the non-standard legislative language. The study of the standardization of legislative language from the perspective of fuzziness began in the early twentieth century. In 1965, Zadeh, an American cyberneticist, noticed the existence of fuzziness in the conceptual category of human beings and the semantic category of natural language, and pointed out that the fuzziness of language is an essential feature of natural language. As a part of natural language, legal language also inevitably has fuzziness. Regarding the fuzziness of legislative language, the author has discussed, through a series of papers, the causes of fuzzy phenomenon in legal language, the relationship between fuzziness and accuracy, the application of fuzzy language, the elimination of fuzziness in legal language and other related issues. The author believes that, based on the modern linguistic theory, the fuzzy words in legislative language refer to certain fuzzy and abstract words that lack clear referable “word object”. Because of such lack of the corresponding “word object”, the legislative language has the characteristics of fuzziness and abstraction. For example, when we use the linguistic symbol “hand”, the symbol

1.1 Research at Home and Abroad

5

objectively represents a clear “word object”. However, when we talk about “fairness” and “justice”, there is no clearly referable “word object” like “hand”. When defining such words, it is bound to rely on other fuzzy and abstract concepts, and these words themselves need to be interpreted semantically, which makes the legislative language fuzzier and more abstract. But fuzziness is an important way for people to know the world, different from ambiguity, which often refers to the negative results caused by improper use of language and should be avoided as much as possible. The fuzziness in legislative language shows uncertainty in effects, either negative or positive ones. There are following reasons why fuzzy words should be used in legislative language: requirements of the generality of legal norms; constraints of the complexity of legal phenomena and the limitations of human cognition; restrictions on the defects of language itself; influence of the traditional national culture; need of fundamental realities of the country; etc. The seemingly flawed fuzziness of legislative language is necessary to the law, with its openness and flexibility breaking the logical selfsufficiency of legal system. Where legal fuzziness appears is where the value needs to be supplemented, and judge is definitely the one to supplement the value. The fuzziness of the legislative language provides the law with a certain openness. With the development of society, this openness enables judges, when facing the ever-changing social reality, to make “minor repairs” on the premise of maintaining the stability of the law. By supplementing the connotation of fuzzy language, new contents and new values adapted to the needs of social development are absorbed into the law. The law has thus developed quietly, and the dilemma of the law, to change or not to change, has been balanced to a certain extent. While emphasizing the irreplaceable role of fuzzy words and expressions in the field of legal activities, we must realize that just as precise words and expressions are not universally applicable, the use of fuzzy words and expressions should also pay attention to the degree of fuzziness. Improper fuzziness will lead to non-standard legislative language. The degree of fuzziness is the range (a, b) of the core information that the fuzzy word intends to convey. Here “a” is called the lower bound and “b” is called the upper bound. If the fuzziness of a word goes beyond this range, it is called exceeding the fuzziness threshold. In the case of legal language, if the fuzziness of words interferes with the identification, conviction, sentencing, verdict, and execution of a suspect, it is over the fuzziness, which must be strictly prohibited. For example, Article 294 of the Criminal Law of the People’s Republic of China (1997) stipulates that: “Whoever organizes, leads and actively participates in an organization of criminal syndicate which conducts an organized activities of offences or crimes by violence, threat or other means, plays the tyrant in a locality, perpetrates all kinds of evils, bullies and oppresses or cruelly injures or kills common people, and seriously undermines the economic and social order shall be sentenced to …” The underlined text here is to define organizations of criminal syndicate, but the wording of some acts is too fuzzy and difficult to grasp in implementation, such as “perpetrates all kinds of evils” is very easy to cause deviations in understanding and application in practice. The research on standardization of legislative language also needs to be grasped from a sociological perspective, since sociality is of dual importance for legal language. First of all, language itself has the character of sociality; as the carrier

6

1 Introduction

of thoughts and cultural traditions, it is an important component and symbol of culture. Only by putting language into a specific ideological and cultural tradition, combining it with the cognitive system, evaluation system, mentality system and behavior pattern system that constitute the overall social culture, and conducting a multi-dimensional and systematic analysis of it, can we truly understand the connotation and meaning of legal language. Secondly, law is the product of class society and is used to regulate social activities and behavior. It has been branded by society since its birth. Therefore, ignoring social factors when studying legal language cannot fully reveal the characteristics of legal language. The standardization of legislative language is a problem that urgently needs to be solved in China’s current legislative practice. Therefore, to study the standardization of legislative language from the perspective of fuzziness theory, we must pay attention to the socio-cultural background in which fuzzy words are created, the social support factors and restriction mechanism in the formation process, and the positive and negative effects on the rule of law and the construction of a harmonious society. In other words, it is necessary to explore the role of fuzzy words on legislation quality and language standardization across disciplines (linguistics, law, sociology, philosophy, etc.) and from multiple perspectives. With the deepening of China’s reform and opening up as well as the promotion of the socialist rule of law, the standardization of legal language has attracted more and more attention from the Party, the government, and the society from all walks of life. On October 25, 2006, the NPC Legislative Affairs Commission held a special symposium in Beijing on “Issues to be studied in the standardization of legislative language” to consult linguists on the problems in legislative language. Meanwhile, on July 18, 2007, the NPC Legislative Affairs Commission also established an Expert Advisory Committee on the Standardization of Legislative Language and hired linguists as its members. So far, it has become the common practice to ask two to three members of the advisory committee to review a draft bill before it is promulgated and implemented in China. However, we should also be soberly aware that the current research on the standardization of legal language has just started. Some issues haven’t been studied well enough and views on certain language phenomena are very inconsistent, far from meeting the needs.1 On May 17–18, 2009, the First National Academic Conference on Legal Language Standardization was held in Beijing College of Politics and Law. The conference concluded that the research on the standardization of legal language requires the joint cooperation of the communities of legal profession, jurisprudence, linguistics, legal linguistics, philosophy and logic. The level of legal language reflects the level of legal work in a country or an era. It is urgent to figure out solutions to violation of norms in legal language. Some expert research pointed out that, dozens of language problems exist in our Criminal Law; hundreds of language problems have been found in the exposure draft of the Real Right Law of the People’s Republic of China (Draft) (2005) (hereinafter referred to as “Real Right Law (Draft)”). Studying the standardization of legal language, setting standards and implementing them in practice are highly technical. This is not only because law involves all aspects of social life, but because language is merely a form of expression and law has to use normative language to express its determined content. Language

1.2 Objectives, Content and Significances

7

is the tool we use to express, but to solve legal problems is our real research purpose. While studying the standardization of legal language, we cannot talk about it if we are not familiar with language and we cannot solve legal problems if we are not familiar with law. Actually, a lot of violation of norms in legal language are not problems of language but logic, as language problems are just the manifestation of logical ones. Therefore, knowledge of language, law and logic is the essential tool for us to study the standardization of legal language. In China, the study of legislative language is still insufficient. Generally, legal scholars tend to either focus on the value of law or study the existing law from an empirical perspective. They mostly start from macro issues, but downplay the micro issue of legislative language. However, although legal linguistics scholars have studied a lot on legislative language, they have difficulty grasping its particularity, which is different from general language due to the unfamiliarity with corresponding theory and over-reliance on linguistic research methods. Since China joined the World Trade Organization, laws and regulations have gradually become transparent, more attention has been paid on legal translation, and the legal translation work has made certain achievements. But non-standard translation of legislative texts is commonly seen, due to the long-term single-discipline training mode and the lack of complex talents in law and linguistics. As Chen Zhongcheng (2000) pointed out, the translation of Chinese legislative texts has many achievements on the whole, but it also has many shortcomings, and the violation of norms in legislative translation is not rare (Chen 2000). According to the paper retrieval of Chinese Academic Journal Network, except for a few papers on legal mistranslation from the perspective of words and discourse, written by Zhang Chenquan, Chen Xiaoyan, Wang Yumei, etc., there are few studies on the translation of Chinese legislative texts, especially from the perspective of standardization.

1.2 Objectives, Content and Significances From the above analysis, it is clear that the standardization of legislative language is an urgent problem in China’s legislative and judicial practice. In view of the current situation of legislation, justice and administrative law enforcement in China, we should mainly start with legislative activities, judicial activities and administrative law enforcement activities, and analyze social and cultural factors affecting the contemporary legal language as well as the unique factors of Chinese language itself, to find out the intrinsic characteristics and standardization development of our legislative language. This book, based on the previous studies, will start from the current situation of our legislative language, draw on the text type theory, and study the violation of norms in legislative text translation from multiple perspectives of linguistics, translation and legislation; analyze the causes and essence of the existing violation of norms phenomena; sort out the adverse effects and negative consequences of violation of norms in legislative text and its translation; find approaches to revise violation of

8

1 Introduction

norms in legislative text and its translation. The purpose is to improve the quality and efficiency of legislation, boost the construction of the legal system, promote the quality of legislative activities, judicial and law enforcement activities, enhance the authority of law enforcement, and raise the national image. To be specific, this topic first studies the concept and essential attributes of legal (legislative) language, and explains the two concepts of legislative technique and legal language, which are closely related to legislative language, so as to have a deeper understanding of the connotation of legislative language and the linguistic and stylistic characteristics and requirements of legislative text. Then, from the perspective of legal philosophy, in light of China’s actual situation of legislative language application, conduct an empirical analysis of the existing problem, that is, violation of norms in legislative text translation, and categorize it into formal and substantive problems. Next, on the basis of the comparative study of language and legal culture in English and Chinese, the author further analyzes the causes, essence and adverse effects of violation of norms in China’s legislative text. Finally, on the basis of the in-depth analysis of the causes of the problem, different solutions are put forward for different problems. It is embodied in the following aspects.

1.2.1 Concept and Essence of Legislative Language Legislative language is the language used in the process of making laws. In terms of legislative technique, legislative language is obviously the most visualized expressing form, which belongs to the expression technique of legislative technique. Law depends directly on the language in which it is expressed and transmitted. As the official language of legislative activity, legislative language should convey the intention and goal of legislator on one hand and inform citizens and relevant institutions of the applicable scope of law on the other hand. Therefore, legislative language should have the characteristics of authority, generality, universality, and typicality.

1.2.2 An Empirical Analysis of Violation of Norms in China’s Legislative Text Translation At present, it’s been a common scene to find violation of norms in China’s legislative language, and the number is huge. Almost every important legal document has sort of serious problems; in administrative regulations and departmental rules, worse; what’s more, in a few legal documents nearly every article does not stand up to scrutiny. The violation of norms of our legislative text language is, on one hand, because its language expression violates the rules and regulations of language science, resulting in many fallacies, such as grammatical errors, semantic divergence, logic inconsistency, classification confusion, stylistic dissonance, mixing and crossing, etc.; on the

1.2 Objectives, Content and Significances

9

other hand, it is because of inappropriate application of fuzzy language and failure in grasping accurate degree of fuzziness. Fundamentally, the reason for the violation of norms in our legislative text lies in the lagging research of legislative technique, the disdain for legislative expression technique and the inadequacy of legislative procedure design.

1.2.3 Adverse Effects of Violation of Norms in Legislative Text Translation The violation of norms in Legislative text translation will lower the quality of legislation and harm the national image; fail to fully and accurately express the legislative purpose and intention, resulting in difficulties for the judicial authorities to understand and apply the law; hinder the process of legal education and the popularization of law; undermine the solemnity and authority of the law enacted by the state; waste national legislative and judicial resources; and so on.

1.2.4 Causes of Violation of Norms in Legislative Text Translation and Its Countermeasures Since the reform and opening up, China has made great achievements in legislative text translation, but the phenomenon of violation of norms occurs extensively. The reason lies in the insufficient research on Chinese and Western legal language and legal culture as well as the lack of legal translation strategies and skills. Fundamentally, it’s because of deficiency of systematic research, especially the comparative research on English and Chinese legal language and legal culture, and the lack of interdisciplinary talents for legal translation. Text types are linguistic products that have become standardized and patterned through long-term use. Each text type expresses the pragmatic intention of a specific user or the main function of a specific text. Knowing the characteristics of a specific text type helps translators to correctly grasp the intention and function of the original work on a whole, and text type research also plays an important or even decisive role in the selection and determination of translation standards and translation strategies.

1.2.5 Ways to Correct the Violation of Norms in China’s Legislative Texts The formal problems of violation of norms in legislative texts include logic problems, grammar mistakes, common-sense faulty wording or formulation and punctuation

10

1 Introduction

errors, etc. The substantive problems are caused by the contradictions in the legislative language itself, that is, the contradiction between accuracy and fuzziness as well as the contradiction between specialization and popularization of legislative language. The main ways to correct the violation of norms in China’s legislative texts are as follows: set up expert panels to systematically checkup the language of current laws and regulations; increase investment to establish a standardized legislative language corpus; set up a legislative language review body within the legislature; set up a pre-procedure legislative language examination in the legislative procedure; reinforce the cultivation of interdisciplinary talents, etc. The author believes, to solve the problem of violation of norms in legislative language, we should promote the awareness of language standardization, get rid of the influence by political sentiment, set up a system for legal language experts to participate in drafting of legislation, intensify the teaching and research on legislative language, and build a language review procedure and a legislative language corpus. Accuracy is the life of legislative language. Only when it is accurate can the legislative language fully and effectively express the legislator’s ideas and requirements, and the enacted laws can be properly understood and observed. Legal provisions should use clear, specific and unmistakable language to specify conditions, behavior patterns, legal consequences and other content. But at the same time, legislation, as an authoritative norm to adjust the behavior of all people, must also have a certain generality, which leads to the inevitable use of fuzzy language. It can be said that accuracy and fuzziness are a pair of inherent contradictions of legislative language, and poor handling of it will also contribute to violation of norms in legislative texts. Research on standardization of legislative language has important theoretical significance and practical value for improving the quality of China’s legislation, building a harmonious society and constructing a country under the rule of law. Details are as follows. Firstly, it is conducive to the accurate expression of legislative intention. The will of law is expressed directly through language, and only standardized language can accurately express legislative intention. Secondly, it is conducive to the fairness in law enforcement. Law enforcement refers to the activities that state administrative organs, organizations authorized or entrusted by law and their public officials implement laws in accordance with statutory authority and procedures in the process of exercising administrative power. Standardized legislative text is the premise and basis for law enforcement activities. If law enforcement activities are based on unscientific laws and nonstandard language, it will lead to arbitrary law enforcement, which is not conducive to playing the role of law enforcement in maintaining social order and protecting citizens’ rights. Only by standardizing legislative language can we improve the scientificity of legislation, provide clear and operable standards for law enforcement, and thus help to realize fairness in law enforcement. Thirdly, it is conducive to judicial justice. Justice is the activity of national judicial branches with judicial power to apply the law to specific cases. The exercise of judicial power must be in strict accordance with the provisions of the law. Standardized

Notes

11

legislative language is helpful for the judicial organs to correctly understand and apply the law and realize judicial justice. Fourthly, it is conducive to enhancing the national image and promoting international exchanges. Along with the process of reform and opening up, especially after joining WTO, foreign investment has increased. A lot of Chinese laws and regulations have been translated into English, in order to fulfill the promise of transparency of laws and regulations.2 The standardized translation of laws and regulations, in case of facilitating foreigners to understand and study China’s legal system and improving the investment environment, also spreads China’s rule of law culture and enhances the image of China under rule of law. Fifthly, it is conducive to enriching the research methods of linguistics and jurisprudence. The study of legislative language needs to apply knowledge and methods of both linguistics and jurisprudence. This research path will not only enrich the research methods of linguistics, but also benefit the study of legislation, especially issues related to legislative technique.

Notes 1. According to research, the Constitution of the People’s Republic of China (1982) contains 138 articles, with 140 pieces of linguistic anomie; after two revisions, there are still more than 50 points that are worthy of scrutiny. According to the joint research of famous linguists and constitutionalists such as Lu Jianming and Wang Renbo, at least 23 of them are serious linguistic anomie and should be revised. The Tenth Five-Year Project Team of the State Language and Writing Commission (hereinafter referred to as the Language Commission), chaired by Xie Ying, found more than 30 serious linguistic problems in the Criminal Law (1997) of China. The Language Commission, chaired by Wang Jie and civil law scholar Professor Xu Guodong, found more than 100 linguistic problems in the Property Law (Draft) (2005) that deserve consideration. 2. In order to meet the needs of the accession to the WTO, organize the translation of administrative regulations and promote the translation of regulations and rules, the Legislative Affairs Office of the State Council drafted the Notice of the General Office of the State Council on the Translation and Validation of the Official Translation of Administrative Regulations into English (Draft). With the consent of the State Council, in February 2003, the General Office of the State Council issued the “Notice of the General Office of the State Council on the Translation and Validation of the Official Translation of Administrative Regulations into English”, which clarified the duties and time limits, provided the organization and financial guarantee, standardized the procedures, and required all localities and departments to do well in the translation of regulations. The Legislative Affairs Office of the State Council held symposiums on translation and validation of local regulations and rules in 2004 and 2011 respectively to continuously promote the translation of regulations and rules. Many local governments have made the translation of regulations and rules the work responsibility of the government legal institutions at this level with government regulations or normative documents. Some places, from their own practical point of view, constantly improve the internal working system norms, so that the translation of regulations and rules is well documented, orderly and effective. As of November 2011, among the socialist legal system with Chinese characteristics, the Constitution and more than 230 laws have been translated into English by the Legal Affairs Commission of the National People’s Congress, and 22 compilations of English laws have been published; more than 700 administrative regulations have been translated into English by the Legislative Affairs Office of the State Council, and 21

12

1 Introduction Laws and Regulations of the People’s Republic of China Governing Foreign-related Matters (in Chinese and English) have been published; more than 4500 of 8025 local laws and regulations and 8309 regulations have been translated into English by the relevant local government legal institutions. Many local government legal institutions have made great achievements in carrying out the translation of local laws and regulations and government regulations. For example, the Legal Affairs Office of Shanghai Municipal People’s Government has translated all local laws and regulations, government regulations and other administrative regulatory documents issued in Shanghai into English and released the English translations to the public within three months after their release. By the end of June 2011, Shanghai had translated more than 500 local laws and regulations, government regulations and normative documents. Moreover, the Legislative Affairs Office of Jiangsu Provincial People’s Government not only organizes the translation of local laws and regulations and government regulations in the province, but also organizes the four municipalities with legislative power in the province, Nanjing, Suzhou, Xuzhou and Wuxi, and other municipal and county government legal agencies without legislative power, to gradually carry out the translation of important normative documents.

References Aristotle. 1965. The politics, trans. Wu Shoupeng. Beijing: The Commercial Press. Chen, Zhongcheng. 1987. Fifty legal English articles. Beijing: China Translation Corporation. Chen, Xingliang. 1992. The philosophy of criminal law. Beijing: China University of Political Science and Law Press. Chen, Zhongcheng. 2000. Legal translation. Beijing: China Legal Publishing House. Chen, Xiaoyan. 2008. Studies of language standardization concerning C-E translation of local regulations. Beijing College of Political Science and Law 4: 43–46. Denning, Baron Alfred. 1985. The discipline of law, trans. Yang Baikui, Liu Yong’an, and Ding Jian. Beijing: Qunzhong Publishing House. He, Jiahong. 2008. To standardize legal language. Legal Daily, December 28. Kelly, John Maurice. 2002. A short history of Western legal theory, trans. Wang Xiaohong. Beijing: Law Press·China. Liu, Suzhen. 2008. Standardization of judicial writing style in ancient China: Focus on court verdicts in different dynasties. Journal of Beijing College of Politics and Law 4: 36–42. Shu, Guoying. 1995. The main trends of the German legal philosophy since world war. Journal of Comparative Law 4: 337–355. Tiersma, M.P. 1999. Legal language. Chicago: The University of Chicago Press. Wang, Jie. 1997. Legal linguistics course. Beijing: Law Press·China. Wang, Yumei. 2006. Standardization and translation of E-C public security legal terms. Studies in Logic 9: 4–8. Xu, Guodong. 1992. Explanation of the basic principles of civil law: Overcoming the limitations of statutory law. Beijing: China University of Political Science and Law Press. Zhang, Chenquan. 2010. On the standardization of C-E legal terminology translation. Journal of Juamjusi Education Institute 1: 123–124. Zhou, Ping. 2003. Vague language should be banned in legislation. http://www.people.com.cn/GB/ guandian/1033/1987755.html. Accessed 28 July 2003.

Chapter 2

An Overview of Legal Language

The study of legal language should begin with an understanding of the relationship between law and language. The importance of language in the legal field has been recognized since ancient times, and the combination of law and language has contributed to the birth of forensic linguistics. The earliest systematic interpretation and study of legal language is Aristotle’s Rhetoric. Litigation oratory, referring that the orator delivers a speech in court, either in defense of a defendant or against a defendant or a suspect with the audience being the jury, was one of the three main types of oratory prevalent in ancient Greece, and the other two are political oratory and ceremony oratory. Rhetoric, is both a rhetorical textbook and a scientific treatise. It was written at the peak of the art of oratory and writing in ancient Greece. Aristotle systematically studied the argumentative methods and writing principles of oratory by using the philosophical theories and scientific methods at that time, thus making Rhetoric the first systematic monograph on rhetoric theory in the European academic history and pioneering the study of legal language in Europe. Since then, European scholars have never stopped their exploration of legal language. In the Western academic history, the twentieth century is known as the “Century of Linguistics”. Literature, history, philosophy and other humanities and social disciplines were largely affected by this “imperial era of linguistics”, and law, described as “a discipline that can never be self-sufficient” by the famous American justice Holmes, was no exception. The emerging schools, such as, the semantic analytic jurisprudence represented by Herbert Hart, the new rhetorical jurisprudence by Chaïm Perelman, and the popular legal hermeneutics, largely gained the intellectual support from linguistics. This is why it was called “linguistic turn of jurisprudence”. In August 1993, the International Association of Forensic Linguists (IAFL) was founded in Bonn, Germany. The following March, the first journal of legal linguistics, Language and Law 《语 ( 言与法律》 ), was published, marking the formal formation of the discipline.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language, https://doi.org/10.1007/978-981-99-2633-6_2

13

14

2 An Overview of Legal Language

2.1 Law and Language Both law and language have long histories. Historically speaking, language predates law. At the time when humans successfully evolved from ape, a syllabic language had already been well-developed, but there was no law yet since human had just separated from the animal kingdom. When mankind entered the primitive societythe first social form, “common rules” followed by people belonging to the same group came into being, in order to maintain the production and distribution system. In the absence of writing, these “common rules” had to be agreed upon orally and passed on by word of mouth. This is probably the earliest connection between language and law (Ding 2001). After the birth of writing, it became a tool to express the law, no matter it is written or unwritten. Essentially, law depends on language to be conceivable. The outstanding English historical jurist Henry Maine said, in his Ancient Law, that the origin of law can be traced back to the patriarchy of Ancient Greece, and the two words “Themis” and “Themistes” can be seen as the starting point for research. “Themis” refers to an activity of human being that men can only account for sustained or periodically recurring action by supposing a personal agent. Maine says: “When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration. …the greatest of kings, was Themis. … ‘Themistes’, the plural of ‘Themis’, are the awards themself, divinely dictated to the judge. Kings are spoken of as if they had a store of ‘Themistes’ ready to hand for use (Maine1997: 2).” Before the invention of writing and when it’s still in the infancy, an aristocracy endowed with judicial privileges became the only expedient to preserve the customs of a nation or tribe. It was because the customs were entrusted to the memory of a minority in society that they could be preserved as truthfully as possible. As human had words and it became increasingly mature, law correspondingly changed from custom or customary law into written law, and the development of law entered a new codified phase named “Code Era”. Obviously, the emergence, evolution and development of law are intrinsically linked to language. Human language evolved from spoken language to written language, which naturally ushered in the historical evolution of law from the unwritten state of custom and customary law into the written law state.

2.1.1 Language Constructs the Meaning of Law, and Is the Ontological World of Law Law is served by language. In other words, the world of meaning of law is constructed by language. Hans-Georg Gadamer, the German philosopher, once said: “Whoever has the language has the world” (Gadamer 1999). Existence forms language in thought. Language is the home of being, and man makes his home in language. The people who think and the people who create are the caretakers of this home, according to Heidegger (1991) Language, as a cultural subject, directly constitutes human cultural psychology. Language not only conveys legal concept, legal consciousness,

2.1 Law and Language

15

legal systems and legal psychology, but also is the form and symbol by which we perceive, realize, and understand the world. It is impossible for us to directly visualize any abstract meaning of law, but through the construction and combination of linguistic symbols we can get to know the law as a legal entity. Language organizes and regulates the complicated human perceptual experience, turned People have numerous and complicated perceptual experiences, and those intangible thoughts, ideas, and feelings can be transformed into real beings through words. That’s why we can only explore the meaning of law in language. A world without language would be a chaotic one, a world without the division of “day” and “night”, a world without “fairness”, “justice”, “order” and “efficiency”. All norms of behavior and prohibitions of law in human life appear in the form of symbol system. Law relies on language to complete the process from conception to existence. Law is manifested by language, which endows law with specific connotations, shapes the image of law, and makes it powerful to influence or dominate people’s thoughts and actions (Wang 2001). Language not only elevates human beings from the physical world to the metaphysical world and achieves the world status of what makes people human, but language also serves as the foundation of law itself. According to Xie Hui (2003), since there was language (written symbols and characters), there was law in the real sense. Law is the product of the interaction between man and the environment in which they live, the symbol of such interaction, and the interaction between people presented by language (including written symbols and characters). For law, language and writing are its raw materials, on which law grows up. As people interpret law in completely different ways, law can be divided into generalized law and narrow law. The former refers to not only state law but also religious law, folk customary law and even natural law applicable to non-humans; the latter refers only to the positive law of the state. Despite such wide division in the interpretation of the scope of law, law is expressed with the help of certain symbols that people can understand, which are language and writing in the most general sense (Xie 2003). The meaning world of law is constructed through language, which depends not only on its nature but also its function. The reference of objects and the statement of things in language is semantic observation, through which, together with the usage of language, the world is described to serve the communication between people. In this sense, the functions of language include “the function of informing and understanding (information), the social function (community formation), the operational function (thinking and calculating with the help of language), the marking function, and the significance of this function for memory” (Kaufmann 2004). The function of informing and understanding allows the law to be known to the world; the social function of language makes it possible for law to regulate the whole society and form an orderly state; the operational function of language enables people to accept the authority of law’s regulation rationally, consciously or compulsively, and predict the possible legal significance of their behavior, like obtaining rights or undertake obligations or even responsibilities; the marking function of language helps people

16

2 An Overview of Legal Language

to understand the meaning conveyed by law through its text form, and either accept or resist. Thus, law cannot be separated from the carrier of language, which can be either spoken or written.

2.1.2 It Is the Mission of Legal Professionals to Pursue the Meaning of Law Through Language To understand the nature of the law, people normally are faced with two questions: one is that what the law is and the other is what the law should be. The school of natural law takes the natural law as the basic yardstick for judging the positive law. The school of analytical law highlights the scientific nature of jurisprudence and deems positive analysis as the guiding principle of its academic studies. The school of sociological law regards social analysis as the goal of its studies and pinpoints the investigation of the relationship between law and social reality. The above mentioned three schools of jurisprudence reveal the distinct pathways of law studies from different facets, facilitating people to observe legal issues and explore the meaning of law from different perspectives (Hu 2005). In the latter half of the twentieth century, as the study of legal issues went through the progressive phase of ontology and epistemology, it was discovered that neither the ontological commitment nor the epistemological turn could resolve the complex connection between “lex ferend” (established principles) and “lex lata” (actual situations). However, what hinders people’s legal understanding might be the problem of language, and the way to link individual and object. Many scholars and thinkers, therefore, turned to language as the category of objectivity, which had been only regarded as a tool of daily communication. As a result, western law studies stepped into the stage of forensic linguistics, that is, the normally called linguistic turn of jurisprudence. Law is a combination of what it is and what it ought to be, linking two different worlds that are reality and ideal. When law is applied, on one hand, existing norms are connected with the relevant real world, thus forming a state of actual social order. On the other hand, law bears people’s ideas and yearning for the ideal social order in the future, conveying to people an appropriate form of norms, describing the ideal state of life (Yang and Gao 2005). The linguistic turn in legal studies brought jurists the breakthrough and innovation in their own theoretical research paradigms, which benefits from the intellectual resources provided by linguistics. The interdisciplinary and multi-dimensional research paradigm has questioned, deconstructed and reconstructed the essentialist view of legal language in traditional legal theory, and shaken the traditional legal view that law is definitive, uniform and universal. It also attempted to find the invariable essence in the ever-changing phenomena, and thus to construct a “grand theoretical narrative” of legal philosophy. Under the paradigm of the linguistic turn, the universal knowledge of traditional legal theory has been challenged, and a diversified and different theory of legal knowledge has been proposed and advocated. In such a paradigm, law is no longer seen as a set of principles and

2.2 Legal Language

17

rules, but as human communication and interpretation in language. Legal discourse, as a part of language, remains a kind of thought and a cultural tradition. It not only consists of but symbolizes the culture. According to the contextualism or locality of legal knowledge, each of us have to observe and understand the world through language, experience and cultural environment in which we live. But this contextualism or locality of knowledge inevitably leads to an anti-foundationalism legal view that law is a linguistic game or a way of life, and it is a kind of local knowledge; wherever and whenever we are, our knowledge is temporary and changes with our experience. Legal knowledge is not a transcendental proposition beyond time and space. It is attached to certain judicial practice. Contrary to the view that law is universal, “law… is local knowledge; local not just as to place, time, class, and variety of issue, but as to accent-vernacular characterizations of what happens connected to vernacular imagining of what can” (Geertz 1983). “Time is merciless, in warriors and in ordinary men; its face is indifferent, and the only way to become a man of grace is to worship language and gain salvation, by which man lives.” This is a beautiful and heart-wrenching comment on language by J. M. Kelly, the famous Irish jurist, whose wise words have crafted such exquisite phrases. Indeed, language carries all the love and hatred, truth and falsehood, beauty and ugliness, good and evil of all things in the world. In this sense, people’s inquiry of law is the inquiry of language, and the essence, significance and ultimate life concern of human beings. It is true that, people’s sensibility to language may not be constant, but those who make law their business must be passionate about the love, truth, beauty, and goodness of language all their life, so as to construct a good world order. In a word, it is the academic mission of legal professionals to inquire into law through language. Law’s inquiry into the good world order is expressed in the form of language. Anyone with a belief in the ideal pursuit of happiness in life should be fully passionate about language. The French philosopher Henri Bergson once lamented about life that, our world is like a vast street, and we humans are passers-by on the thoroughfares, running, strolling, walking, riding, as if we were messengers or servants (Yu 1988). The intrinsic relation between language and law illustrates the importance of language to law. In all legal fields, including legislation, judicature, administration, lawyers’ work, legal education, study and research, successful use of language remains a prerequisite for legal work, and the legal profession is essentially the profession of legal language.

2.2 Legal Language As mentioned above, legal language is a common language of nation gradually formed in the long-term legal practice, which serves all legal activities and has the characteristics of legal profession. Legal language includes various legislative language that express legal norms and judicial language that serves litigation activities and non-litigation legal affairs. By exploring the expressive function and external

18

2 An Overview of Legal Language

qualities of legal language, we can see that legal language is actually a variant of the national common language. This variant is not shown in a geographic way, but in the industry and professional domain that means the special subject, specific range of application and special using effects of legal language. This also determines the marginal nature of legal language. On the one hand, legal language is the carrier of legal culture, which contains a wider range of social and cultural factors. The study of legal language not only relies on jurisprudence, but also involves much in sociology and culturology. On the other hand, legal language, as a special functional variant of the common language, has its own linguistic constraints as far as the study of language ontology is concerned. Originated in the west, the term “legal language” in English refers to the language or part of a specific language used for expressing legal concepts and dealing with litigation and non-litigation legal affairs. Later, the connotation of this term extents to those words and expressions possessing certain legal significance, bringing the term to other aspects of language, such as legal sentence and court litigation language. China has a long history of attention and research on legal language while the introduction and clear definition of the term “legal language” has been reflected in the legal language works published in the past 20 years. In the early 1980s, with the full restoration and gradual improvement of China’s socialist legal system, the legislative and judicial work were facing a large number of problems related to the use of language, and officials in political and legal department and students of public security, political and legal faculties were also facing the task of strengthening their language learning capacity, all of which put forward urgent requirements for the practical and theoretical study of legal language. Along with the need of social application and in-depth research, legal language is gradually defined as the language in which the national common language is used in all legal activities including legislation, justice and interpretation of law in China (Sun 2006). In other words, legal language is a kind of social dialect, with the characteristics of legal profession, which is gradually formed in the long-term legal science and legal practice of the national common language, and serves all legal activities. It includes the legislative language to express various legal norms and the judicial language to serve litigation activities and non-litigation legal affairs. Judicial language can be divided into judicial spoken language and judicial written language, and the latter one mainly refers to the nonnormative judicial documents with legal effect or legal significance commonly used in litigation and non-litigation legal activities. Like other scientific and technical languages, legal language evolved from the language of the whole nation. A variety of contextual factors, such as certain communicative fields and their corresponding communicative purposes, and contents, promote the selection and combination of language materials and expression methods in the domain of language use to form a stable and systematic feature. After longterm use and evolution, this domain of legal language use has formed a functional variant of language that distinguishes it from other domains of language use, namely legal style.

2.3 Characteristics of Legal Language

19

2.3 Characteristics of Legal Language The characteristics of legal language are mainly reflected in the following four aspects: language style, legal glossary, lexical Classification and semantics.

2.3.1 Language Style In terms of language style, legal language has the following characteristics.

2.3.1.1

Accuracy and Fuzziness

The purpose of the law is to settle the disputes. As an external form of law, the statutory principle of legal language is the accuracy of language, that is, the legal language must be clear and accurate in order to meet the requirements of clarifying the rights and obligations of all parties. Accuracy is the soul and life of legal language, and also the basic style of legal language. The legislation emphasizes that a word should have only one meaning rather than two or more; the meaning should be fixed and cannot be interpreted in multiple ways. For example, terms such as “probation”, “parole” and “self-defense” have their fixed meanings in criminal law. For another example, Article 44 of China’s Criminal Law (1997) stipulates: “The term of criminal detention shall be counted from the day the judgment begins to be executed; and if the criminal is held in custody before the execution of the judgment, each day in custody shall be considered as one day of the term sentenced.” This article uses specific words to qualify the term of criminal detention, with specific expressions such as “the day the judgment begins to be executed” and “each day in custody shall be considered as one day of the term sentenced”, so as to ensure the accuracy. In addition, legal language has fuzziness. In legal provisions and judicial practice, the use of fuzzy words in legal language is common. The fuzziness of legal language lies in the fact that limited legal norms cannot correspond to all social behaviors. The real social life is so diverse while the legal provisions used by people to regulate social behaviors are extremely limited. In order to adjust the mutual relations in real life, the law should accommodate these relations as far as possible. Thus, the generality of legal language must be ensured to achieve the purpose of normative guidance of law. General clauses such as “good custom”, “public interest”, “good faith” and “fairness principle” are inclusive and cover multiple social values. The fuzziness of legal language also lies in the fuzziness of objective things themselves-a natural and universal phenomenon-as well as the uncertainty of people’s understanding of objective things. When people grasp objects, if it’s hard to accurately define, refer to or describe them with language, they will choose multiple explanatory expressions to help. “Fuzziness”, as an important way to perceive the world, is different from “ambiguity”, which often refers to the negative results of improper use of language,

20

2 An Overview of Legal Language

and should be avoided as much as possible. Fuzziness has uncertainty, as well as negative and positive effects. In court debates, lawyers of both sides or the judges in the collegial panel, out of respect for others and self-cultivation, often use euphemisms or fuzzy terms to express their different opinions. For example, in the sentence “My lord, I take the strongest possible objection to the course proposed by my learned friend.”, Here, the “strongest/objection” expresses disagreement, while “possible/learned/friend” shows respect for others. For another example, “Unless this account is paid within next ten days, we will take further measures.”, in this sentence “take further measures” is fuzzy words. The lawyer could have used words “start legal proceedings” or “bring suit” instead, but the lawyer did not, because it is too early to speak with such certainty that it is better to adopt a fuzzy statement. Similar examples abound in legal affairs. For another example, the translation of Article 114 of our Criminal Law (1997) is as follows. 放火、决水、爆炸、投毒或者以其他危险方法破坏工厂、矿场 、油田、港口、河流、水源、仓库、住宅、森林、农场、谷场 、牧场、重要管道、公共建筑物或者其他公私财产, 危害公共 安全, 尚未造成严重后果的, 处三年以上十年以下有期徒刑。 Translation: Whoever sets fires, breaches dikes, causes explosions, spreads poisons or uses other dangerous means to sabotage any factory, mine, oilfield, harbor, river, water source, warehouse, dwelling, forest, farm, threshing grounds, pasture, key pipeline, public building or any other public or private property, thereby endangering public security but causing no serious consequences, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Example:

The use of “other” here is a typical fuzzy word. After enumerating the main means of crime and items of destruction and adding such fuzzy words as “other dangerous means” and “other public or private property”, this provision has a certain degree of limitation and generality, which makes the definition more rigorous, so as to fight crime to a greater extent. If the fuzzy words are omitted or replaced by the exact words, the legislation will lose its rigor, and on the other hand, it is likely to cause a large number of illegal and criminal acts in real life to escape the sanction of the law.

2.3.1.2

Generalization and Specialization

Legal language is to serve both the law and life. Therefore, on the one hand, in terms of language, it should reflect the intention of the ruling class and serve the law and the ruling class. On the other hand, it must give life to feasible guidance and constraints and reflect the requirements of life. This is expressed in the content stipulated in the legal language. For example, “The state may, in order to meet the demands of the public interest and in accordance with the provisions of law, expropriate or requisition land and furnish compensation.” This content stipulates that the state may expropriate or requisition land for the need of public interest in accordance with the

2.3 Characteristics of Legal Language

21

law, because the legal language serves the state. Meanwhile, it also provides that the expropriated or requisitioned person in this case can receive compensation because the legal language also serves the public. In legal language, there are a large number of common words used in legal work, other basic and non-basic words in the national common language, phrases of classic Chinese and ordinary words. Since the development of law, it has formed a set of relatively fixed mode, a set of specialized terminology, a specific form of expression to express specific content, therefore, it also has a large degree of specialization. One example is the adoption of terminology which not only inherited archaic language and borrowed Latin vocabulary, but also absorbed terms and concepts from the field of science and technology in a timely manner. For example, “sadism” is derived from psychology, “abortion” from medicine, “artistic work” from art, “continental shelf” from geography, “heredity” from biology, “ratio” from mathematics, “incest” from sociology, “monogamy” from demography, “tariff” from economics, “average” from transportation, “claim” from foreign trade, “life insurance” from insurance, and so on.

2.3.1.3

Complexity and Simplicity

The law is mandatory, prescriptive, and authoritative, so the legal language must be so elaborate as to leave no loopholes. However, complexity can sometimes be cumbersome. In 1835 Arthur Symonds, a scholar, severely criticized the verbosity of legal language. He said, the simple phrase “I give you that orange” would become the following with the lawyer: I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice, pulp and pips, and all right and advantage therein, with full power to bite, cut, suck, and otherwise eat the same, or give the same away as fully and effectively as I am now entitled to bite, cut, suck, or otherwise eat the same orange, or give the same away, with or without its rind, skin, juice, pulp, and pips, anything herein-before, or hereinafter, or in any other deed, or deeds, instrument or instruments of what nature or kind soever, to the contrary in any wise, notwithstanding.

The complexity and elaboration of legal language are mainly reflected in the use of long sentences and subject-predicate sentences. In terms of legal Chinese, it has a complex structure of long sentences with more words, longer forms and more detailed and elaborate ideograms. For example, Article 34 of the Law of the People’s Republic of China on Economic Contracts (1981) provides that: 当事人一方由于不可抗力的原因不能履行经济合同时, 应及时 向对方通报不能履行或者需要延期履行、部分履行经济合同的 理由, 在取得有关主管机关证明以后, 允许延期履行、部分履行 或者不履行, 并可根据情况部分或全部免予承担违约责任。 Translation: If a party cannot perform an economic contract due to force majeure, it shall promptly notify the other party of the reason for its inability of performance or for its needs of a deferred performance or partial performance of the economic contract. Upon obtaining a relevant Example:

22

2 An Overview of Legal Language

certificate, it shall be permitted to extend the time for performance, to perform partly or not to perform, and it may, in accordance with the circumstances, be partly or completely exempted from liability for breach of contract. But compared with Chinese legislative language, the British and American legal provisions are lengthier. Take one article of the Uniform Commercial Code for example, it consists of a 145-word-long sentence including a series of clauses and other forms of modifiers, which has a complex sentence structure and accommodates a large amount of information. The article is as follows: Except as otherwise provided with respect to damages liquidated in the lease agreement (Section 2A-504) or otherwise determined pursuant to agreement of the parties (Sections 1302 and 2A-503), if a lessee elects not to cover or alessee elects to cover and the cover is by lease agreement that for any reason does not qualify for treatment under Section 2A-518(2), or is by purchase or otherwise, the measure of damages for non-delivery or repudiation by the lessor or for rejection or revocation of acceptance by the lessee is the present value, as of the date of the default, of the then market rent minus the present value as of the same date of the original rent, computed for the remaining lease term of the original lease agreement, together with incidental and consequential damages, less expenses saved in consequence of the lessor’s default.

Subject-predicate sentence is widely used in legal language for its complete and thorough ideation and accurate description of matters. In legislative texts, the subject sometimes is repeated in order to emphasize the subject of the act. For instance, in the Article 19 to Article 26 of the Constitution of the People’s Republic of China (amended in 2004) (hereinafter referred to as the Constitution), all their subjects are “the state”, which is repeated in each sentence every single time instead of using pronouns like “it”, showing the accuracy and rigor of the legal language. In judicial documents, since most of the length is devoted to narrating facts and explaining reasons, in order to ensure the correct conclusion of the trial, it is necessary to write every component of each sentence, without the slightest ambiguity and omission. Therefore, the subject-predicate sentence with complete and thorough meaning are also extensively used. Since law is time-sensitive and has binding force, the legal language must be expressed in a concise and clear manner so that people can understand it at a glance. The conciseness of legal language is mainly reflected in the extensive use of specific sentence patterns such as short sentences, phrases, and non-subjectpredicate sentences. In legal language, imperative sentences, which indicate the tone of command and prohibition, and declarative sentences with simple structure and meaning, are often expressed in short sentences, such as “禁止重婚 (Bigamy shall be prohibited)”, ”实行计划生育 (Family planning shall be practiced)”, “刑罚分为 主刑和附加刑 (Punishments are divided into principal punishments and supplementary punishments.)”, etc. The use of such short sentences ensures the simplicity of legal language and reflect the irresistible nature of law. The use of non-subject-predicate sentences occupies a certain proportion of the legislative language. Non-subject-predicate sentences include nominal, verbal and adjective non-subject-predicate sentences and interjection sentences. Since law is

2.3 Characteristics of Legal Language

23

solemn and serious, it does not need to depict images and express feelings. Therefore, verbal non-subjective-predicate sentences are generally used in legal language. The following examples are given. Example 1: 实行婚姻自由、一夫一妻、男女平等的婚姻制度。 Translation: A marriage system based on the free choice of partners, on monogamy and on equality between man and woman shall be applied. Example 2: 保护妇女、儿童和老人的合法权益。 Translation: The lawful rights and interests of women, children and old people shall be protected. Example 3: 实行计划生育。 Translation: Family planning shall be practised. —Article 2 of the Marriage Law of the People’s Republic of China (1981) Example 4: 禁止用任何方法对公民进行侮辱、诽谤和诬告陷害。 Translation: The personal dignity of citizens of the People’s Republic of China shall not be violated. It is prohibited to use any means to insult, libel or falsely accuse citizens. —Article 38 of the Constitution of the People’s Republic of China (amended in 2004) Example 5: 对涉及国家秘密、商业秘密、个人隐私的证据, 应当保密。 Translation: Evidence involving State secrets, trade secrets or private matters of individuals shall be kept confidential. —Article 52 of the Criminal Procedure Law of the People’s Republic of China (amended in 2012) In judicial documents, sometimes, because the organ producing judicial documents is self-explanatory, it often uses non-subject-predicate sentences, such as “现查明 …… (Presently verifies…)” “依照 …… 判决如下 (according to … the court decision is as follows)” “判处被告人 …… (sentenced the defendant …)” and so on.

2.3.2 Legal Glossary From the perspective of legal glossary, legal language has the following characteristics.

2.3.2.1

Monosemy

Legal language, especially in legislation, shall emphasize that a term should have only one meaning rather than two or more meanings, and that its meaning should be fixed without multiple interpretations. For example, terminologies such as “probation” “parole” and “justifiable self-defense” have their fixed meaning in criminal law.

24

2.3.2.2

2 An Overview of Legal Language

Specificity

Legal words each have a certain range of application and reference objects. For example, in Chinese, “侦查 (zhen cha)” and “侦察 (zhen cha)” have the same pronunciations and similar meanings, but the former means investigation, which belongs to the legal language, while the latter means reconnaissance, and is a military terminology.

2.3.2.3

Sociality

Daily language is infinitely self-generative and can be created by anyone as is vividly demonstrated on the Internet. However, legal glossary requires the recognition of legal form, and it has countability and finiteness in number. With such constraints, development of legal glossary is relatively slow and its choice is not arbitrary but subject to legislation, judicial practice and social value choice. For example, whether “euthanasia” and “marital rape” will become legal terms is mainly subject to legislative and judicial orientation rather than social attitude.

2.3.3 Lexical Classification In terms of lexical classification, legislative language primarily uses prepositions, conjunctions, adverbs, and auxiliaries instead of modal words, interjections and onomatopoeia. Take Chinese legislative texts for instance, on a whole, the nouns and verbs used in legislative language together account for about three quarters of legal words (Li 1998: 25). Nouns are divided into special nouns, such as “遗产 (legacy)” and “继承人 (successor)” in the inheritance law as well as “自首 (voluntary surrender)” and “立功 (meritorious performance)” in the criminal law. The nouns commonly used in the legislation are mainly the directional nouns and time nouns, such as “上 (up)”, “中 (middle)”, “下 (down)”, “以外 (outside)”, “以内 (within)”, “时 (hour)”, “日 (day)”, “月 (month)”, “年 (year)”, and so on. Verbs are also divided into department law words such as “继承 (inherit)”, “宣告失踪 (declare disappearance)”, “收养 (adopt)”, and general legal words such as “必须 (must)”, “应当 (should)”, “ 可以 (may)”, “禁止 (prohibit)”, etc.

2.3.4 Semantics From the perspective of semantic certainty, legal language has both certainty and uncertainty. According to the reference theory, words have meaning because they mark things in the world outside the language, and the meaning of words is the objects they refer to. Later Wittgenstein’s linguistic philosophy argues that words do

2.3 Characteristics of Legal Language

25

not necessarily have their own referential objects, and the meaning of words can only reveal the object indicated by word in use. “The meaning of a word is its use in the language.” “A word has a meaning only in the context of a sentence” (Wittgenstein 2001: 33–38). If words do not have a relatively stable core of meaning but only usage, then writing a lexicon becomes a problem, because the interpretation of words is the stable meaning divorced from their concrete use. The use of words must be based on a stable core of meaning, and the use of words in specific contexts should be determined by the meaning of words, rather than the other way around. The entity of word meaning and the function of word meaning coexist in language. The meaning of word and the use(function) of word are two different concepts. Confusing the two or replacing one with the other will cause confusion in the understanding of word meaning. Maurice divided semiotics into three parts: conceptual meaning, pragmatic meaning and referential meaning. Conceptual meaning, the most basic meaning of words, embodies the relationship between words and concepts. When a word in a linguistic system exists in isolation from context, its basic lexical meaning, excluding grammatical, rhetorical, and affective evaluation colors, is conceptual meaning. From reference theory and syntactics, we know that the meaning of legal language has certainty, but usage theory and context theory suggest that there is also uncertainty in the meaning of legal language. Generally speaking, legal language can be a dialectical unity of certainty and uncertainty. The uncertainty of the law originates from the uncertainty of language in the first place, which is manifested as the fuzziness, inclusiveness and dynamics. As Hart says, legal concepts have central meaning and marginal meaning. The closer they get to the edge, the more marginal vagueness exists. The central meaning of a concept may be clear and explicit, but it tends to be complex and vague when we leave that center (Bodenheimer 1999). In a word, both the complicated and elaborate long sentences and subject-predicate sentences, and the concise and clear short sentences and non-subject-predicate sentences reflect the solemnity and rigor of legal language. In legislative activities, we should strive to achieve the solemnity, certainty and simplicity of legal language. Through the regulation of legislation, we should strive to achieve the certainty and clarity of the meaning of legal language, and pursue the rational purpose of legislation, thus laying the foundation for the application of law, the resolution of disputes and the rational argumentation of judgments. It is precisely because of this pursuit and attitude that legal language has its relative certainty of meaning. At the same time, we must be aware that legal provisions that seem to be certain in meaning in the legislative context will inevitably face semantic fuzziness, semantic changes, differences in understanding, as well as different value orientations and pursuits in the judicial operation, which may lead to the inevitable emergence of a large number of legal meaning uncertainty in legal operation.

26

2 An Overview of Legal Language

References Bodenheimer,Edgar.1999. Jurisprudence: The philosophy and method of the law, trans. Deng Zhenglai. Beijing: China University of Political Science and Law. Ding, Shijie. 2001. An introduction to legislative language. Academic Journal of Zhongzhou 5: 124–126. Gadamer, Hans-Georg. 1999. Truth and method (volume I), trans. Hong Handing. Shanghai: Shanghai Translation Publishing House. Geertz, Clifford. 1983. Local knowledge: Further essays in interpretive anthropology, 215. New York: Basic Books. Heidegger, Martin. 1991. Poetry·language·thought, trans. Peng Fuchun. Beijing: Culture and Art Publishing House. Hu, Yuhong. 2005. To review the methodologies of three western jurisprudential schools. Journal of Comparative Law 2: 20–32. Kaufmann, Arthur. 2004. Legal philosophy, trans. Liu Xingyi. Beijing: Law Press·China. Li, Zhenyu. 1998. A preliminary study on legal linguistics. Beijing: Law Press·China. Maine, Henry James Sumner. 1997. Ancient law. Beijing: The Commercial Press. Sun, Yihua. 2006. Legal linguistics. Changsha: Hu’nan People Publishing House. Wang, Jian. 2001. Legal implications of bridging two worlds: The importation of western law and legal neologisms in the late Qing dynasty. Beijing: China University of Political Science and Law Press. Xie, Hui. 2003. The search for the meaning of law: Philosophy of law in the perspective of hermeneutics. Beijing: The Commercial Press. Yang, Lun, and Junliang Gao. 2005. The meaning of language to law. Journal of Ningxia University (Social Science Edition) 5: 126–128. Yu, Wujin. 1988. Problems outside the problem domain: An exploration of modern Western philosophical methodology. Shanghai: Shanghai People’s Publishing House. Wittgenstein, Ludwig Josef Johann. 2001. Philosophical investigation. Trans. Chen Jiaying. Shanghai: Shanghai People’s Publishing House.

Chapter 3

Research on Legal Language

3.1 The Linguistic Turn of Western Jurisprudence Overall, western philosophy has witnessed two significant turns. The first is the epistemological turn from the seventeenth century onwards, with Rene Descartes’ philosophy as the turning point. In essence, it is the shift from an ontological inquiry into the origin of the world to an epistemological inquiry into “how man gets to know”. Since then, reason had gained its supremacy in philosophy. The second is the linguistic turn that took place at the beginning of the twentieth century. The so-called linguistic turn represents that the language itself, originally as a vehicle to convey “consciousness” and “concept”, defines and constitutes them. Therefore, language becomes the subject of theoretical investigation, as well as the starting point of theoretical development. This cognitive paradigm and methodology were imbued with the whole humanistic studies, thereby shaping the linguistic turn with a holistic effect. This linguistic turn can be traced back to Ferdinand de Saussure, the founder of structuralist linguistics, who argues that all linguistic signs consist of signifier and signified. The former is interpreted as the physical form of language while the latter refers to the concept and value. As language exists before human beings, its meaning is determined by the differences between linguistic signs rather than by men. As Saussure once said, there is only difference with no positive terms. In other words, there is only difference in language without absolute meanings. The relationship between signifier and signified is totally established by convention in an arbitrary way. Jacques Derrida, a famous deconstructionist, also argues that there is no defined boundary between them, because language itself embodies various meanings. It only represents specific and temporary meaning based on the context. Moreover, it cannot guarantee truth that is definite, eternal, and single, while the so-called truth is nothing but the product of our willingness to be seduced by language (Du and Zhang 2001). Law is a part of the world, but in a sense, law itself is also a “world”, a world existing in language and constructed by language. In the Western academic history, the twentieth century is known as the “Century of Linguistics”. Literature, history, philosophy and other humanities and social disciplines were largely affected by this © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language, https://doi.org/10.1007/978-981-99-2633-6_3

27

28

3 Research on Legal Language

“imperial era of linguistics”, and law, described as “a discipline that can never be selfsufficient” by the famous American justice Holmes, was no exception. The emerging schools, such as, the semantic analytic jurisprudence represented by Herbert Hart, the new rhetorical jurisprudence by Chaïm Perelman, and the popular legal hermeneutics, largely gained the intellectual support from linguistics. This is why it was called “linguistic turn of jurisprudence” (Chang and Zhu 2003). Ludwig Wittgenstein, the Austrian philosopher, is a major figure in this linguistic turn. In his later philosophy, he questions and attacks the research method introduced by Plato, who wishes to find common, consistent, and essential properties of things (i.e. the “desire for universality”). He proposed to replace ideal language with ordinary language and to establish a new method of “linguistic game”. This method aims to examine the meaning of a word in a certain linguistic game and identify its similarity and diversity. This requires the basic two steps. Firstly, we should conduct the analysis by putting language into practical daily use and through using it under the context. Secondly, we should avoid ignoring their differences by virtue of family resemblance or commonalities. Instead, it is recommended to replace normative and definitional methods with descriptive and enumerative ones. In law studies, Wittgenstein’s daily language analysis, namely philosophy of language, has changed the previous grand theoretical narrative and blazed a new trail for the linguistic turn of law studies methods (Li 2005). The English jurist H.L.A. Hart, one of the core members of the Oxford School, is regarded as an outstanding representative of successfully applying the philosophy of language to analyzing legal issues. In his works such as Essays in Jurisprudence and Philosophy and The Concept of Law, he pointed out that the meaning of legal words and concepts do not remain unchanged, but vary in multiple forms in accordance with the contexts, conditions and approaches. Only by figuring out the contexts and specific conditions under which they are used can we determine their real meaning. British Glanville Willams and American Watter Probert further investigated the ambiguity in legal semantics and the emotional character of legal terms. Probert proposes the concept of “word-consciousness” among lawyers and judges and regards language as a major tool for social control. Hence, justice is defined as the choice of different premises guided by words (Dong 2006). Hart severely criticized the traditional defining method in jurisprudence. He states that one should not answer such questions as “What is right?” and “what is legal entity?” in an abstract way, but interpret them by clarifying the context and conditions in which they are used. Hart also quotes J. L. Austin, the philosopher of semantic analysis, that in search for legal definitions, we “do not just focus on the words, …, but also on the real objects to which the words refer. We are deepening our perception of phenomena through thorough knowledge of words.” He points out that jurists should not establish legal theory merely on the basis of definition, and they should try to analyze how law and legal language is used in daily life. He also stresses the method to applying semantic analysis to jurisprudence. Hart’s inaugural speech marks the formal entry into semantic analytic philosophy of jurisprudence. It becomes the methodology of post-war judicial positivism and leads to a new movement, that is, semantic analytic jurisprudence (Zhang 1996).

3.1 The Linguistic Turn of Western Jurisprudence

29

Since then, inspired by Michel Foucault and others, law was understood by P. Goodrich as a linguistic space and a field of discourse, parallel with economics, ethics and aesthetics and so on. In addition, he tried to understand the internal structure of law, including legal modes of reasoning and the lexical system specific to jurisprudence, in relation to other linguistic fields. In this way, legal pluralism with its diversity and uncertainty is truly defined, thus demystifying legal discourse. As such, Richard Allen Posner asserts that the belief of law kingdom is dead (Zheng 2000). The traditional western rhetoric has always treated language as a tool, which means that people convey their meaning by language. There is a natural correspondence between linguistic signs and the meaning of language, and language, the carrier of meaning, is transparent. Belgian linguist and philosopher Perelman in the twentieth century introduced new rhetorical jurisprudence, which incorporated the theoretical ideas of pragmatism and existentialism, especially the philosophy of linguistic analysis. It transcends the traditional theoretical framework of rhetoric as a whole and grants rhetoric a new meaning and a new theoretical system, thus breathing a new life into traditional rhetoric. Specifically, rhetorical theories from ancient thinkers such as Plato and Aristotle have been interpreted and elaborated in a new way, embracing them with new vitality and functions. The core theory of the new rhetorical philosophy of law lies in its theory of justice. It features the synthesis and reconciliation of specific notions of justice through semantic interpretation in an attempt to reach a universal concept of justice. The new rhetorical jurisprudence deems language as an act subject to the constraints of social context. They argue that fact is not the only determinant of semantics, and the meaning is decided by the collective action such as political organization, court decision, occasion and ceremony. To illustrate the application of his so-called new rhetorical legal thinking to the judicial process, Perelman takes the regulation of “no vehicles into the park” as an example: suppose that the gatekeeper is a judge who allows a person with a pram into the park on the grounds that a pram doesn’t apply to the rule; And when there is a person suffering heart attack in the park, he lets an ambulance into the park on the grounds that it is the circumstance beyond human control. In this case, the judge does not implement the article mechanically, nor does he merely interpret the meaning of the vehicle. Actually, he makes a decision by the intellectual tool of rhetoric based on social belief and value (Shen 1983). Although Perelman’s new rhetorical jurisprudence remains controversial in both jurisprudence and linguistics, it still offers a unique perspective to learn judicial practice and rule of law ideal. Another influential force in the linguistic turn of jurisprudence is from Germany, including F. Schleiermacher (1768–1834), Heidegger (1889–1976), Hans-Georg Gadamer (1900–2002), who has created philosophical hermeneutics. It has been hailed as an alternative way of interpreting the world besides scientism and methodology. Hermeneutics, as an auxiliary discipline to theology and jurisprudence, belonged to marginal discipline in ancient Greece, just as grammar, rhetoric, logic and poetics. Considering from hermeneutikos, its Greek etymology, it involves three interrelated meanings: expression, interpretation and translation. Medieval hermeneutics interprets the meaning of biblical classics in order to understand God’s

30

3 Research on Legal Language

intentions embedded in the Bible. Its methods include textual criticism, syntactic analysis, and contextualization. Its object refers to the “original meaning” hidden behind the words. With the boom of European Renaissance and the Religious Reformation, hermeneutics is no longer confined to interpreting the Bible, but extends from art, law, history, and literature to all areas that interact with mankind and the world. Nowadays, hermeneutic approach is widely accepted and applied, thus gradually becoming a general methodology of the humanities. Modern hermeneutics is a philosophical and cultural trend popular in the west after the 1960s, with “understanding” at its core, being a theory of probing into the understanding and explanation of meaning. Heidegger, the master of hermeneutics, starting from traditional hermeneutics, has transformed it from the passive medium style of language tool into the being of language ontology. Therefore, it turns hermeneutics from spiritual science into a kind of philosophy. Gadamer discovers the respective functions of the author, text and reader, with emphasis on the historicity of the text. He argues that all texts are historical in nature, as they are created in a particular historical context. When reading them, readers are subject to “preconception” and “prejudice”. As a text is always the product of society and history, readers may not understand the author’s intention despite a good grasp of its social and historical background. Legal interpretation entails loyalty to the text, which requires the interpreter to explore the socio-historical limits of the text and its author. The normative content of the law must be formulated by the existing circumstances to which it applies. To understand the normative content correctly, the legal practitioners must have a historical understanding of the original meaning. The jurists cannot ignore the original intention of the lawmaker, nor can they be entirely restrained by it. The jurist should also consider the historical significance of the law each time it is applied after it has been made, but equally free from such limit. The jurists merely “supplement” meaning instead of creating it. Their task is to “ensure the uninterrupted continuity of the law and preserve the tradition of legal thought” (Gadamer 1999). Hermeneutic theory is firstly targeted towards the understanding and interpretation of works of art. However, there are many similarities between the analysis and interpretation of works of art and legal texts in the process of application by the judge. Hence, modern hermeneutics serves as a reference for the application of law. Influenced by philosophical hermeneutics, German jurists such as Kaufmann, Hassmer and Larenz actively used its methods in their studies on the philosophy of law. “The jurists introduced philosophical hermeneutics to substantiate their claims consciously or unconsciously. This is typically manifested by the debate on the certainty and uncertainty of law and the objectivity and non-objectivity of legal interpretation” (Xie 2003). Another influential school of jurisprudence in the linguistic turn is the European structuralist semiotic jurisprudence, which espouses Saussure’s semiotic theory. Semiotics, by definition, is the theory and method of studying signs. European structuralist semiotics is created by Swiss linguist Ferdinand de Saussure. From the perspective of Saussure, Foucault and others, language is no longer a product of human practice, but in itself a mode of practice, exerting a decisive impact on other human practice. Furthermore, some scholars regard language as a semiotic system,

3.1 The Linguistic Turn of Western Jurisprudence

31

an “invisible hand” dominating the pattern of human development and the difference of historical background. Semiotic jurisprudence comes into existence when semiotic methods being applied to the law. In its most abstract sense, the characteristics of European structuralist semiotic jurisprudence can be briefly summarized as follows. Firstly, law is a sign. It not only refers to the concept, principle and theory of law, but also a process of reasoning and realization, as well as a specific provision. Secondly, legal signs have their own structure, including a surface structure and a deep structure. The former means what is presented on the surface of law while the latter means what generates the law and creates the meaning. Sometimes, it is referred to “grammar” or “descriptive grammar”. The intermediate structure is what lies between the above two structures. It is sometimes called social level, a form of social knowledge containing narrative types and social evaluations. Thirdly, the process in which the meaning of legal signs occurs is the structures and functions through which the meaning of the law is expressed (Lv 1999). Since its inception, semiotics has been regarded as a methodological approach and a meta-science that can explain any problems. The semiotic analysis of legal theory includes both the semiotic analysis of legal concepts and terminologies, as well as legal theories and doctrines. In other words, signs represent legal phenomena, concepts and doctrines. The legislators’ activities are a process of putting signs into function. Therefore, the process in which judges decide cases is full of signs. In short, the law itself is a sign. The legal activities are a process of communicating signs. Semiotic jurisprudence aims not to establish a complete law theory nor plump the “truth” of law, but focuses on how the meaning of law is formed. To be more specific, it offers a new approach and paradigm for law studies rather than a complete theory. In a word, the linguistic turn of jurisprudence has revolutionary significance to the paradigm of legal research. It encourages people to reexamine language and stop treating it as a tool. First, it reveals the importance of research on the meaning of legal terms and concepts that are tools for legal thinking and expression. Whether their meaning is clear and reasonable determines whether legal thinking and expression are correct and effective. Therefore, the study of legal concept, especially of basic concept, should become an important content of the philosophy of law. Second, it emphasizes the need for linguistic awareness in legal research. In the process of legal thinking and expression, legal researchers must have consciousness of correct use of language, to ensure the meaning of language is clear and consistent, and avoid confusion of thought caused by non-standard language. Finally, it demonstrates a new approach to the study of legal concepts. Linguistic analysis is to confirm, select or give the meaning of words and concepts by analyzing the elements and structure of language and examining the etymology, context and lexical clue and concepts, rather than directly define words and concepts abstractly and arbitrarily (Huang 2000). The paradigm of “linguistic turn” injected new vitality and vigor into legal research and contributed to the real postmodern turn of legal research. The faith in the traditional legal kingdom has been broken, the discourse mystery of legal language has been dispelled, and the relationship between legal practice and other practices has been unraveled. Thus, in the foreseeable future, this paradigm will occupy a more prominent place in legal studies. However, it is not unregrettable that although

32

3 Research on Legal Language

Western jurists has long paid attention to the research paradigm of linguistic turn, Chinese scholars have generally paid insufficient attention to it, let alone applied it for research and investigation. The reason for this is partly related to the lack of scholars’ academic literacy, but more to do with methodological defects. It can be said that “in the (contemporary Chinese) research of legal concept and category and even major jurisprudential debates, there are many occasions of opposing views … The reason and focus of arguments often lie in the ambiguity of concepts and categories”, but “if the two parties involved in the discussion are good at using semantic analysis to find out the linguistic differences of the same word, concept, and proposition …, some arguments can be avoided, clarified or resolved (Zhang 1996)”. This requires legal researchers to make a linguistic turn in the paradigm of semantic analysis. On the one hand, they should examine the lexical clue, context and meaning and the information it contains; on the other hand, it is necessary to conduct interdisciplinary discussions on multiple linguistic domains to feel the diversity of the world. After all, “jurisprudence has a series of bilateral or multilateral issues with other disciplines, and it needs to communicate, dialogue and cooperate with philosophy, history, economics, political science, sociology, ethics, logic, behavioral science and other disciplines” (Zhang 1996). The linguistic turn of western legal studies once again shows that legal studies cannot be interpreted or defended by legal professional groups only from their own standpoint, but must be analyzed across multiple domains and linguistic spaces. Thus, the discussion of jurisprudential in the future is, and must be, “a debate spanning multiple domains that are mutually incommensurable, and multiple linguistic games (Ryuichi & Zhou 2000)”.

3.2 Evolution of Legal Language Research Methods The study of law can be traced back to ancient Greece. Generally, it can be divided into the following stages: first, theological stage; second, metaphysical stage; third, positivism stage. Later, the positivist tradition has been divided into analytical positivism and social positivism. By the second half of the twentieth century, social positivism was gaining acceptance, and it valued and absorbed the research achievements of linguistics in the twentieth century. For example, Glanville Williams in the United Kingdom and Watter Probert in the United States have noticed the ambiguity in the study of legal semantics and the emotional color of legal terms. Probert even advocated “word-consciousness” to lawyers and judges and regarded language as a major tool of social control. In this way, justice is defined as the choice of different premises guided by words. The emphasis on semantic research has produced “semantic jurisprudence” (Chen 2000). Although legal research did not shift its focus to semantic research until the twentieth century, it has been a long history of discussing the relationship between law and language. In this process, research methods of legal language have mainly gone through three stages: the rhetoric tradition stage, the positivism research stage

3.2 Evolution of Legal Language Research Methods

33

and the sociological research stage. The first two stages focused mainly on traditional research of legal language, and the third stage, on the sociological research of legal language.

3.2.1 The Rhetoric Tradition Stage In the rhetoric tradition, language is studied as a tool, and the main task of rhetoric research is to explore the art of using language for different communication purposes, that is, to discuss only the characteristics and appropriateness of language. Aristotle defined legal language as a skill of persuasion. Cicero also believed that legal language was “useful speech”. An important purpose and motivation of the research at that time was to make legal language understandable to ordinary people beyond judges and lawyers. From the perspective of rhetoric tradition, the study of legal language should regard language as an act, and it is restricted by social context. The view is very worth learning. They believed that fact is not the only factor that determines semantics and that meaning is determined by collective acts such as political organizations, court decisions, and ceremonial occasions. In the twentieth century, Belgian linguist and philosopher Perelman’s new rhetoric philosophy of law, to some extent, followed this method of emphasizing the specific context in the use of legal language, rather than one-sided formal logic. Perelman took the regulation of “no vehicles into the park” as an example, as aforementioned, to illustrate the application of his so-called new rhetorical legal thinking to the judicial process. However, the fatal weakness of the study of rhetoric traditional legal language is that language will be influenced by cunning and capricious people, which is also the fundamental reason for its decline.

3.2.2 The Positivism Research Stage After Aristotle, the study of legal language developed in the direction of logical positivism, and focused on the study of written language. By the mid-nineteenth century, influenced by the extreme positivist school of jurisprudence, or known as pure jurisprudence, this field of study viewed the law as a closed system without considering any subjective, moral or political factors. The study of legal language was mainly the study of legislative language and legal texts, focusing on the wording, syntactic structure, punctuation and characteristics of legal language. On the whole, this kind of research treated legal language as an object, regardless of the process of discourse generation and understanding of discourse participants. The typical representative is David Mellinkoff, whose Legal Language is of great significance in the history of legal language research. First, this is the first masterpiece with systematic, comprehensive and in-depth discussion on Anglo-American legal language. Second, the book gave a huge boost to the “plain English movement” in law. In

34

3 Research on Legal Language

his book, Mellinkoff, with over 500 pages, outlines the characteristics of AngloAmerican legal languages, traces the historical origin, development and evolution in the United Kingdom and the United States, and reveals the historical reasons for the formation of current status of legal language. He summarizes the characteristics of Anglo-American legal languages as follows: 1. frequent use of common words with uncommon meanings; 2. frequent use of words commonly used but now rare in Old English and Middle English; 3. frequent use of Latin words; 4. the use of Old French and Anglo-Norman languages that did not enter common vocabulary; 5. the use of argots; 6. the use of terminologies; 7. extensive use of formal words; 8. deliberate use of words with uncertain meanings; 9. too much attention to accuracy. Besides, he summarizes the general style of Anglo-American legal language as vague, pompous, redundant and tedious. The same research features are also reflected in Investigating English Style. The weakness of legal language research in this stage lies in that legal language is regarded as a closed system, excluding sociality that is an important characteristic of language. Sociality is of dual importance to legal language. First of all, language has sociality. Language itself means thought and cultural tradition, which is also a component and the symbol of culture. Only by putting language into a specific ideological and cultural tradition, combining it with the cognitive system, evaluation system, mentality system and behavior pattern system that constitute the overall social culture, and conducting multi-dimensional and systematic analysis on it, can we truly understand the connotation and significance of legal language. Secondly, law is the product of class society and is used to regulate social activities and behaviors. Law, since its birth, has been branded by society. Therefore, ignoring social factors when studying legal language is insufficient to fully reveal the characteristics of legal language.

3.2.3 The Sociological Research Stage Due to the fatal defects of both rhetoric traditions and positivism methods, the research on the application of sociological methods to legal language has been left a living space. Since the 1970s, legal language research has entered a new stage in Britain, the United States and other countries. In this stage, the research was deeply influenced by socio-linguistics and other disciplines, and it focused on the social characteristics of legal language. Its characteristics are manifested in two aspects. On the one hand, a wide range of disciplines were involved, including anthropology, literature, law, linguistics, political science, psychology, sociology, and so on. On

3.2 Evolution of Legal Language Research Methods

35

the other hand, the focus of research has shifted from the study of legal texts and the study of language as objects, to the study of oral interaction of court discourse or legal activities, the study of discourse generation and understanding, and the study of language as a tool. Court trials, as a social phenomenon, are inevitably influenced by various social conventions. Legal linguists have successfully introduced social factors into the study of court discourse. They try to provide possible explanations for the distinguishing features of court discourse by analyzing the relationship between court discourse and various social factors such as power, gender, and culture. For example, in the past two to three decades, rape cases have received extensive attention from Western scholars. Rape is violence by men against women, which is originally a proof of the abuse of power by men, and proof of inequality between men and women. However, it has been a recognized fact in the legal community that the victim is often revictimized during the court trial. Early studies believed that the cause of the victim’s revictimization was the court’s cross-examination system and the lawyer’s inquiry on the victim’s past sexual history during cross-examination. As a result, there were calls in society to improve the trial structure, to prevent lawyers from presenting the victim’s past sexual history to the jury, to prevent the victim’s real name from being reported, and to keep outsiders out of the courtroom. And the court has indeed made reforms in this regard. However, according to the analysis and research of Matoesian, O’Barr and other people, based on a large number of rape cases, especially the audio transcription corpus of the trial of “William Kennedy Smith” a sensation in the United States, it shows that the answer to the problem of victimized women’s revictimization in the trial should not be found in the structure of the court trial, but in the micro details of the interactive language of power use. Matoesian believed that the second victimization of women from the level of social structure reflects the patriarchal value, as to determine the meaning of language behavior, one must first judge the nature of society. O’Barr, argued that in rape trials, the jury’s concern is whether the situation of dominating and being-dominated exists, especially when men and women are acquaintances. If a man dominates a woman, it is rape; otherwise, it would be regarded as the woman’s consent to sexual intercourse or adultery. In court trials, the language strategies used by lawyers, usually men, were all dominant, designed to serve the suspects accused of exercising dominance. In other words, a woman who told the situation of being physically dominated by a man was dominated by another man’s language in court. Thus, in this sense, the mechanism of revictimization of women was related to language (Liao 2004). Danet, O’Barr and other scholars have also studied the power of witnesses and defendants, and their conclusion was that witnesses had little or no power in court. Luchjenbroers’ analysis of the transcribed corpus of a 6-day murder trial in the Supreme Court in Melbourne, Australia, showed that witnesses in court provided the jury very little information. In the 1970s, the Language and Law Project at Duke University extensively studied the language of witnesses. Those studies have found that many witnesses speak with a “no-power” style, characterized by the extensive use of evasive and uncertain language (i.e. I think, sort of), hesitant words (i.e. uh, well), interrogative intonation (i.e. a rising tone when answering questions, indicating uncertainty), and reinforcement (i.e. very, surely).

36

3 Research on Legal Language

This style is more likely to be used by women and people of low socio-economic status, while well-educated people speak with a “power” style. Their research also found that although witnesses generally have little power in court, the more powerful their words are, the more credible and persuasive they are, and the more likely they would be accepted by the jury. If defendant speaks with standard, courteous, and complete sentences, they are more likely to be acquitted. In short, in court, the information output of witnesses is limited, and the narration of criminal facts is not mainly completed by witnesses who have little power, and the power of witnesses is closely related to language (Hu 2004). The three stages of legal language research reveal the research path of legal language from different aspects, which is helpful for people to observe and think about language and legal issues from different angles. Since the sociological research stage expands the research focus from language to speech, and social factors are included in the research scope, people can reveal the inextricable relationship between law and society from the perspective of language, and the research on legal language will be more comprehensive. This is probably the main reason for the rise and prosperity of legal linguistics, which is also the conclusion of legal language researchers. With the dynamic and developing legal language, and people’s understanding of legal language is also endless. Whether it is traditional research or sociological research, the drawback is that they all stay on the “objective” description and presentation of the “facts” of the linguistic phenomenon. According to these studies, language seems to be a neutral expression tool, which can objectively reflect the material world and human society. But this ignores the simple fact that science is carried out by scientists, who have their own views, interests and ideologies just like anyone else. Language is not as transparent as traditional linguists think. It contains subjective factors such as the speaker’s attitude and ideology. When language users make choices among many options, they often incorporate subjective attitudes into language, consciously or unconsciously. Because this subjective attitude has been naturalized in language, it is generally not detected. In Heidegger’s words, it is the words that do the talking, not the people (Hawkes 1987). The theoretical framework of critical social sciences (including critical linguistics) proposed by Habermas and other scholars provides a tool for further research on legal language. Halliday also believes that critical linguistics is a kind of instrumental linguistics, and language is studied in order to understand other things such as social systems (Xin 2004). The task of critical study of legal language is to reveal the value system and ideology hidden behind it. Some scholars believe that the study of subjective factors in language is extremely important to the study of legal language, especially the study of court discourse, because legal cases are decided in large part by language as evidence. Facts cannot be reproduced, only through people’s memories and narratives to discuss the past events. And the language of recollection and narration itself has subjective attitude. If we treat it as an objective fact, we risk being misled and manipulated by language (Chen 2000). For example, in the United States, people hold different views on whether abortion should be allowed. Some people think that allowing abortion upholds women’s rights and respects the free will and wishes of individuals. Others

3.3 Forensic Linguistics and Its Research

37

argue that allowing abortion is inhumane and does not protect the fetus’s right to life. In a court trial in an abortion case, a prosecutor called the organism, which was aborted from the woman’s womb, a “baby”, while a witness, the doctor on trial, insisted it was only a “fetus”. Their conversation was as follows. Attorney: You didn’t tell us whether you determined that the baby was alive or dead, did you, doctor? Witness: The fetus had no signs of life. This is typical of different linguistic perspectives on the same thing. This different perspective and statement are of important legal significance. If the aborted is a “baby”, it is murder; if it is a “fetus”, there is no possibility of murder and no suspicion of crime. The expression of such subjective attitude exists not only in the choice of vocabulary, but also in grammar and pragmatics. In short, critical studies of the subjective attitude expressed in language help judges and juries reach fair verdicts. Language is the symbolic system of thoughts and cultural traditions. Law has a Proteus-like face, and people’s understanding of legal language is a world without end. No single method can become the dominant or sole method in the study of legal language. Legal language research draws on the research results of critical linguistics to make a critical study on legal language, which is a supplement to traditional and sociological research methods. The emergence of various methods adds a multi-angle thinking approach to legal language research. The historical evolution of research methods of legal language shows that it is the historical development trend to establish multiple, comprehensive and integrated research methods, and it is also the main task of forensic linguistics and legal linguists.

3.3 Forensic Linguistics and Its Research The 1980s and 1990s saw a rapid development of linguistics. Many interdisciplinary linguistics, such as psycholinguistics, sociolinguistics, neurolinguistics and computer linguistics, emerged at the historic moment. In this context, the relationship between law and language became closer, and linguistics began to penetrate into the judicial field, which just proved McCormick’s assertion that law is nothing but a linguistic learning.

3.3.1 Research on Anglo-American Legal Linguistics In Anglo-American society, criminal cases and economic disputes arising from the high-speed operation of the industry and commerce are often related to language. This objectively requires the active involvement or participation of linguists. At the invitation of the judicial department, the plaintiff or the defendant, linguists often take

38

3 Research on Legal Language

the role of “expert witnesses” to analyze and study relevant linguistic phenomena or corpus and give “expert testimony” or explanations, which will be submitted to the court, and then the judge and jury decide whether to accept them or not. This is the language evidence in Anglo-American courts. In general, linguistic evidence includes two types: identification evidence and interpretive evidence. Identification evidence is to identify whether the relevant person said or wrote something; interpretive evidence is to interpret what a particular speech means. The linguists are generally tasked to identify the speaker in the recording; analyze the style of the suspicious text, extract language features, and finally determine the author of the suspicious style; use vocabulary and grammar methods to determine whether it belongs to plagiarism and resolve copyright disputes; use semantics to resolve trademark or patent disputes or determine whether intellectual property rights are infringed; determine whether the statements made by criminal suspects, people involved in the case or even law enforcement or judicial personnel are true or deceptive, as well as the true intention or motive of the discourse through discourse analysis of written or oral corpus; and so on. All these works are featured that the language analysis generally starts from and serves specific cases. When a linguist embarks on an analysis of a case, the first step is to identify the problem and the last step is to report the analysis results. The result of linguistic analysis, like any other piece of judicial evidence, is determined by lawyer’s own strategy. Linguists can also testify in court when needed, explaining their research results directly to judges and juries as experts. As for the intermediate link between finding the problem and reporting analysis results, the approach taken by linguists depends on the original materials, and the fields involved mainly include phonetics, style, discourse structure and meaning (Hu 2002).

3.3.1.1

Analysis on Phonetic Feature

Sound is the carrier of language, like its material shell. Phonetics is to study the theories and characteristics of the generation, transmission and acceptance of speech sound. The main reason for the rise of legal phonetics is the study of acoustic spectrum and the application of acoustic spectrum images in the late 1970s. Crime is not only a social phenomenon, but also an activity carried out by human beings. The recording of the voice of the suspect directly reflects the motive, purpose and the whole process of the perpetrators. Acoustic spectrum images are images of what people say on paper or a screen instead of hearing, and the concept of voiceprint and fingerprint was put forward around that time. It was believed that each person’s voice is unique, like a person’s fingerprint. However, at present, the phonetics community is generally skeptical about this, arguing that individual phonetics is not consistent due to various factors (Coulthard 2013). Voiceprint can be used to tell whether a certain voice belongs to someone; or to exclude someone from a group of people on the basis that he does not have a certain set of phonetic features or has different phonetic features, thereby eliminating suspicion about him due to his accent. The latter approach is often more persuasive than the former. Speech recognition involves lots of content

3.3 Forensic Linguistics and Its Research

39

and the situation is more complicated. Phoneticians need to rely on instrument and equipment, as well as their professional intuition to help identify the voice or speaker in cases such as threatening phone calls, phone calls claiming responsibility for a certain event, and sometimes identify the unclear content in a conversation recording. Case 1: The defendant was accused of making phone threats to Los Angeles airlines, threatening to blow up the plane. Mr. LaBeouf, a linguist who analyzed the voice recordings, noted that the caller pronounced the word “that” with a subtle East New England accent, and the suspect, a New Yorker, could not have accidentally uttered the word. Based on this evidence alone, the suspect was acquitted. Thus, it can be seen that the results of linguistic analysis are very important, which can determine a person’s fate (Zhu 1997). In recent years, with the rapid development of economy, trademarks, especially wellknown ones, have become an important intangible asset of enterprises. Conflicts and infringement caused by trademark phonetic similarity have become increasingly prominent. In December 2002, Microsoft sued Lindows.com Company for infringement of the Windows trademark, claiming that “Lindows” and “Windows” were only one character apart and that Lindows.com Company was in an apparent attempt to confuse the public and mislead the vast number of Windows users. Thus, it asked the court to shut down Lindows.com and stop the distribution activities of Lindows operating system. Approximate trademark is composed of three elements, including pronunciation, shape and meaning. Accordingly, the similarity of pronunciation requires phonetic analysis. In foreign countries, phoneticians are often involved in trademark infringement cases. They apply the same techniques as voice recognition to conduct phonetic analysis of trademark, identify trademark names with similar pronunciation, and provide phonetic evidence for resolving trademark disputes (Liu 2003: 128).

3.3.1.2

Analysis on Stylistic Feature

Stylistic feature analysis, also known as written analysis of the court, mainly refers to the evidence study of written spelling, diction, grammatical form and syntactic structure, that is, to reveal the similarities and differences between two texts from the perspective of spelling, diction, grammatical form and syntactic structure in a comparative way, so as to judge whether a certain text comes from someone. Known as the written author identification, it includes police transcripts, witness testimony, letters, suicide notes, and so on. Case 2: A man in Australia was accused of murdering his wife. The man presented police a suicide note he claimed was left by his wife. Since the police could not find his wife’s body, determining the authenticity of this note became the key to his conviction. Linguist Eagleson managed to collect the written text of the man and his wife, and then compared the suicide

40

3 Research on Legal Language

note to make a detailed analysis from the spelling (i.e. error rate, noun case, etc.), grammatical form (i.e. verb present tense and past tense zigzags, etc.), syntax (i.e. sentence structure, etc.) and the use of punctuation marks. It turned out that the features of the man’s written text were very similar to those of the suicide note, while those of his wife were very different. Finally, the man had to plead guilty (Eagleson 1994). Case 3: Bentley, a 19-year-old British teenager, was executed on suspicion of murder in the early 1950s. Bentley is illiterate and has a low IQ. He and his friend Craig were involved in a burglary, during which Craig shot and killed a policeman. Bentley was caught by police at the time of Craig’s shooting, but he was convicted of participating in the killing and put to death. However, Craig was not sentenced to death because he was under the age of consent. Twenty years after Bentley was executed, Malcolm Coulthard provided an important piece of evidence in a plea. He analyzed Bentley’s statements to the police and found that some syntactic structures, such as “subject (+verb) + then”, were unlikely to be said by Bentley, and that at least some key parts of this statement were probably fabricated by the interrogating police (Coulthard 2013). This evidence was crucial to the British Court of Appeal’s decision in 1998 to overturn Bentley’s conviction (Coulthard 2013). 3.3.1.3

Analysis on Discourse Structure

The purpose of a court investigation is to find out “who” “did what” in the past. Court discourse analysis is to analyze the discourse structure by studying relevant corpus, find out the speech behavior of the actor, and determine the real situation of the case and the intention and motivation of the discourse. Discourse has many characteristics, such as topic, response, discourse strategy, intonation marker, pause length, turn-taking, discourse rules, the beginning and ending of topic, topic conflict, and so on. In the aspect of discourse analysis, the most influential scholar is Roger Shuy, former dean of the Linguistics Department of Georgetown University. Shuy, as a consultant to government agencies such as the FBI and the Department of Justice, is often involved in discourse analysis activities on a range of major cases. So far, Shuy’s discourse analysis evidence has covered nearly 500 cases in 26 states in the United States. His analysis of Davis’s murder of his wife initiated the application of discourse analysis in the judicial field. Case 4: Davis, a millionaire, was accused of trying to use an employee to murder his divorced wife and the judge who awarded him the divorce. The employee reported the incidence to the FBI, which, in order to obtain evidence, provided the employee with a recording device and asked the employee to try to talk to Davis about it. As it turned out, the recorded conversation did contain Davis talking about his wife and the judge. Therefore, the recording was used as evidence against Davis. Shuy studied this at the request of the court, finding that much of the recorded conversation had

3.3 Forensic Linguistics and Its Research

41

been induced. When the employee mentioned Davis’s wife or the judge, Davis either did not respond or changed the topic. It showed that Davis was not interested in the employee’s topic, and when he did answer, he did so with a perfunctory attitude. Moreover, during the whole conversation, the employee raised the topic more than 20 times, while Davis less than ten times. Obviously, the employee was driving the conversation, and the fact that the employee’s conversation repeatedly led to Davis’s wife and the judge suggests that the employee was repeatedly trying to record what he wanted. Shuy analyzed these findings in front of the jury. In the end, the jury found Davis not guilty (Shuy 2001). 3.3.1.4

Meaning Evidence

Unlike the evidence in phonetics, style, and discourse structure, the evidence provided by linguists in terms of meaning is interpretive evidence, not identification evidence. Meaning here refers to both semantic and pragmatic meaning: either the several possible meanings about a word or expression, or the meaning in which a controversial speech is most likely to be understood in a particular context. For example, there is a controversial point in the Bentley murder case mentioned above, in which Bentley shouted to Craig, “Let him have it, Craig.” before Craig opened fire on the police, (Bentley himself denied that he ever said this.) This sentence can be interpreted in two different ways: “shoot him” or “hand over the gun”. It was the different interpretation of this sentence that became the key evidence in determining Bentley’s role in the case. If it means the former, then he was involved in the murder; if it is the latter, then he is not guilty. The judge who convicted him at that time understood it as the former (Coulthard 2013). Several years ago, a famous French ballerina had her legs insured by an American insurance company. Unfortunately, she hurt her thigh in one of the moves. The word on the insurance company’s policy is the French word “la jambe”, which can be interpreted as “leg” or “calf” in English. The insurance company refused to pay out on the ground that the word mostly refers to the calf. Even with the lawsuit, it’s not conclusive. Finally, it was the French Academy of Sciences who pointed out, from the perspective of dictionary interpretation, that the word generally refers to the leg including the thigh and calf. Then, a conclusion was reached. The most typical case of meaning evidence is McDonald’s trademark infringement case. Case 5: In 1987, McDonald’s Corporation sued a chain store McSleep Inn, for infringement. The case hinges on determining the use of the keyword “Mc”. The brand name of McDonald’s is composed of a prefix and a word. McDonald’s claimed responsibility for the formation of the prefix “Mc”, and they also spent money on advertising. From a linguistic point of view, McDonald’s was to protect not only a noun, or a string of nouns, but the derivation of “Mc”, a specific bound morpheme. Linguists, Lentine and Shuy, selected 150 articles from major newspapers including Time

42

3 Research on Legal Language

Magazine, Washington Post and Fortune and counted the words using the morpheme “Mc”. The result showed that 94 out of 150 articles had nothing to do with McDonald’s. People use the prefix “Mc” as an common morpheme. The morpheme “Mc” has the semantics of “basic, convenient, standardized and cheap”, and has no substantial connection with McDonald’s fast food. So, the “Mc” in McSleep Inn is not the “Mc” in the registered trademark of McDonald’s. Therefore, the company does not infringe (Lentineg and Shuy 1990). Since the 1970s, the study of legal language has entered a new stage in Britain, the United States and other countries, which is deeply influenced by sociolinguistics and other disciplines. The basic starting point of sociolinguistics is the view of language as a social phenomenon. The study of legal language in this period paid more attention to the social characteristics of legal language. On the one hand, a wide range of disciplines were involved, including anthropology, literature, law, linguistics, political science, psychology, sociology, and so on. On the other hand, the focus of research has shifted from the study of legal texts and the study of language as objects, to the study of oral interaction of court discourse or legal activities, the study of discourse generation and understanding, and the study of language as a tool. According to Liao Meizhen (2004), the reasons for these situations can be attributed to the following four aspects. First, more and more scholars are aware of the key role of language in law and legal activities. Second, The achievements of the “field work” in the field of law made by some sociologists, anthropologists and sociolinguists have stimulated interest in legal language research. Third, many scholars have recognized that legal activities are rich and unique language resources, such as Jefferson and Pomerantz, the anthropologists of cultural methodology. Forth, after the 1970s, the development of pragmatics, especially the conversational analysis initiated by folklorists such as Austin and Garfinkel, enabled linguists stop focusing on written language. They no longer focused on the language category below the sentence, limited to the study of the language system itself, but broke through the barriers of sentences and enterer the vast world of discourse. An increasing number of scholars attached importance to the use of language in social practice and the role and analysis of on-site impromptu discourse and corpus. During this period, the interest and focus of legal language researchers mainly focused on three aspects: (1) legal language as a process; (2) legal language as an instrument, that is, observing the society and implementation of power through legal language; (3) research on the application of linguistic evidence in the involvement of linguists in legal interaction (Liao 2004). Under the guidance of sociological theory, the research on legal language is becoming more comprehensive, with the research focus of legal language expanding from language to speech, and involving the social factors, and it’s helpful to reveal the various relationship between law and society from the perspective of language,

3.3 Forensic Linguistics and Its Research

43

3.3.2 An Overview of the Research of Forensic Linguistics in China Due to the influence of Confucianism and the fetters of feudal hierarchy, the ancient legal system in our country was basically an absolute monarchy, and there was no court debate. The ancient legal language was still in its infancy and had not developed at all. Even if there was a small amount of legal language, it was only a small number of judgments with the penalty as the core, and interrogation made by the judge who alone has the say in court. It was not until the Ming and Qing Dynasties that there were respect, praise and assiduous study of legal language in China. For example, Li Yu, a famous dramatist and writer in the late Ming and early Qing Dynasties in China, served as an assistant to the prefect of Jinhua, Zhejiang Province, dealing with criminal litigation, and he was quite insightful about legal language research. He believed that the use of legal language should be prudent, without any disrespect. In his words, “凡审奸情, 最宜持重。(It is most appropriate to be prudent in hearing all cases of adultery)”, and “切勿以绮语代庄, 嬉笑当骂。(Do not speak frivolously instead of behaving solemnly and whoever giggles during the interrogation should be condemned.)” He also pointed out the importance of body language. Wang Youhuai, a famous jurist and adviser in the Qing Dynasty, also published many incisive and unique opinions on litigation and legal language. His book Brief of Handling Cases ( 《办案要略》 ) outlines the characteristics of legal language of “confession (叙供)” in a relatively systematic and scientific way (Wang 1985). After the founding of the People’s Republic of China, socialist democracy and legal institution have provided a broad stage for Chinese court debate, and legal language has also developed to a large extent. However, the development of legal language was again restricted due to some political movements after the founding of New China, and it’s never been a smooth path for the development of the court debates in China. The study of legal language in China really began to flourish in the 1980s, with only a short span of over 30 years. After the Third Plenary Session of the 11th Central Committee of the Communist Party of China, the construction of socialist legal system stepped into a new phase, and socialist democracy and the legal system gradually improved. At this time, the national legislature, judiciary organs, administrative bodies, law firms, notary offices, arbitration committees and other legal institutions and law schools were facing a large number of problems related to the use of language, which put forward urgent requirements for the study of legal language. The first to dabble in the field of legal language research were Chinese teachers of institutes of political science and law all over the country. In 1982, law schools and departments across the country cooperated to compile the Course of Chinese Language, in which the chapter “Rhetoric” made a preliminary discussion on the characteristics of legal language from the perspectives of “accurate and appropriate words”, “smooth language”, “concise sentences” and “plain writing style”. The first works that proposed the establishment of a scientific system of legal language, on the basis of comprehensive study of legal language, include A Brief

44

3 Research on Legal Language

Introduction to Legal Linguistics by Chen Jiong and Several Issues on Legal Style by Pan Qingyun, etc. In the recent decades when the legal language in China is really flourishing, a number of influential monographs have appeared, such as The Art of Legal Language (Pan Qingyun, Xuelin Press, 1989), Legal Rhetoric (Pan Qingyun, Liaoning Education Press, 1989), Legal Language (Qiu Shi, China Prospect Press, 1990), Exploration of Legal Style (Pan Qingyun, Yunnan People’s Publishing house, 1991), Practical Legal Eloquence (Deng Yuanjie, etc., Higher Education Press, 1991), Legal Words and Techniques (Zhou Guangran, China Procuratorial Press, 1992), The Concept of Legal Language (Walgen, China University of Political Science and Law Press, 1995), The Art of Winning Business Negotiations (Guo Xiuhong, Shandong People’s Press, 1995), The Art of Winning Negotiations (Xie Chengzhi, Xuelin Press, 1995), A Course in Legal Linguistics (Wang Jie, Law Press, 1997), Cross-century Chinese Legal Language (Pan Qingyun, East China University of Science and Technology Press, 1997), Legal Language Research (Wang Jie, Guangdong Education Press, 1999), Legal Language and Speech Research (Jiang Jianyun, Mass Press, 1995), Legal Linguistics (Sun Luhua et al., China University of Political Science and Law Press, 1997)), and so on. In addition, there are two books worth mentioning. One is the Courtroom Questions Responses and Their Interaction, written by professor Liao Meizhen and published by Law Press in 2003. The book consists of 11 chapters with half a million words. Professor Lu Jianming said in the preface of the book, “There is no doubt that the study of courtroom questions and responses, especially the court discourse in the interaction of questions and responses, has great practical significance and theoretical value for improving the quality of judges and lawyers, as well as for the ontological study of Chinese. This book fills the gap in this area.” From my perspective, the book has a higher level of theoretical exposition, pays attention to the collection and analysis of corpus with effective argumentation, and attaches importance to the methods and methodology. The other is the Language and the Law-Linguistics Research in the Legal Field, written by Wu Weiping and published by Shanghai Foreign Language Education Press in 2002. This book consists of 13 chapters with 180,000 words, which emphasizes the study of judicial language, shows originality in example illustration, and provides unique insights in bilingual research on courtroom translation and linguistic evidence (Chen 2004). In June 2002, the First Symposium on Language and Law in China was held in Changping District, Beijing. The holding of this conference marked the standardization of Chinese legal language studies, which has its own space in numerous academic groups in China.1

3.4 Conclusion

45

3.4 Conclusion Throughout the course legal language research in China and the West, we can find that it is consistent with the overall development history of linguistics, including the stationary study of legal language features (i.e. syntactic and lexical features), the dynamic study of legal language as a process (i.e. pragmatic research, discourse analysis), and the study of legal language as a tool (i.e. sociolinguistics research). With a deepening trend of legal language research, more fields and disciplines are involved in the study. In the recent decade, the foreign legal language study of our country has made great progress. There are three major research directions at present: first, the research on legal language ontology, such as the characteristics of legal language in vocabulary, grammar, rhetoric and other aspects, and the construction of a legal terminology system; second, the research on legal style, such as the language features of legal documents, and legal styles of legislation, justice, trial, court debates, investigations, litigation, etc.; third, the research on language in legal practice, such as discourse analysis, pragmatics, language variant theory, ethnology, cross-cultural communication, language translation for deaf-mutes and foreigners, bilingual dialects, and other applications in legal practice. However, the depth and breadth of the research are still far behind the needs of society and couldn’t meet up the requirements of practical work. Deficiencies still exist, mainly reflected in the weak applied research, inflexible research content, and single research method. As Liao Meizhen said, domestic researches basically stay at the surface of legal language, such as syntactic and lexical features, and the corpus is mainly legal text. In addition, few Chinese law practitioners and legal professionals study law and legal practice from the perspective of language (Liao 2004). In recent years, with the gradual improvement of China’s legal system and openness of legal procedures, these advances bring an opportunity to the in-depth study of legal language. The introduction of pragmatic theory in linguistics has provided a theoretical basis for the application of legal language. Along with the continuous advancement of jurisprudence and applied linguistics research, forensic linguistics, a new discipline, has attracted more and more attention from domestic scholars. The domestic research on legal language presents a new trend that theoretical research and practical research complement each other. A growing number of Chinese forensic linguistics scholars have begun to attach importance to the combination of legislative language research and judicial language research. They even participate in judicial practice, using the method of combining theoretical and practical studies to conduct a comprehensive and systematic exploration of legal linguistics. All these changes indicate the deepening and improvement of domestic research in this field. As Liao Meizhen (2004) pointed out, in view of the current situation of forensic linguistics research in China, we can predict that China’s forensic linguistics research will: have broader research fields with more extensive research content, which will bring about excellent research results combining theory and practice; have more practical research based on scientific and objective theoretical research, which will effectively promote the development of judicial activities and realize the effective combination

46

3 Research on Legal Language

of language and legal research; further develop the research on speech recognition; enlarge the academic community and promote the education of forensic linguistics. But anyway, the research of forensic linguistics in China must be based on the national conditions, and learn from and absorb other countries’ research achievements gradually, with the principle of the Chinese as the body and the Western as the use. Domestic research on legal linguistics should have move in-depth exploration, and find a way to study legal linguistics path that not only conforms to Chinese reality but also in line with international standards, so as to realize the Sinicization of forensic linguistics.

Note 1. At present, there are two associations of forensic linguistics in China. One is the secondary association under the Rhetoric Society of China whose secretariat is located at Guangdong University of Foreign Studies, whose members are mainly scholars in the field of linguistics, especially in the field of foreign languages. The other is the secondary association under the Chinese Association of Behavioral Law whose secretariat is located at the Beijing Institute of Political Science and Law, whose members are mainly scholars in the field of law, among whom government officials and lawyers are the majority.

References Chang, An, and Mingxin Zhu. 2003. “Linguistics diversion of law” and its inspiration to methodology of law linguistics research in our country. Journal of Qiongzhou University 3: 63–68. Chen, Tenglan. 2000. On the research methods of Western legal language. Fudan Journal (Social Sciences Edition) 2: 102–108. Chen, Jiong. 2004. A research commentary on China legal languages of more than twenty years. Journal of Guizhou University of Engineering Science 1: 1–4. Coulthard, M. 2013. On the use of corpora in the analysis of forensic texts. International Journal of Speech Language and the Law 1: 27–43. Dong, Xiaobo. 2006. Jurisprudent analysis on fuzziness in Chinese legislative languages. Applied Linguistics 4:82- 87. Du, Yanlin, and Wenxian Zhang. 2001. The postmodern method and the turn of the study of law. Jinling Law Review 1: 30–36. Eagleson, R. 1994. Forensic analysis of personal written texts: A case study. In Language and the law, ed. J. Gibbons. London: Longman Group UK Limited. Gadamer, Hans-Georg. 1999. Truth and method (volume I). Trans. Hong Handing. Shanghai: Shanghai Translation Publishing House. Hawkes, Terence. 1987. Structuralism and semiotics, trans. Qu Tiepeng. Shanghai: Shanghai Translation Publishing House. Hu, Zhiqing. 2002. Forensic linguistics and four fields of linguistic expertise. Contemporary Linguistics 2: 115–118. Hu, Haijuan. 2004. A survey of studies on courtroom discourse. Journal of Guangdong University of Foreign Studies 1: 8–11. Huang, Wenyi. 2000. Introduction to philosophy of law. Chinese Journal of Law 5: 3–16.

References

47

Lentineg, G., and R. Shuy. 1990. Meaning in the marketplace. American Speech 65 (4): 349–366. Li, Qirui. 2005. Legal research and methodology. Jinan: Shandong People’s Publishing House. Liao, Meizhen. 2004. A review of study of forensic linguistics abroad. Contemporary Linguistics 6: 66–76. Liu, Weiming. 2003. Forensic linguistics research. Beijing: Economic Press China. Lv, Shilun. 1999. Schools of the modern western jurisprudence, vol. I. Beijing: Encyclopedia of China Publishing House. Ryuichi, Nakayama, and Yongsheng Zhou. 2000. Model transition of jurisprudence in the 20th century. Foreign Law Translation and Review 3: 13–27. Shen, Zongling. 1983. Perelman’s legal thought of “new rhetoric.” Chinese Journal of Law 5: 75–80. Shuy, R. 2001. Discourse analysis in the legal context. In The handbook of discourse analysis. London: Oxford Blackwell Press. Wang, Youhuai. 1985. Brief of handling cases (annotated by Chinese teaching and research section, east China University of political science and law). Beijing: Qunzhong Publishing House. Xie, Hui. 2003. Science and interpretation: Two methods of legal philosophy research. Science of Law 1: 3–14. Xin, Bin. 2004. On the philosophical and sociological background of critical linguistics. Foreign Languages and Their Teaching 8 (1–3): 25. Zhang, Wenxian. 1996. Research on the trend of Western legal philosophy thoughts in the 20th century. Beijing: Law Press·China. Zheng, Qiang. 2000. General observation on postmodern jurisprudence in USA. Foreign Law Translation and Review 2: 44–53. Zhu, Wanjin. 1997. An introduction to sociolinguistics. Changsha: Hunan Education Publishing House.

Chapter 4

Legislative Language

Law is the embodiment of the national will. The purpose of national legislation is to maintain political stability and social order, so as to develop national political economy. In the legislative work, only by expressing the relevant norms in accurate language, providing the appropriate behavior model or standard for the society, can the law indeed function as the evidence to regulate people’s behavior and achieve the purpose of governing the country according to law. On the contrary, the inaccurate words and improper expression in legal language will lead to confusion so that people cannot distinguish right from wrong and might act in a confused way, or even provide a legal loophole to the opportunist, thus, the legislation work will lose its meaning. Therefore, legislative language is not only an important factor in legislation, but also the priority part of legal language. Legislative language functions as the expression carrier of national institution and social basic rules. The degree of public’s familiarity with legislative language is an important indicator of composing a positive legal environment, reflecting the stable level of the rule of law. Moreover, it is an embodiment of the social function of mature language style.

4.1 Legislation and Legislative Language Legislation is the process in which the legislature enacts, amends or repeals laws and administrative regulations by using legislative techniques in accordance with the provisions of the Legislation Law of the People’s Republic of China on the legislative subject, legislative authority, legislative procedure and other regulations. From the way of legislation, the legislation work includes enacting law, recognizing law, amending law, supplementing law and repealing law. The scope of law mainly includes the following three kinds: law, regulations and rules.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language, https://doi.org/10.1007/978-981-99-2633-6_4

49

50

4 Legislative Language

4.1.1 Law Law is the product of the state, which refers to the basic laws and ordinary laws promulgated by the ruling class through certain legislative procedures. It is the embodiment of the will of the whole nation and the governing instrument of the state. Law is the general term of the basic laws and ordinary laws, which shall be formulated, amended and promulgated in accordance with legal procedures by the legislature with legislative power and guaranteed to be enforced by the state. For example, the Article 62 of the Constitution of the People’s Republic of China (amended in 2004) stipulates that the National People’s Congress shall exercise the following authorities: 1. amend the Constitution; 2. supervise the implementation of the constitution; 3. enact and amend the basic civil and criminal laws and the laws of state organs and other laws. For another example, the Article 67 of the Constitution of the People’s Republic of China (as amended in 2004) stipulates that the Standing Committee of the National People’s Congress shall exercise the following authorities: 1. interpret the constitution and supervise the implementation of the Constitution; 2. enact and amend the laws except the laws which shall be enacted by the National People’s Congress; 3. supplement and amend partially of the laws enacted by the National People’s Congress without contradicting the basic principle of these laws during the intersessional period of the National People’s Congress.

4.1.2 Regulations Regulations are divided into two categories: administrative regulations and local regulations. Administrative regulations are general term for all kinds of regulations on politics, economy, education, science and technology, culture and foreign affairs, which are formulated by the State Council in accordance with the Constitution, laws and regulations for leading and managing the State’s administrative work. Local regulations refer to the general term of a local decree formulated by the people’s congress and the standing committee of a province, autonomous region, municipality directly under the central government, or of a city where the people’s government of a province or autonomous region is located, and of a large city approved by the State Council in accordance with the specific conditions and actual needs of its administrative region, under the premise of not contravening the Constitution, laws or administrative regulations.

4.1 Legislation and Legislative Language

51

4.1.3 Rules Rules can be divided into department rules and local people’s government rules. Department rules refer to the general term of provisions, measures, enforcement regulations, rules and other normative documents enacted by various departments under the State Council in accordance with laws, administrative regulations, decisions and orders of the State Council within the scope of their authority in accordance with prescribed procedures. Local people’s government rules refer to the general term of the provisions, measures, enforcement regulations, rules and other normative documents that are universally applicable to the administrative work of their respective regions, and are enacted by the people’s government of a province, autonomous region, municipality directly under the central government, or of a city where the people’s government of a province, autonomous region is located, and of a large city approved by the State Council in accordance with laws and administrative regulations and prescribed procedures. The legislation forms aforementioned, due to their different formulating and issuing authorities, different connotation and effects, are obviously different in the specific language use. Whereas, no matter what level of the legislation, as the carrier of legal norms, its language must share some similarities. We know that legal language can be divided into legislative language, judicial language, law-enforcement language and legal theory language, according to different stages of the formulation, implementation and research of law. Legislative language is a branch of legal language. As per the definition of legislative language, scholars have already put forward some arguments. Li Zhengyu holds that, legislative language is the language used in the laws and decrees enacted and promulgated by the legislature. It is not only an important content of legal language, but also an important component of legislative technique in jurisprudence. In addition to the differences in legal procedures, the language of regulations formulated by the organ authorized to enact administrative legislation is basically the same as that of law, which is quasi-legislative language. The language use of legal interpretation, between legal language and judicial language, shares more similarities with legislative language. Therefore, it is also put into the category of legislative language (Li 1998). Zhu Liyu believes that legislative language refers to the special language used to formulate and amend law. It represents legislative intentions, sets behavioral norms and forms normative legal provisions in accordance with certain rules (Zhu 2010). Liu Hongying argues that legislative language is the ideographic system of language used in the process of making laws, namely the language used in making laws (Liu 2003). Du Jinbang holds that legislative language refers to the authoritative text of laws, regulations, treaties and regulations recorded by language, mainly in the written form (Du 2004). Zhou Wangsheng states, legislative language is a specialized language used by the legislative subject to express legislative intentions, set legal norms and form normative legislative documents according to certain rules. It is also a special carrier for certain wills or interests to be expressed as statutory law or legal norms (Zhou 2004). All these studies and understandings undoubtedly have great

52

4 Legislative Language

reference significance, but there are still some problems. We believe that the core of legislative language should be language itself, that is, legislative language, just like the common language of the whole people, is an ideographic system that conveys certain content, follows certain forms and has certain functions. In short, legislative language is a variant of the national language, which is a linguistic ideographic system used throughout the whole legislative process and activities of making, recognizing, amending, supplementing and repealing law. When interpreting legislative language, we should make it clear that it is language in the first place and then comes its role as the content of a special field in national common language. As a language, it should conform to the rules of Chinese language and comply with relevant regulations. As a legislative language, it enjoys its own special purpose, scope, rules, standards, and so on. However, all of which should accord with relevant standards of Chinese language without violating the inherent principles. Therefore, when studying legislative language, we could draw on the research methods of linguistics from external and internal aspects. External aspect means to study from a macroscopic angle, such as sociolinguistics, language standardization, and so on. Internal aspect refers to the study from a micro perspective, that is, from the lexical, syntactic, semantic, pragmatic and other perspectives of legislative language. This kind of study is helpful to actively absorb the achievements in linguistics and summarize the rules and principles in order to improve the quality and efficiency of legislation and promote the construction of legal system. The essential attributes of legislation language are mainly reflected in the following aspects. Firstly, legislative language is a variant of the national language in the legal field. Legislation language is not a language with special language materials and independent structure system, but a language domain of the national language belonging to the style category, that is, a language variant of specific purposes, just like scientific language and literary language. Legislative language is the language used by the whole people in the process of formulating, recognizing, amending, supplementing and repealing laws, and has developed its own unique functions in this field. On the one hand, legislative language is a relatively stable product in the legislation field restricted by functional factors in essence, rather than an independent language beyond the national language. No language style has its own independent phonetic, lexical and grammar system, legislative language is no exception. On the other hand, legislative language has formed its own language system of meaning, usage and applicable rules on the basis of vocabulary, syntax and grammar rules in the national language. Secondly, legislative language is of high technicality. The study of legislative language unavoidably involves the issue of legislative technique, as the level of legislative technique will be reflected directly in the ability to use legislative language. Although the national language provides abundant “raw materials” for legislative language, how to screen and process them is more challenging. Only by means of language, could the legislative intention of the legislator be represented precisely and effectively in legal texts, which is an extremely technical work. To emphasize the technicality of legislative language is to attract the attention of legal draftsmen,

4.2 Stylistic Features of Legislative Language

53

improve the quality of legal texts, and thus express the legislative intention more accurately, by which realize the governance of good laws. Thirdly, legislative language is of high authority. Equality happens in all language, but legislative language exists in highly authorized legal texts, so legislative language is also of high authority. That is to say, the authority of legislative language is represented via the authority of legislative activities. First of all, the legislative subject has authority. Only the subject with legislation power can carry out legislative activities in accordance with its functions and powers. Secondly, legislative procedure is specific. Finally, law, the result of legislative activities, is compulsory and its implementation is guaranteed by the coercive force of the state with broad binding force.

4.2 Stylistic Features of Legislative Language The study of stylistic features is called “descriptive study of language style” in stylistics. The main purpose and task of this study is to describe the linguistic features and basic stylistic features of various stylistic types (or categories) of the stylistic system in a certain era, and to reveal the adaptive relationship between language style and linguistic data, expression techniques on the basis of this objective description. The ultimate goal and task of stylistic study is to describe the features of the whole stylistic system of a certain era, and on this basis disclose the entire stylistic system of a certain era, and then determine its stylistic norms. According to the content expressed and the context adapted, the written style is generally divided into four types: official document style, scientific and technological style, political discourse style and literary and artistic style. Official document style, with the stylized written language as the basic form, is applied to transactional and legislative documents. Clarity, simplicity and specification are the basic requirements of this style. The fixed syntax and formulaic expressions in legal documents, government documents, resolutions, contracts and certifications have formed the stylistic characteristics of official document style. The specific linguistics features of official document style include: the use of a large number of special terms, such as “be indebted to, hereby, learn with pleasure, comply with, as follows, be appointed or removed, examine and verify, hereby announce, conduct an investigation and deal, on the occasion of…” and so on; the frequent use of declarative and imperative sentences; little use of infectious rhetoric; and concise, simple and bright style. Scientific and technological style, also known as “intellectual writing”, is adapted to the needs of science and technology. Accuracy, preciseness and conciseness are the language requirements of this style. The detailed linguistics features include: the use of a large number of professional terms, graphs, diagrams, symbols and abbreviations; the continuous incorporation of foreign words and international general words; the frequent use of connective words, declarative sentences and compound sentences with strict structure; and the major use of negative rhetoric with rare infectious rhetoric like metaphor, comparison, exaggeration, antithesis, etc.

54

4 Legislative Language

Political discourse style refers to the critical style discussing socio-political issues, political events, social and cultural phenomena, social morality, etc. Tendentious and evocative expressions with strict logic are the main features of this style, which can be reflected in: the extensive use of words, especially the immediate use of new words and phrases; the frequent use of declarative sentences, imperative sentences and compound sentences; its major use in infectious rhetoric; and the presentation of a rigorous and solemn style. Literary and artistic style refers to the language style of oral and written literary works. Figurative, lyric and aesthetic are its basic characteristics. Literary and artistic style is generally divided into prose style, verse style and drama style. Prose style refers to the language style of writing used in novels, prose, feature articles. Usually, it has diverse language materials and rhetoric methods, almost without any restrictions. Verse style refers to the language style used in poetry, lyrics, allegro and other verses. Its language features great flexibility in the use of words and sentences, presenting rhythm and beat of beautiful music. Drama style refers to the language style used in drama, opera and local opera, showing the linguistics features of personalization, colloquialism and dynamics. The first monograph on stylistic features study of modern legislative language is On China’s Enactment of the Gains and Losses of History, published by Mr. Liang Qichao in 1904. He proposed that there are three crucial requirements of legal language: clarity, accuracy and elasticity. Clarity and accuracy are for the language it uses, and elasticity is for the meaning of legal language (Liang 2000). Contemporary scholars in China have conducted many studies on the features of legislative language: some summarized as clear, easy to understand, concise, rigorous and consistent; some are accurate, concise, precise, solemn and unpretentious; some study the legislative language from the aspects of authority, logic, and solemnity and so on; some advocate that legislative language has four features, namely accuracy, simplicity, solemnity and rigor; some believe that legislative language should meet the basic requirements of accuracy, conciseness, normativity, solemnity and simplicity; some put forward that legislative language has the features of clarity, certainty, popularity, conciseness, preciseness and normativity. As is known to all, language style differs from literary style in the linguistics. Literary style is the so-called article genre or literary system, which is formed by different article styles due to different ideas, thinking modes, writing content, expression, purposes, objects, functions and effects in written communication. Language style only involves language form, while literary style is not only about the language form of the article, but also focuses on the structure and aesthetic form of the article, such as the material selection, idea, structure, expression of the article and the author’s thought and emotion, intellectual ability, national temperament, and so on. Language style belongs to the category of linguistics while the literary style belongs to the category of article science (Mou and Jiang 2007). If we discuss the features of legislative language without distinguishing language style from literary style, the conclusion will be chaotic and unclear. The following will discuss the stylistic features of legislative language from the perspectives of words, sentences, and discourses.

4.2 Stylistic Features of Legislative Language

55

4.2.1 The Lexical Features of Legislative Language Word is the building material of language and the smallest language unit that can be used independently. Wording is a critical concern in legislative language. Word usage is a key concern in legislative language. Different language styles have different requirements in terms of wording. At the same time, any language style must abide by the common norms of the national language, including the norms of wording.

4.2.1.1

Normative

The use of words in legislative language must first conform to the grammatical norms of the national language. From a linguistic view, in the same language, no language style has independent word system, lexical system and phonetic system. Certainly, law has many specialized terms like other professional disciplines, but the formation and use of specialized terms cannot violate the grammatical norms of the national language, which is a basic premise and foundation. Secondly, it must comply with the norms of legislative style. Legislative style is a functional variant of the national language. From the classification level, it belongs first to written style, then to practical style, then to the political discourse style, and finally to the legal style. As written style, legislative language must avoid colloquialism in terms of word usage, otherwise it will not meet the requirements. For example, article 16 of our Criminal Law (1997) stipulates: “行为在客观上虽然造成了损害结果, 但是不 是出于故意或者过失, 而是由于不能抗拒或者不能预见的原因所引起的, 不是 犯罪。” (An act that objectively causes damage, but not by intent or negligence, but due to an irresistible or unforeseeable reason, is not a crime.) This article shows an obvious colloquial tendency with the use of Chinese phrases “但是不 不是” and “不 不 是犯罪”, which in English respectively equals the expression “but it is not” and “is not a crime”. It’s better to replace them with more formal Chinese expressions like “然而并非 (but not)” and “不构成犯罪 (cannot constitute a crime)”. Another example, in terms of the reference to the blank facts about a crime, the nonstandard statement in China’s criminal law is quite confusing, with over a dozen expressions, such as “违反……管理规定 (violation of management regulations of…)”, “违反国 家规定(violation of national regulations)”, “违反规定 (violation of regulations)”, “ 违反法律、行政法规规定 (violation of laws and administrative laws and regulations)”, “违反法律规定(violation of legal provisions)”, “违反规章制度 (violation of rules and regulations)”, and so on. Among them, except for the legislative interpretation of “违反国家规定 (violation of national regulations)” and “违反土地管 理法规 (violation of land management regulations)” by the Standing Committee of the National People’s Congress, there is no clear legislative interpretation and judicial interpretation for other expressions. These arbitrary and chaotic expressions, to a certain extent, undermine the preciseness and unity of the law.

56

4.2.1.2

4 Legislative Language

Neutral

In history, it was Bentham who first proposed the neutralization of legal terms. He was called by Brougham as the first British thinker who “treated legislation as science”. This representative figure of utilitarianism, also known as the “first philosopher of language”, devoted himself to the scientization of legislation in his research on legislation theory. The way to achieve scientization, in Bentham’s view, is to use neutral words without positive or negative connotations, in addition to the efforts to make language precise and replace abstract terms with concrete details as much as possible. “To make progress in the scientism of legislation, such ‘emotionally charged’ expressions must be replaced by neutral expressions” (Hart 2000). He called attention to the “imperfection of language”, insisting on the use of precise and morally neutral vocabulary when discussing law and politics. Legislative language usually uses precise and morally neutral vocabulary. It is inappropriate to use emotive words with all kinds of useless decorations in legislative language. Literary exaggerations and metaphors are also not suggested, nor is the use of spoken language, proverbs, dialects, argots, witticism or puns. Besides, commendatory and derogatory words with political and moral overtones should be banished. For example, article 294 of China’s criminal law (1997) stipulates that “……有组织地进行违法犯罪活动, 称霸一方, 为非作恶, 欺压、残害群众, 严重破坏经济、社会生活秩序的黑社会性质的组织的, 处……(…the organization with characteristic of sinister gang that commits organized illegal and criminal activities, becomes the domineering force of a region to do evil things, maltreats common people and destroys the economic order and social living order severely shall be sentenced for…)”. In this article, as objective acts of crime, “称霸一方 (becomes the domineering force of a region)”, “为非作恶 (to do evil things)” and “欺压、残害 群众 (maltreats common people)” are obviously derogatory and belong to Bentham’s “emotionally charged expressions”. Therefore, we can argue that the current difficulties in identifying the crimes under this article are to great extent caused by these emotive words. Another example, article 55 of the Constitution (amended in 2004) stipulates that “依照法律服兵役和参加民兵组织是中华人民共和国公民的光荣 义务。(It is the honorable duty of citizens of the People’s Republic of China to perform military service and join the militia in accordance with the law.)” In this article, “ 光荣 (honorable)” and “不光荣 (dishonorable)” is a matter of feeling. As long as it is a legal obligation, even if a person feels dishonorable, he must perform it; if it is not a legal obligation, no matter how honorable it is, he may not participate. Literary language like “honorable duty” should not be in the legislative language (Liu 2001).

4.2.1.3

Consistent

Legal style is highly systematic, which is presented first of all in the consistency of words. In literature works, it is a taboo to use the same words repeatedly to describe or narrate the same scene, because it will make people feel monotonous and boring. In legal texts, however, the opposite is true. The same concept, the same act, and the

4.2 Stylistic Features of Legislative Language

57

same circumstances should be expressed by the same words, which is an inevitable requirement of the preciseness of law. As Montesquieu put it: “The point is that the diction of law is bound to remind people of the same concepts” (Montesquieu 1963). The Criminal Law (1997) often contains synonyms of different words. For example, expressions of causality include “引起 (cause)” for 4 times), “引起 (cause)” for 122 times, “致使 (result in)” for 39 times, “因而发生 (thus happens)” for 4 times, “从 而 (thus)” for 1 time, “使……遭受 (makes/causes…suffer)” for 38 times, etc. Some scholars have found through analysis that although the legislation uses different words, they do not have any different meanings and are indeed synonymous. Since they are synonyms, they should be unified. The concept used to express the same thing should be consistent, with the same name. Number and time words should also be standardized. The phenomenon of same -word-with-different-meaning occasionally appears in our legislative language as well. Scholars made a specific analysis of the word “暴力 (violence)”, which appeared 35 times in the Criminal Law (1997), and found that the degree of “violence” in different articles varied greatly: from the most serious violence (including the degree of intentional homicide) to the least serious violence (namely the “violence” in the crime of violence interfering with the freedom of marriage), there were five levels of violence (Wang 2006). Therefore, the word “violence” is not a strict word of language of law with its broad denotation. Mr. Chen Xingliang has conducted a comparative study of ten words related to transaction in Criminal Law (1997), namely “买卖 (deal)”, “经营 (operate)”, “贩卖 (vend)”, “ 倒卖 (resell)”, “销售 (sell)”, “出售 (on sale)”, “出卖 (sell)”, “购买 (buy)”, “收买 (purchase)”, “收购 (purchase)”, and found many problems, one of which is the lack of uniformity. All these words can be understood as “sell” or “purchase” in English, but some of them will trigger misunderstandings, such as “收买” can be interpreted as “bribe”, “贩卖” can be interpreted as “traffic”, or “出卖” might be interpreted as “betray”. He believes that legal language, especially the language of the same law, should use the same term to express the same meaning or describe the same phenomenon. Only on occasions where distinctions need to be made can similar or different terms be used. This should be a principle for the use of legislative language (Chen 2000).

4.2.2 The Syntactical Features of Legislative Language Among the most obvious syntactical features of legislative language is highly stylized. The formalizing nature of legislative language sentences is mainly due to the specific logical structure of legal provisions. Legal norm refers to the rules of conduct formulated or recognized by the state and guaranteed to be implemented by the coercive force of the state. It summarizes the real social relations in an abstract way, which belongs to a kind of relatively fixed and repeatedly applied behavior rules. From the logical structure, legal provisions are the expression form of legal norms while legal norms are the contents of legal provisions. In most cases, one piece of legal provision consists of one sentence. Each

58

4 Legislative Language

legal norm has three constitutional factors: the first one is to specify the applied conditions of the the norm; the second is to indicate the behaviors that the norm allows or prohibits; the third is to point out the legal consequences of violating the norm. These three factors are often not expressed in a single legal provision. One norm can be expressed in several provisions or different provisions while several norms can also be expressed in one provision. Legal provisions do not necessarily contain norms, but may simply express some principles of the legal system, or the reasons for the enactment of the law or regulation. At present, China’s legal community usually believes that legal norms consist of three components: the premise, the behavioral pattern and the legal consequence. The premise indicates the conditions under which the norm applies. Behavioral pattern, namely the behavior rule itself, indicates what is allowed and what should be done or prohibited. It is the most basic part of the legal norms. Legal consequences indicate the legal effects of compliance with or violation of a norm. Legal norms and legal provisions cannot be regarded as the same. A provision does not necessarily include all three logical components of a norm while a norm can be expressed in several provisions, even in different documents, and several norms may be expressed in one provision. The behavior model is the main component of the legal norm, and the differences of its nature impose a significant impact on the logical structure of the corresponding legislative sentence. According to different behavior patterns, legal norms can be roughly divided into obligatory norms, authorized norms and prohibitive norms. The content of obligatory norms refers to the obligations of state organs, social organizations, public officials or citizens; the content of authorized norms stipulates the rights of state organs, social organizations, public officials or citizens; the content of prohibitive norms is to prohibit the implementation of certain acts. Besides, legal norms can be divided into mandatory norms and arbitrary norms according to the degree of mandatory. Mandatory norm refers to the legal norm that determine the rights and obligations in a very clear and definite way, and it is not allowed to be changed or violated in any way. Mandatory norms are manifested in two forms: obligatory norms and prohibitive norms. In other words, most of the obligatory norms and prohibitive norms are mandatory norms. Arbitrary norm refers to the legal norm that allows participants in legal relations to determine their rights and obligations within a certain range. According to the degree of certainty of content, legal norms can be divided into deterministic norms, voluntary norms and applicable norms. Deterministic norm refers to the legal norm that directly and clearly defines the content of the rules of conduct and does not need to be supplemented or explained by other legal norms when applicable. Most legal norms are deterministic norms. Voluntary norm refers to the legal norm that does not specify the content of the rules of conduct, but authorizes the legal norm to be prescribed by a specialized agency. Applicable norms are those that do not explicitly specify the content of behavior rules, but clearly indicate that other rules can be invoked to make the content of the rules clear. According to whether the regulated act is likely to have occurred before the rule, legal norms can be divided into regulative norms and constitutive norms. Regulative

4.2 Stylistic Features of Legislative Language

59

norm is a legal norm that evaluates all existing behaviors and adjust related behaviors by setting rights and obligations. Constitutive norm is a legal norm that leads to the appearance of certain behavior patterns based on the generation of rules and adjust these behaviors. Unlike the regulative norms, the behavior covered by the rule cannot occur until the constitutive norm is produced. From the current legislative practice in China, there are mainly two logical structure models of legislative sentences: the first one is “condition + legal subject + legal act”; the second is “condition + subject of act + act + legal consequence”. The first model is applicable to the legislative sentences of obligatory norms and authorized norms. The second model is the standard form of legislative sentences of prohibitive norms, which is generally used in substantive law. The famous German jurist Larenz classifies legal provisions into two categories: “complete provisions” and “incomplete provisions”. He believes that a complete provision refers to a legal provision that as long as the constitutive requirement T is realized in a specific case fact S, S should be endowed with legal effect R. If the particular case fact S is logically an instance of T, it can be assumed (written in a general way) that the constitutive requirement T has been realized in S. Therefore, if we want to know what legal effect should be given to the facts of a case, we must examine whether the facts of a case constitute an “instance” of T. If so, the legal effect can be educed from the following form of syllogism: if any case fact realizes T, then legal effect R should be given (the major premise). The fact S of a particular case realizes T, in other words, S is an “instance” of T (the minor premise). The legal effect R(conclusion) should be given to S (Larenz 2003). From the perspective of sentence type selection, Chinese sentence type can be divided into declarative sentence, interrogative sentence, exclamatory sentence and imperative sentence. Legislative language should be declarative rather than interrogative, exclamatory and imperative sentences. Since interrogatives indicate a questioning tone, exclamatory sentences are used to express a strong emotion, and imperative sentences expresses a request and desire, which are inappropriate for expressing legal norms. In other fields of legal language, such as pleading-type legal documents, interrogative sentences, exclamatory sentences and imperative sentences are allowed to enhance the effectiveness of the language. Legislative languages generally use long sentences because of the complex subjects, predicates, objects and complex additional modifiers from the common use of parallel structure and appositive elements. In sentences, words are a linear sequence in terms of the time they appear, but structurally, they are a multi-level system organized under certain grammatical rules. More words lead to longer sentences and more complex structural level. After writing, the language should be checked from every level to make sure there is no ambiguity. In addition, great attention should be paid to avoid mistakes in long sentences such as incoherent sentences, missing necessary subjects and midway subject changing.

60

4 Legislative Language

4.2.3 The Text Features of Legislative Language The formula of legislative documents varies from country to country due to the differences in sources of law and legal systems. The basic formula of many legal texts in Britain and America is: (I) Title; (II) A description of legislative purpose and relevant guidelines; (III) Definition; (IV) Scope of application; (V) General provisions and specific provisions; (VI) Detailed rules (except those of importance and capacity to constitute a separate part); (VII) Additional provisions; (VIII) Provisionally applicable provisions; (IX) Specific revocation and related amendment provisions; (X) Certain independent clauses; (XI) Date of expiry; (XII) Issuing date and effective date while the basic formula of legal texts in China is: (I) Title; (II) General provisions; (III) Specific provisions; (IV) Supplementary provisions. The general provisions (or general principles) of a major law, such as the Constitution, may be preceded by a preamble or other parts. General provisions usually set out the purpose, tasks, principles and requirements of the law, which is the “outline” of the law. Specific provisions are the “order”, usually define the specific content of legal norms, which clearly stipulate what to support, protect and develop, what to restrict, prohibit and ban, and also what is allowed and what is not allowed under what circumstances. Supplementary provisions generally stipulate matters relating to the implementation of this law, such as the effective date, etc. The necessary definitions of relevant legal concepts are also often elaborated in the form of articles in the specific provisions as well. Although Chinese and foreign formulas of legal texts are not the same, but they are generally similar in accordance with following principles in terms of the content order: general provisions precede specific provisions; important clause come first; the more commonly used and universal legal norms are in front; the permanently applicable provisions precede those temporarily applicable; and routine and technical contents are at the end. From the perspective of text structure, the most prominent feature of legal text is the high degree of stylization: in the overall structure, all provisions and articles are listed out in the method of paragraphing, and all contents are transitioning from descriptive components to prescriptive components, from issuing orders and/or preamble to specific provisions. In the development of structural level, it adopts the text structure from macro to micro, from general provisions/principles to articles, from important provisions to minor ones. This kind of stylized discourse is a necessary means to ensure the solemnity of legal norms and the preciseness, rationality and accuracy of the content, which can fully embody the connotation of legal norms. In addition, the structure of stylized text can set a specific interpretation context for the legal provisions, terminologies and generalized words involved, which will reduce the possibility of misinterpretation or misunderstanding of legal provisions and words, and disrupt the attempt of those who want to exploit legal loopholes (Zhang 2000). In the past, laws enacted by the National People’s Congress or its Standing Committee were divided into laws and decrees with a relatively large number of

4.2 Stylistic Features of Legislative Language

61

names. Now there are mainly two: one is named as “law” or the “general principles” of the “law”, such as Education Law of the People’s Republic of China and General Principles of the Civil Law of the People’s Republic of China; the other appears with the name of “amendment”, “decision” or “provision”, which is used to amend or supplement the law, such as the Amendments to the Constitution of the People’s Republic of China, Decision of the Standing Committee of the National People’s Congress on the Prohibition Against Narcotic Drugs, and Supplementary Provisions of the Standing Committee of the National People’s Congress Concerning the Punishment of the Crimes of Smuggling. In accordance with the Interim Regulations on the Procedures for the Formulation of Administrative Regulations, the name of the regulations mainly has three types: the first is to make relatively comprehensive and systematic provisions of the administrative work on a certain aspect, called “regulations”; the second is to make partial provisions of the administrative work on a certain aspect, called “provisions”; the third is to make more specific provisions for a particular administrative work, called “measures”. The name of rules and regulations include provisions, measures, detailed rules, rules, etc. The various norms that make up laws and regulations appear in the form of articles. These articles in each part, chapter and section shall be numbered in a unified sequence. The adoption of unified sequence number can not only achieve the purpose of being systematic, but also ensure the convenience of reference and accurate citation. Articles can also be divided into paragraphs and items. Some articles only have one paragraph, such as Article 1, Article 4, Article 5, Article 6 of Marriage Law of the People’s Republic of China (thereafter short for Marriage Law). If the article contains more than one paragraph, then paragraph 2, 3, 4, etc., should be presented on a separate line. For example, Article 2 of Marriage Law (1981) includes 3 paragraphs: 实施婚姻自由、一夫一妻、男女平等的婚姻制度。 保护妇女、儿童和老人的合法权益。 实行计划生育。 (A marriage system based on freedom, monogamy and equality between man and woman shall be implemented. The lawful rights and interests of women, children and old people shall be protected. Birth control shall be practiced.)

In one article, the contents numbered by (一), (二), (三), (四) and other cardinal numbers written in Chinese characters are items. For example, Article 7 of Marriage Law (1981) stipulated: 有下列情形之一的, 禁止结婚: (一) 直系血亲和三代以内的旁系血亲; (二) 患有医学上认为不应当结婚的疾病。 (Marriage shall be prohibited in any of the following circumstances:

62

4 Legislative Language a. if the man and the woman are lineal relatives by blood or collateral relatives by blood up to the third degree of kinship; b. if either the man or the woman is suffering from any disease that is regarded by medical science as rending a person unfit for marriage.)

This article shall be expressed as the Item 1 of Article 7 or the Item 2 of Article 7 when it is cited. Such structure of article, paragraph and item used in legal provisions is extremely rigorous, which cannot be reversed and changed by anyone. When quoting the article, it must be absolutely accurate. The basic unit of law is “article”, and paragraphs and items shall be set in accordance with needs below the article. Each law and regulation are a complete system, not a simple list of related articles, but the expression of the relevant legal norms of specific items placed in a tightly structured framework, which shows their internal connection and relative importance. The legal structure must be rigorous, wellorganized, scientific and rational. Only reasonable structure and proper arrangement of the articles can make the entire legal text clear and practical.

References Chen, Xingliang. 2000. Similarity and difference: Hermeneutic analysis of criminal law terms. Law Science 200 (5): 34. Du, Jinbang. 2004. Forensic linguistics. Shanghai: Shanghai Foreign Language Education Press. Hart, H.L.A. 2000. An introduction to the principles of morals and legislation: The preface// Bentham, J. An introduction to the principles of morals and legislation, trans. Shi Yinhong. Beijing: The Commercial Press. Larenz, K. 2003. Legal methodology, trans. Chen Aie. Beijing: The Commercial Press. Li, Zhenyu. 1998. The first exploration of legal linguistics, 12–13. Beijing: Law Press. Liang, Qichao. 2000. Collection of Liang Qichao’s legal essays. Beijing: China University of Political Science and Law Press. Liu, Dasheng. 2001. An analysis of China’s current legislative language dysfunctions. Law Science (1):23. Liu, Hongying. 2003. Legal linguistics. Beijing: Peking University Press. Montesquieu, C. 1963. The spirit of the laws, trans. Zhang Yanshen. Beijing: The Commercial Press. Mu, Yunfeng, and Tinghui Jiang. 2007. Forms of anaphora in legislation language. Applied Linguistics, (2):13. Wang, Zhengxun. 2006. The semantic analysis methods in the criminal law interpretation. Science of Law (1):9. Zhang, Xinhong. 2000. Speech act analysis of Chinese legislative discourse. Modern Foreign Languages (3):16. Zhou, Wangsheng. 2004. Science of legislation. Beijing: Law Press. Zhu, Liyu. 2010. Jurisprudence principles and case-study teaching materials, 2nd ed. Beijing: China Renmin University Press.

Chapter 5

Fuzziness and Legislative Language

Generally speaking, it’s difficult for people to associate fuzziness with law, and the emphasis on the fuzziness of legislative language may bring about criticism. People worry about or refuse fuzzy language in legislative texts because they fail to jump out of the binary opposition mindset of justice or injustice, crime or non-crime, which is either true or false. They categorize vagueness, ambiguity, generality, uncertainty and other concepts of language as “fuzziness” and make fuzziness the opposite of accuracy in legislative language. In fact, as American scholar William Alston put it, when people set out to make a term more accurate, it turns out that the very term they use to remove the ambiguity of what they’re talking about was ambiguous itself (Alston 1988). In this chapter, we will make efforts to restore the original nature of “fuzziness” and to discuss the standardization of legislative language in China on the basis of correct views of “fuzziness”.

5.1 Fuzziness of Legislative Language Fuzzy linguistics is a new branch of linguistics developed in the twentieth century. Before that, many scholars have studied linguistics fuzziness and put forward various opinions. However, it is generally believed that fuzzy linguistics, as a discipline, originated from the fuzzy set theory proposed by Professor Zadeh of the University of California in 1965. The theory also promoted the birth of a series of other disciplines, such as fuzzy mathematics, fuzzy logic and so on. Although fuzzy linguistics has not been around for a long time and its discipline construction and theoretical system are not mature, it does provide a new perspective for the study of legal language, especially the standardization of legislative language.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language, https://doi.org/10.1007/978-981-99-2633-6_5

63

64

5 Fuzziness and Legislative Language

5.1.1 Fuzziness of Language To figure out the essence of fuzziness in language, we should first understand the nature of semantics. Lenin pointed out in Note on Philosophy that “the meaning of words does not represent objective things or phenomenon, but a reflection of these things or phenomena in people’s consciousness” (Lenin 1990). This is also verified in Ogden and Richards’s symbol-triangle theory: concept/semantics is directly related to the signified/objective existence, and concept is the reflection of objective things in the mind. There is also a direct relationship between concepts and symbols. Abstract concepts can only be expressed through ideographic symbols/words, which means that words are used to express concepts, but there is no direct and inevitable connection between symbols and the signified; that is to say, the connection between them is arbitrary. Therefore, what fuzzy semantics represents is actually not fuzzy objective things or phenomena, but fuzzy reflection of these things or phenomena in people’s consciousness. Human’s understanding of language fuzziness has been for a long time. Leibniz recognized the inaccuracy of natural language early on and proposed the idea of replacing natural language with mathematical language; Russell published Vagueness in 1923 and pointed out that “the whole language is more or less vague”, such as the vague concept of “baldness”. It is absurd to be so precise that a person has lost his last hair to go from non-baldness to baldness. But the exact point at which hair loss counts as baldness is difficult to pinpoint (Wu 1999). In 1937, Black also wrote an article “Vagueness”, which clearly pointed out that “the vagueness of words refers to the limited range of the use of words and the lack of clear regulations on the limited range” (Wu 1999). In addition, there are scholars in the field of philosophy, linguistics and even natural science dealing with the fuzziness of language. As early as the age of Scholasticism, people already tried to understand language as a mirror of reality: “Language, when divided by understanding, should have no remainder. Clear and precise language is the goal” (Kaufman and Hasmer 2002). Although this goal has never been achieved, people refuse to give up. Until the early twentieth century, the logical language school was still trying to build a “clear” language. The early Wittgenstein confidently proposed in Philosophy of Logical that “everything that can be said can be said clearly”. However, he seemed to have lost this confidence in later years, and turned from the logical language school to the daily language school, becoming the representative of the daily language school. In the history of jurisprudence, conceptual jurisprudence once rose and then declined rapidly, indicating that jurists have also tried to construct precise legislative language. Fuzziness is a linguistic term introduced from philosophy and mathematics. Its earliest scientific interpretation dates back to 1908 by the German scholar Anton Marty. Later, the famous British philosopher Bertrand Russell, American philosophy professor Max Black and others have studied the problem of fuzzy language. In 1965, Zadeh, a professor at the University of California, published a paper “Fuzzy Sets” in the eighth issue of the Journal Information and Control. He pointed out: “A fuzzy set is a class of all members whose memberships form a continuous set” (Wu 1999).

5.1 Fuzziness of Legislative Language

65

In traditional set theory, the members of each set either belong to it or not. However, when classifying such phenomena in nature, it is often difficult to find the exact evidence to define their qualifications. Zadeh noted that: “concepts like ‘beauty’ or ‘the tall’ don’t constitute a class or set in the general mathematical sense. But in fact, this imprecise class plays an important role in the human mind” (Wu 1999). Therefore, Zadeh proposed to use fuzzy set method to deal with fuzzy phenomena and study fuzzy concepts. The basis of traditional set theory is binary logic. In binary logic, a proposition, namely a declarative sentence expressing accurate information, is either true or false. According to this set theory of binary logic, the connotation and denotation of a conceptual category must be clear. For example, in the proposition of “Mr. Zhang is professor”, whether Mr. Zhang is professor or not must be determined. However, if we change the word “professor” to “a good man” in this sentence, the problem arises. Because “a good man” is a fuzzy concept, its connotation (the basic meaning) is clear, but its denotation is unclear that we don’t know how good a person is to be a good man. Zadeh attributed fuzzy concepts like “a good man” to fuzzy sets or so-called fuzzy classes. “Fuzzy classes refer to categories whose boundaries are not clearly defined, or, to put it another way, fuzzy class refer to the transition from members to non-members of the class as gradual, rather than sudden” (Wu 1999). On the basis of fuzzy sets, Zadeh also proposed the concept of “degree of membership” to solve the defects of binary logic, that is, for the set of fuzzy concepts such as “a good man” and “a bad man”, to specify the membership degree of its members to the set, any real value in the interval [0, 1] can be taken, which means continuous values can be taken in the interval [0, 1]. In this way, each member of the fuzzy set has a corresponding membership degree. This membership degree constitutes the membership function of the fuzzy set with respect to its elements. The difference between fuzzy set theory and classical set theory is that the described object of the former has the property of open boundary and uncertainty, so the value range of its function is a continuous interval of real numbers in [0, 1], while the value of the latter is only the value of the two endpoints in the interval. In a sense, fuzzy set theory deepens and expands classical set theory. However, not all definitions and rules of classical set theory can be found in fuzzy set theory. Zadeh noticed that the law of the excluded middle and the law of contradiction in classical set theory are inapplicable to fuzzy sets. The above introduction shows that the fuzzy set theory proposed by Zadeh, the founder of fuzzy mathematics, was initially inspired by the fuzziness of language. A fundamental reason why fuzzy set theory is applicable to the study of language fuzziness is that many words, especially many words in natural language, are actually fuzzy sets in a certain domain. In the 1970s, Rosch, Lobov, Lakoff and other scholars conducted a lot of research on some of the most basic concepts such as cups, birds, fruits, furniture, vegetables, etc., and found that prototype plays a key role in categorization, thus proposed and established the prototype theory (Lakoff 2005). In prototype theory, there are three very significant concepts: prototype, family resemblance and category. Taylor pointed out that we can understand the prototype from two perspectives. On the one

66

5 Fuzziness and Legislative Language

hand, prototype refers to the use of a typical thing as a representative of other similar things. For example, though the magpie is small, it has the main characteristics of birds, so it can be used as a typical representative of birds. On the other hand, prototype can be understood as a schematic representation of the conceptual core of a category, no longer referring to a specific thing (Taylor 2001). Family resemblance is an important concept put forward by Wittgenstein in his Philosophical Research when examining the scope of German word “spiel” (means “game” in English). He emphasized that the basis for establishing a semantic category is similarity, or similarity relations, which is similar to those between family members in a human society. It can be seen that family resemblance is the basis of establishing semantic category, and the degree of resemblance determines the status of things in the category, that is, whether it is a typical member (prototype) or a marginal member. Family resemblance is vital evidence for judging whether something belongs to the category (Xu 2006). In addition, according to the prototype theory, the boundary of the category is fuzzy, unfixed and overlapping, and the definition of category is a fuzzy recognition process built in accordance with the degree of family resemblance between members on the basis of taking prototype as the cognitive reference point. The core of the category has typical properties common to all members, which is equivalent to the definition of the set. It is clear. But the edge of the category, which equals to the extension of the set, that is, all the elements that make up the set, is fuzzy and cannot be clearly defined. Polish philosopher Schaaf pointed out that in objective reality, there are transition states between the various categories of things and phenomena expressed by words. There transitional states, namely “the boundary phenomena”, can be interpreted as the phenomenon of the fuzziness of words (Wu 1999). Some scholars believe that language fuzziness arises for two reasons). For one aspect, it comes from the contradiction between the discreteness of language symbols and the continuity of objective things. To mark continuous things with discrete language symbols may lead to unclear boundaries and fuzziness. For example, the process of birth, growth and aging of a person is continuous, but in language we will use words “infants”, “children”, “teenagers”, “the youth”, “the middle-aged”, “the old” to mark different age groups, which cannot be absolutely clearly distinguished. For another example, people usually use words “east”, “south”, “west”, “north” to mark the direction, which is limited for the continuously changing direction. Naturally, using limited words to express infinite thing will cause fuzziness. One more example, people tend to classify living things into animals and plants, which cannot be absolutely clearly distinguished for the existence of disputes like whether the germ is animal or plant. Some advocate the trichotomy of “animal-microorganism-plant”, but the boundary between animal and microorganism, or that between microorganism and plant, is difficult to be absolutely clear. The interpretation of “海 (sea)” in Ci Hai, a large comprehensive dictionary of Chinese words and phrases and encyclopedia words, is that “the marginal part of the ocean, which has smaller space and less depth, accounts for about 11% of the ocean”. The definition of “洋 (ocean)” in the dictionary is “the vast waters on the surface of the earth, accounting for about 89% of the total area of the ocean.” Therefore, it is obvious that there is no clear boundary

5.1 Fuzziness of Legislative Language

67

between “海” and “洋”. Generally, the name of the water in Chinese is in accordance with the above definitions, such as “大西洋 (Atlantic Ocean)”, “太平洋 (Pacific Ocean)”, “黄海 (Yellow Sea)”, “阿拉伯海 (Arabian Sea)”. But in some phrases, the distinction between “海” and “洋” is not made. For example, For example, “海 盗 (pirate)” is a robber haunting in the ocean, “海床 (seabed)” is the bottom of the ocean, “海龟 (turtle)” refers to the turtle in the South Pacific, “海里 (sea mile)” is a unit of length to calculate the distance on the ocean, and “海轮 (seagoing vessel)” is a ship sailing on the ocean. The f semantic fuzziness of separating “sea” from “ocean” also shows similar features in foreign languages: the expression of “ocean” in English is “ocean”, in French “océan”, in German “ozeane”; the expression of “sea” in English is “sea”, in French “mer”, in German “meer”. But in French, when referring the Atlantic Ocean and the Mediterranean Sea, word “les deux mers” can be used regardless of the distinction of “océan” and “mer” (Wu 1998). For another aspect, language fuzziness can be attributed to human thinking and the need of communication. Discrete language symbols can mark objective things either fuzzily or precisely. For example, we can say someone is a “youth”, or he is “25 years old”, or more precisely, he has been alive for how many months, days and hours, minutes, seconds. But in general, it is enough to say that he is a “youth”. Another example, with the development of science, people found that color has three elements: wavelength of light, saturation and brightness. This allows some data to be used for quantitative analysis of color, such as wavelength of 510 nm is the core of “green” and wavelength of 575 nm is the core of “yellow”. The human eye is capable of distinguishing many colors with considerable precision, and of expressing any color with general accuracy, but such precision is not necessary in daily communication. People are used to think with and communicate with fuzzy words like “red, yellow, blue, green…”. The definitions of “light rain”, “moderate rain”, “heavy rain” and “torrential rain” are mostly used in meteorology or weather forecasting, but in daily communication these words are subject to restrictions and people rarely use “moderate rain”. In communication, the use of fuzzy language helps to create a harmonious atmosphere, which makes the content more acceptable to the other party. Fuzzy language is not some irrelevant words functioning as a pause or conjunction. They are deliberately chosen for language communication. People use fuzzy words not because they lack language ability, but for they are an indispensable part of language communication. The correct use of fuzzy language represents a person’s competence of language application. For example, an accountant will use fuzzy words like “approximately” when asked whether there is expenditure but does not have exact figures at hand. We believe that fuzziness, as one of the essential characteristics of human natural language, its existence is objective and inevitable.

68

5.1.1.1

5 Fuzziness and Legislative Language

The Indivisibility of Time and Space Determines the Fuzziness of Language

In nature, the boundary between time and space naturally cannot be accurately determined due to their scalability and extensibility. Therefore, there will be some words that cannot be accurately distinguished in the description and use of language, which means that the indivisibility of time and space determines the fuzziness of the extension of some words. For example, “spring”, “summer”, “autumn”, and “winter” refer to the four seasons of the year. However, the alternation between them presents as a certain wandering and continuous transition with indefinite boundary. One more example, words “teenagers”, “the youth”, “the middle-aged” and “the old” mentioned before respectively refer to people of a certain age. The semantic feature of each word is a fuzzy set, and the connection between them is fuzzy with the extension of each word to be extensible. For instance, the twenties or thirties were called “the youth” 50 years ago and the forties were called “the middle-aged”. But now, the forties are still considered “the youth”. It can be seen that the specific interpretation of “the youth” and “the middle-aged” is changing, with certain fuzziness, and there is no clear-cut “one-size-fits-all” between the concepts.

5.1.1.2

The Uncertainty of the Nature and State of Things Determines the Fuzziness of Language

Since it is difficult to draw a clear boundary between the nature and state of objective things, the extension expressed by the words used to describe the nature and state of these objective things in language will be blurred. Take adjectives as an example, in human’s natural language adjectives are abundant and offer many possibilities for people to describe various things and behaviors. However, these adjectives are often fuzzy in their meaning. The fuzziness of adjectives can be divided into two types: one is the fuzzy adjectives describing objective things or existences, such as tall/short, wide/narrow, big/small, fat/thin, early/late, hot/cold, etc.; the other is the fuzzy adjectives describing subjective abstractions, such as good/bad, new/old, beautiful/ugly, light/heavy, etc. The extension expressed by the above words is indefinite and entwined, which cannot be accurately determined.

5.1.1.3

The Inaccuracy of Human Cognition Determines the Fuzziness of Language

Democritus, the ancient Greek philosopher, once pointed out that human cognition generated by feeling is fuzzy and uncertain. The existence and development of human beings cannot be separated from the constant acquisition of knowledge from nature, which promotes the development and progress of human society. However, not all of human’s knowledge of the nature world is accurate. There is also a considerable amount of knowledge that is uncertain and fuzzy. For example, if we look for someone

5.2 Language Types Related to the Fuzziness

69

with “big eyes and a high nose”, we don’t need to know exactly how big his or her eyes are and how high the nose is, but we can still find him or her based on the fuzzy knowledge.

5.1.1.4

Fuzziness Is One of the Important Features of Human Cognition

Language is the expression of thoughts and cognition. The fuzziness of cognition inevitably determines the fuzziness of language use. From the attribute of language, fuzziness is the basic attribute of language, and the fuzziness of language determines that law inevitably has fuzziness. From the attribute of law, law must have generality, abstractness and relatively stability, all of which are based on the fuzziness of language to a certain extent.

5.2 Language Types Related to the Fuzziness The fuzziness of language is not vagueness or ambiguity to study the fuzziness of legislative language is not to deny the clarity of law for fuzziness, but to “seek uncertainty in the certainty of law and seek certainty in the uncertainty of law” (Ge and Chen 1997). In legislative practice, there are several language types that often disturb people’s thinking and are easily confused with ambiguity.

5.2.1 Vagueness Zhang Qiao simply defines “vagueness” as “a word or sentence with multiple semantic explanations” (Zhang 1997). In other words, we can say that a proposition is vague when one cannot give out a definite answer as to what it means. Fuzziness is not vagueness. Although “vague”, “ambiguous” and “imprecise” are generally derogatory words, and we speak of words like “precise” and “clearly logical” with respect, but language itself does not distinguish between “good” and “bad” (Zhang 1997). Precise language naturally has its advantages. For example, when recording time, places or statistics, language must be 100% accurate. Besides, precise language must be used to avoid ambiguity when dealing with scientific papers, legal documents and government statements. But fuzzy language also has its application scene of properly solving the communication difficulties that may occur in daily communication. There is an impassable gap between fuzziness and preciseness. In fact, fuzziness can be transformed into preciseness in some cases. Fuzzy semantics and precise semantics can be transformed into each other under certain conditions, which proves that fuzzy semantics have the feature of variability. Mr. Shi Anshi pointed out, “the fuzziness of semantics is relative to the preciseness of semantics. Fuzziness and

70

5 Fuzziness and Legislative Language

preciseness are both necessary for communication” (Shi 1988). There are several reasons for the interplay between fuzziness and preciseness. Firstly, the change of the time. As times changes, many previously well-defined concepts have gradually evolved into fuzzy concepts, and vice versa. For example, many quantifiers in Chinese, such as “三 (three)”, “六 (six)”, “九 (nine)”, were precise words in ancient Chinese, but now they have become fuzzy concepts for “多 (many)”. Secondly, the development of language and semantic infection. This is another reason for the mutual transformation between fuzziness and preciseness. As in German, word “jung” means “young”, but adding “frau (woman)” to this fuzzy word will form a precise word “Jungfrau (virgin)”. What’s more, “cold” and “hot” are fuzzy words, but “cold war” and “hot dog” express precise concepts. Thirdly, the hard rules. Some fuzzy semantic boundaries are fixed under the condition of making hard rules. For example, “long” and “short” are fuzzy, but “long wave” and “short wave” are more precise concepts. The reason is that hard rules have been established for these concepts. The former is “radio waves with wavelengths of 1000-10000 m”. The latter refers to “radio waves with a wavelength of 10–100 m”. There is an essential difference between fuzziness and vagueness. Fuzziness is the uncertainty of the boundary signified by the concept, which is usually made by the language user with no choice but to be intentional. It has both negative and positive effects. Ambiguity is a negative result that should be avoided as much as possible, because information provided is defective due to the improper use of language. The Paragraph 3 of Article 60 of Company Law of the People’s Republic of China (1993) (hereinafter referred to as Company Law) stipulated: “董事、经理不得以 公司资产为本公司的股东或者其他个人债务供担保。” (Directors and managers shall not use the company’s assets to guarantee the debts of the shareholders or other individuals.) For this article, academic understanding is various. It can be interpreted as “a company shall not only provide guarantees for the debts of its shareholders and other individuals, but also for the debts of people other than shareholders and other individuals, which is a complete restriction on the company’s external guarantees”; it can be said that “the directors and managers of the company shall not personally provide guarantees for the debts of the shareholders and other individuals, but it does not involve the board of directors or the general meeting of shareholders. In other words, the corporate body as legal person still has the right to implement external guarantee”. another interpretation is that “this paragraph doesn’t prohibit external guarantees of the company, but there are restrictions, that is, the company shall not provide guarantees for shareholders and other individuals; as for other legal persons, the company may still guarantee them” (Nian 2003). Therefore, Nian Ya suggested, “The Paragraph 3 of Article 60 of Company Law shall be repealed because it is fuzzy and cannot adapt to the modern development of the Company Law.” In fact, the semantic of this article is vague, not fuzzy or ambiguous. “Fuzziness” is an inherent attribute of language, which exists objectively in language while “vagueness” is not. European and American linguists often use the term “vagueness” to refer to various undesirable phenomena in language, which is

5.2 Language Types Related to the Fuzziness

71

essentially a confusion of the boundary between “fuzziness” and “vagueness”. Fuzziness is not the same as vagueness, which does not mean fuzziness is unknowable, after all, the rational use of fuzzy legal concepts in inevitable in any law. Therefore, we should look at fuzzy language objectively, paying attention to both the negative and positive effects of fuzziness.

5.2.2 Ambiguity “Ambiguity” refers to the ambiguity of the object, mostly caused by the phenomenon of homonyms and polysemous words. There are more than twenty definitions of “ambiguity” in the research literature, which can be summarized as “the phenomenon that the same language form expresses several different meanings” (You 2001). If we can make a clear explanation of ambiguity or polysemy for the same language form, it is said that this language form is ambiguous. According to Wu Tieping et al., fuzziness simply refers to the fuzziness of the meaning and has nothing to do with sentence structure (Chen and Wen 1996). But there are many reasons for ambiguity, which may be caused by phrases and their combinations, or by sentence structure. In fact, the difference between fuzziness and ambiguity is obvious. Fuzziness does not cause ambiguity. Fuzziness is characterized by an unclear boundary, and the characteristic of fuzzy semantics is that the boundary of the object marked by words is unclear. If there is no clear boundary between the object marked by word A and the object not marked by word A, then A is said to be fuzzy. Some words have an unknown boundary at both ends, and some at one end. For example, the boundary between one end of “youth” and “the middleaged” is not clear, so is it between one end of “the old” and “the middle-aged”; the boundary between one end of “juvenile” and “youth” is not clear, so is it between “the middle-aged” and “youth”; and the boundary of “the old” and “the middle-aged” is not clear only at one end. It can be seen that, as long as the boundary of one end is unclear, the semantics is fuzzy. Therefore, fuzziness refers to the uncertain attribute of the boundary of the referential range of a word, which is different from ambiguity. Ambiguity is often caused by external factors, such as polysemy, homonym, phrase combination or grammatical structure defects. The uncertainty of ambiguity is manifested in the ambiguity in the selection of several definite objects, but under the specific context, the semantics will turn clear. For example, although the term “detention” can refer to both criminal detention and the administrative detention of public security, which seems easy to lead to ambiguity. However, in different rule fields, that is, in different legal contexts, the concept expressed by the term is clear and the semantic ambiguity will be eliminated naturally. This is also suitable to distinguish vagueness from ambiguity. In legislative language, fuzziness is a kind of language expression skill, which is used by legislators intentionally. Fundamentally, ambiguity is not a problem of language theory or grammar, but a logical error reflected in expression (Zhou 2005).

72

5 Fuzziness and Legislative Language

5.2.3 Generality The so-called generality is, on the basis of a large number of perceptual materials, to generalize the common characteristics and rules of a class of things. Generality is the premise for people to form concepts and the basis for thinking activities. The generality of language is to express complex things in concise sentences and to summarize the common characteristics of things. Generalization is a manifestation form of the cognitive process changing from concrete to abstract, which is based on accurate and scientific analytical ability. From the perspective of pragmatics, to concisely generalize language is the requirement of concise language use, but inherently it is the result of the development of thinking ability. For example, boats, airplanes, bicycles, cars, and other means of carrying people are often generalized as “transportation”, whether or not the word is used can reflect the breadth and depth of one’s cognitive ability. Generalization is the opposite of concreteness. Ships, airplanes, bicycles, and cars are all specific embodiment of the word “transportation”, that is, there is a contextual relationship between words with generalized meanings and words with specific meanings. There is a natural connection between fuzziness and generality. Fuzziness is an important manifestation of generality. The general and simple things formed by generalization often have certain fuzziness themselves. Engels described such an incident in The Condition of the Working C1assin England: as the workers strongly opposed the capitalists to extend the working hours up to more than 12 h a day, the British Parliament had to pass a bill that stipulated the word “night” should be understood as a period of time from 6: 00 p.m. to 6: 00 a.m. That’s because night work is forbidden by law in England, but what is “night” and from what time it is “night” is unclear. Capitalists took advantage of this loophole and made the night hours very short so as to extend the working hours and extract excess profits, which aroused the struggle of workers. The linguistics features of generality and fuzziness are easily confused. Even great philosophers like Russell have confused the phenomenon of generalization and fuzziness with the scientific concept “blurring” or “fuzziness” such as the blurring of photos. It was not until Zadeh published a series of articles such as “Fuzzy Sets” in 1965 and American linguist George Rekoff applied his theory to the linguistics that the object of fuzzy linguistics gradually became precise and specific. The fuzziness of word meaning is like the division of climate zones. We can point out the central areas of tropical, temperate and frigid zones, but cannot draw the exact boundary between different zones. The phenomenon referred to by the meaning of a word vary in a range, and must contain features that can be distinguished from another phenomenon, but there is often no clear boundary. These two points play important roles in communication: without a general range and features that can be distinguished from other phenomena, phenomena in real life cannot be classified and confusion will arise. However, if the meaning of any word is required to be as precise as a term—The height of 1.80 m counts as “tall”, and 1.79 m does not; or you don’t belong to “the old” until you’re sixty years old, can be defined as “old”, even

5.2 Language Types Related to the Fuzziness

73

if you’re fifty-nine and a half—then the communication will be difficult to move on. The meaning of any word is general, but the degree of generalization is different. However, not all words are featured as fuzzy, only part of words have uncertain or fuzzy boundary meanings. Words with general semantics and words with specific semantics may be fuzzy or explicit. Among words with hyponymy relations, “adult” and “woman” are both fuzzy words, while “spouse” and “wife” are both explicit words. In particular, the limitation of legal provisions and the diversity of human social behaviors force legislators to use a large number of general languages to cover some specific behaviors, “other” and “any” are typical examples. The connotation of these words is relatively uncertain and the denotation is open. These generalities are widely adopted in the Constitution, basic law or departmental law. For example, as stipulated in the Fifth Amendment to the Constitution of America: “No person shall be compelled to answer for capital crime or other great crimes unless he is sued by the grand jury. No person shall be subjected to multiple punishments of life or person for the same offense, nor shall be compelled to be a witness against himself in any criminal case.”

5.2.4 Uncertainty The polysemy of the words and sentences in natural language is a manifestation of uncertainty in language system. Definiteness and uncertainty, monosemy and polysemy, fuzziness and preciseness, concreteness and generality are all the unity of opposites. In verbal communication, polysemy should be excluded, but if the language user fails to do so through careless consideration or negligence, the communicative activities will be affected. Any natural language or national language is an organic whole, which is subordinate to the large system of speech (context). The dependence on context is a prominent feature of natural language. Therefore, it is impossible to separate language system from context and its dependent cultural traditions in the study of language. Language is inherently uncertain. The meaning of language is given by human beings in social life, and the signified meaning of language is not beyond the history. Therefore, the meaning of language will change. For example, Mencius said, “尽 信书, 则不如无书 (To believe unconditionally what the book says is worse than if there were no book in existence.)” People at present usually understand the “书 (book)” in this sentence as a general concept, but according to the researches of some historians, the “book” in this sentence specifically refers to Shang Shu, one of the Confucian classics and also translated as Book of History. The First Amendment to the Constitution of America prohibits Congress from establishing “religion” or interfering with the free exercise of religions. Religious organizations can also enjoy property taxes exemption of state, and the donations for religious organizations can be deducted from tax calculations. But what is “religion”? This term does not contain a definite extension. In the absence of clear legislative definitions, the judge must

74

5 Fuzziness and Legislative Language

make a decision. Moreover, the problem is that the judge can only decide what a rule should mean in law, not what it does mean (Posner 1994). “Semantics are uncertain. Uncertainty is often expressed as fuzziness, ambiguity and vagueness.”(Wang 2001) In other words, fuzziness inevitably leads to the uncertain boundary of the concept, but semantic uncertainty is not necessarily caused by fuzziness. Fuzziness is just one form of uncertainty. The linguistics phenomena including vagueness, ambiguity and generality aforementioned may cause semantic uncertainty.

5.3 Features of Fuzziness in Legislative Language Formal logic has a basic rule—the law of excluded middle, which holds that two contradictory concepts cannot be false at the same time. One must be true and the other must be false, and there is no third possibility. What we call fuzziness is exactly a breakthrough of the law of excluded middle. A concept with fuzziness can belong to both A and B. According to Zadeh’s fuzzy set theory, the fuzziness of legislative language refers to the incomplete attribution of law, in which there is no clear boundary between different legal concepts, and no distinct boundary between a legal concept and its contradictory concept, but there exists a middle area in which two concepts blend with each other. The transition from set A (crime) to non-A (noncrime) is not sudden, but gradual. Almost all legal issues, such as law or morality, rights or obligations, legal or illegal, crime or non-crime, public or private rights, abstract or concrete, macro or micro, will eventually come down to the fuzziness of the boundary. Engels once wrote that materialist dialectics “did not admit any absolute and fixed boundaries in the world”, and believed that “the dialectics allowed the fixed metaphysical differences transit to each other. In addition to ‘one or the other’, the dialectics also acknowledged ‘both A and B’ in appropriate conditions, and made opposites the intermediary of each other”. This sentence from Engels reveals the attribute of “both this and that” of fuzzy legal language. Therefore, Zadeh’s fuzzy theory provides guidance for people to describe the objective and real world with language. The basis of fuzzy theory lies in the membership degree of fuzzy set. Membership degree refers to the degree to which the relevant object belongs to the range marked by a word (Shi 1994). Traditional “ordinary set”, namely non-fuzzy set, has a clear boundary, which means that a component either belongs to a set (value of membership degree is 1) or does not belong to this set (value of membership degree is 0). The fuzzy set ranges from 0.0 to 1.0, expressed as (0.0, 0, 1.0). For the proposition “Jane is old”, it can be written as m (OLD) by fuzzy logic, where m represents the member, and its value varies according to the membership degree of the member. How to determine the membership degree of fuzzy sets? Zadeh calculated membership degree by means of a questionnaire survey: membership degree is equal to the ratio of frequency to the total number of the answered questionnaires (Shi 1994). Among them, “frequency” refers to the number of respondents who agree to the survey. “In a set of members with different membership degrees, the member located in the center

5.3 Features of Fuzziness in Legislative Language

75

is the most representative, average, prominent, and with high membership degrees. Peripheral members are non-prototype members with low membership degrees. The outermost members may overlap with members of another category and have lower membership degree. People spend much less time and energy identifying prototype members with high membership degree than identifying non-prototype members with low membership degree” (Wang 2001). The fuzziness of legislative language mainly has the following characteristics.

5.3.1 Uncertainty British scholar Hart argued in his great book The Concept of Law that the core meaning of legal concepts is clear, while the uncertainty of law only exists in difficult cases involving the marginal meaning of words. Joanna Channell, in her book Fuzzy Language, illustrates Roche’s categorical hierarchy using the “gun” as an example (Channell 2000). The prototype members of “gun”, such as pistol, revolver, machine gun and rifle, have the ideal value of this category, which are at the center of the category with obvious categorical attributes and relatively excellent definition. From prototype members to non-prototype members, such as slingshots, fists, axes, razors to cars, screwdrivers, glass, shoes, etc., the degree of category membership is decreasing, but the range of each other is not clear. In accordance with this trend of extending outwards from the center, the edge of the category is bound to appear some members that are difficult to judge, which leads to the fuzziness of the category boundary. The above example shows that any behaviors that endangers public security or people’s life and property, like using the prototype members of a pistol, revolver, machine gun and rifle as a means of murder, must be prohibited by the legislation of all countries in the world; but using screwdrivers, glass, shoes and other nonprototype members as a tool of crime can also harm people’s lives, which is exactly what the law can exclude. Therefore, in the general provisions of our Criminal Law, “criminal preparation” was defined as “to prepare tools and create conditions for crime”, and it is unnecessary and impossible to concretize such fuzzy words as “tools” and “conditions” in detail and clearly. Here is an interesting case, China’s new Criminal Law of 1997 revised “the crime of abducting and trafficking people” in the Criminal Law of 1979 to “the crime of abducting and trafficking women and children”. The meaning of the concept “women” is supposed to be very clear, but it was fuzzy in the case reported by Yangcheng Evening News on December 9, 1999. A trafficker in Sichuan Province sold a young woman to a buyer from Anhui province, who later found that his wife was bisexual. After the crime, the trafficker argued that he did not abduct a woman and did not constitute a crime. Whether a bisexual person is a “women” referred in the Criminal Law (1997) made the precise concept become fuzzy in marginal cases. Thus, as for the social relations adjusted as a whole, the legal language is precise; but for specific cases, the legal language is fuzzy, that is,

76

5 Fuzziness and Legislative Language

uncertain or unclear. “When we incorporate special cases into general rules, nothing can eliminate the duality of a deterministic core and an indeterminate edge. All rules are then shadowed by vagueness or ‘vacant structure’” (Hart 1996).

5.3.2 Relativity Relativity means that it may be clear from one point of view and fuzzy from another. In order to distinguish the crime of burglary from house-breaking in British law, the term “night” is adopted in legislation, which is then interpreted as “the period from one hour after sunset to one hour before sunrise”. However, due to the different time zones in the UK, it is still difficult to define in practice, and people in different time zones can often draw different conclusions. In China, the crime of theft and the crime of misappropriation of public funds are both crimes against property. The Criminal Law stipulates the “large amount” as the filing standard. According to the judicial interpretation of several issues concerning the specific application of the law by the Supreme People’s Court, the standard of the “large amount” in the crime of theft refers to the theft of public and private properties by individuals with a value of 500 to 2,000 yuan; while in the crime of misappropriation of public funds, the value of 10,000 yuan to 30,000 yuan is the starting point of the “relatively large amount”. Then take the legal term “common law” as an example. If viewed from the historical development of Anglo-American legal system, “common law” should be “universal law”. Compared with the concept of civil law, “common law” should include the legal contents developed from equity and case law (referring to the judges making decisions based on local customs). Therefore, some scholars refer “common law” as the “law of the sea”. However, in the current legal system, the term “law of the sea” specifically refers to legal issues such as regulating maritime navigation, environmental protection or scientific researches, so it is not appropriate to refer to “law of the sea” as “common law”. From the tradition of “strict forms of litigation” in the Middle Ages, “common law”, as opposed to equity, can be called “customary law”; when “common law” is used in conjunction with American law, it refers to British law; when it is the opposite of “statutory law”, “common law” refers to the legal norms formed by the accumulation of the court’s decisions… (Pan and Liu 2000).

5.3.3 Obscure Boundary Division Although fuzzy concept is fuzzy in nature, it is not infinitely fuzzy, and it often takes value in a certain range. Sometimes, it’s hard to make a clean cut, but there is still a rough line. Some legal concepts contain fuzzy boundaries in themselves, while other legal concepts require the help of other words to distinguish, express or define a certain boundary.

5.3 Features of Fuzziness in Legislative Language

77

The object world is continuous, and there is usually no definite boundary between real object categories. If human beings want to carry the infinite and continuous external world with limited and discontinuous symbols, they must do a good job in the division of conceptual categories and form intermediate fields or open areas, which is the fundamental feature of fuzziness to distinguish from vagueness and ambiguity. A classic example of Zadeh’s fuzzy theory is to use the the “tall” set to deal with fuzzy problems. Although there is no clear boundary between the tall and the short, it is determined that people under 1.5 m are not tall, while people above 1.8 m are undoubtedly tall. Thus, the members between 1.5 m and 1.8 m have correspondingly different membership degrees according to the degree of the cognition of the subject. Professor Chen Yunliang believes that things are only clear in its central part, and its edge zone is fuzzy. After careful analysis, it can be found that “the meaning of almost any terms will expand from the core meaning to the edge, making its extension fuzzy”. Although this sentence is somewhat absolute, it tells a truth: the essence of the definite words that seem to be clear about right and wrong is abstracted after discarding the fuzziness; they can achieve the so-called preciseness by the absolutization of human thinking process. In terms of legislative language, the legislation of all countries in the world will set a low limit for the category of “adult”. However, legislators of different languages will subjectively classify the objective objects according to different criteria. In the legislative history of China, the Qin Dynasty used height as the standard to judge whether a person is adult. Male height of six feet five inches (about 149 cm) and female height of six feet two inches (about 142 cm) are the adult mark, and people less than this standard are minors, generally not punished. The Article 11 of General Principles of the Civil Law of the People’s Republic of China (1986) (hereinafter referred as the Civil Law) stipulated that: “The civilians above 18 years old are adults.” “The civilians above 16 years old but under 18 years old whose main source of income depends on their own labor income are regarded as persons with full capacity for civil conduct.” An exception must be made for citizens who have reached the age of 18 and have physical or pathological disabilities. The Article 17 of the Criminal Law (1997) also stipulates: “A person who has reached the age of 16 shall carry criminal responsibilities for committing a crime.” Compared to the legislation with a low limit of height in Qin Dynasty, it is more consistent with the law of human psychological and physical development and more scientific and semantic certainty to set the lower limit by age to protect the interests of minors and require parties to bear legal responsibility. For another example, the word “judge” undoubtedly refers to the “judicial personnel in court” (Xin 2004) in all legal context, but who can deny that “judges working as lawyers” (Su 2001) described by Su Li in the grassroots rural area of China do not belong to the category of judge? In Su Li’s view, the prototype of the judge includes Kirk, Holmes, Cardozo and other images, but it is not limited to these images. It should include the judges of people’s court in China or the magistrates in the United States, Britain and Australia. Here, the extension of the word judge is expanding and becoming more and more fuzzy, but there is boundary for this concept: those who accept the entrust of state organs, enterprises, groups, parties

78

5 Fuzziness and Legislative Language

and legal privies or the assignment of the court to specifically assist the parties in litigation are definitely not judges, but lawyers. It can be seen that the classification of individuals is accomplished by legislators with thought and language. The standard of classification is formulated by the legislators and the standard body appears in the word meaning of the expression category. If the standard of classification contained in word meaning is not precise and clear, the boundary of the category will naturally be unclear.

5.4 Classification of Fuzziness of Legislative Language The fuzzy words in legislative language refer to the fuzzy and abstract words lacking precise “word object” to signify based on the analysis of modern linguistic theory. Due to the lack of corresponding “word object”, legislative language has the characteristics of fuzziness and abstraction. For example, when we use the linguistic symbol “hand”, this symbol objectively represents a “word object” that can be precisely signified. However, when we talk about “fairness” and “justice”, there is no clear “word object” like “hand”. Therefore, when defining the meaning of these words, it is bound to use other fuzzy and abstract concepts, and these words themselves need to carry out semantic interpretation, which makes the legislative language fuzzier and more abstract (Liu 1999). According to different classification criteria, we can make different classification of the fuzziness of legislative language.

5.4.1 Division Upon Context Changes American scholar Posner believes that there exist two kinds of fuzziness in legal texts: internal fuzziness and external fuzziness (Posner 1994). Internal fuzziness refers to the fuzziness caused by the ambiguity, fuzziness and evaluative characteristics of legal language itself. Here is a classic example. The law prohibits the import of plant fruits, but does not prohibit the import of vegetables. If someone imports tomatoes, the regulation on tomatoes will be a problem. External fuzziness means that the original clear legal terms become fuzzy due to the role of contextual factors, resulting in the change of the extension of the concept. The term “press” in the First Amendment to the United States Constitution originally refers to the newspaper industry, but with the change of the times, the extension of “press” has expanded to include broadcast and radio. According to Posner, fuzzy legislative language can also be divided into internal fuzziness and external fuzziness. Words with internal fuzziness will undergo “synchronic change”, which means that different language communities in the same society have different understanding of the same word. For example, people in the same society will have different understanding of the same word due to their different occupations, so a word may have several “flat meanings”. In civil law, for example,

5.4 Classification of Fuzziness of Legislative Language

79

“good faith purchaser” doesn’t mean kind purchasers, but “one who pays a valuable consideration has no notice of outstanding right of others concerning the purchase.”; “consideration” here is also with a flat meaning, which generally is understood as “the act of thinking carefully about something”, while legal professionals know it as “a fee charged in advance to retain the services of someone”. Similarly, the term “minor” has different meanings in the laws of different countries, because the laws of different countries have corresponding provisions according to the physiological characteristics and cultural factors of their people. Where the age of 21 is stipulated to be an adult include France, Austria, Italy, Belgium, the Netherlands, Thailand, etc.; where the age of 20 is stipulated to be an adult include Switzerland, Japan and other countries.; there are also countries where the age of 18 is stipulated to be an adult, such as China, Britain, Turkey, Hungary and so on. It can be seen that, the different provisions of “adult age” in various countries prove the semantic fuzziness of “minor”. Words with external fuzziness will undergo “diachronic changes”, which means the universally recognized meaning of the same word in one historical period will change or disappear in another period. In this sense, the meaning of the fuzziness of the legislative language is dynamic. For example, what exactly does the word “children” refer to in inheritance law? Perhaps two hundred years ago, many societies understood it only as children born in wedlock, excluding children born out of wedlock. Two hundred years later, however, people’s understanding towards “children” has changed to include not only children born out of wedlock, but also adopted children. This change isn’t due to the change of words, but the broadening of people’s understanding towards the word “children”.

5.4.2 Division Upon Expression Functions According to Channel’s view, there are three main expressions of fuzzy legislative language (Channe1l 2000).

5.4.2.1

Fuzzy Additives

Fuzzy words are attached before or after the concept with clear meaning to represent different membership degrees of category members, making the concept with precise meaning become fuzzy. In Chinese legislative language, words like “以上 (not less than)”, “以下 (not more than)”, “以内 (within)”, “以外 (beyond)”, “不满 (less than)”, “轻微 (slight)”, “严重 (serious)”,”特 (particularly)”, “极 (extremely)” can be used to change the membership degree of fuzzy semantics. For example, “七年以上十年 以下 (not less than seven years and not more than ten years)”,”从轻 (重) 处罚 (give a light、heavy punishment)”, “情节特别严重 (particularly serious circumstances)”, “手段极其残忍 (extremely cruel means)”, “时效不满五年 (less than five years of prescription)”, etc. These words are used to distinguish prototype members from peripheral members of the category, indicating different membership degrees of

80

5 Fuzziness and Legislative Language

category members. “Light” and “heavy” exist by comparison with a certain reference point, and “a light punishment” and “ a heavy punishment” respectively indicates a certain range, if an act goes beyond one certain range, it will definitely fall into the other category.

5.4.2.2

Fuzzy Concepts

Legal concepts can be divided into definite legal concepts and uncertain legal concepts based on the definition of semantics. Definite legal concepts have conventionally covered all the meaningful features of the described object with clear definition, certain extension and small proportion in the whole legal concepts, which does not belong to the scope of this paper. On the other hand, uncertain legal concepts vary in the degree of uncertainty. One is the legal concept with uncertain connotation but closed extension; the other is the legal concept with uncertain connotation but open extension. The former is expressed in words and not limited by context, and the fuzziness here is in a static state. For example, although the connotation of the concepts like “parties” and “litigation” is uncertain, the extension is closed. Thus, these concepts are often defined by enumeration method. For example, “parties” can refer to the victim, the private prosecutor, the criminal suspect, the defendant, the plaintiff and the defendant of the incidental civil action; “litigation” includes counterclaim, debt offset, equitable litigation and any other legal procedures for the determination of rights. The latter often presents a certain value judgement with open extension of concepts. The boundary is moved by people, and the fuzziness here is in a dynamic state. For example, for the concepts of “freedom”, “equity”, “justice”, “reasonable”, “good faith”, different scholars have different understanding and interpretation due to different standards in their minds. Therefore, the boundary of each concept is not fixed and fuzzy.

5.4.2.3

Legal Implication

Some legal concepts seem clear, but in fact contain some obviously clear details, conveying fuzzy meaning in a precise from. For example, Article 49 of the Constitution of the People’s Republic of China (Amended in 2004) stipulated that: “Parents have the duty to rear and educate their children who are minors, and children who have come of age have the duty to support and assist their parents.” In this article, it seems accurate to define children with “who are minors” and “who have come of age”, but in real life, it is difficult to determine the boundary of fulfilling the obligation of “raising” or “supporting” upon whether they are adults. People of different ethnic groups and regions have different living standards and habits, and the labor force of each family is different, so the seemingly certain meaning of “children who have come of age” is still fuzzy.

5.4 Classification of Fuzziness of Legislative Language

81

5.4.3 Division Upon Word Types Chad, the founder of quantitative fuzzy semantics, pointed out that “Words in sentences are mostly names of fuzzy sets rather than non-fuzzy sets” (Jiang 1991: 4). In legislative language, the fuzziness of vocabulary is mainly manifested in semantics. The semantics of nouns, verbs, adjectives, adverbs, pronouns, connectives, numerals and quantifiers are generally fuzzy.

5.4.3.1

Fuzziness of Verb Semantics

Verbs refer to words indicating the action, existence or change of people or things. Human behavior is what the law regulates. Some behaviors can be expressed in relatively precise language, but more verbs that represents action, behavior, change, existence and intention, such as kill, purchase, transport, connive, seek, defend, gamble, etc., cannot be expressed in precise language, but only in a fuzzy way. For example, in our criminal law of “明知故犯 (knowingly committed crimes)”, the concept of “ 知 (know)” is not clearly expressed whether the parties themselves admit to knowing, or the evidence proves that they know, or the judge thinks that they know. Here is another example. As to the concept “投资 (invest)”, in Detailed Rules for the Implementation of the Law of the People’s Republic of China on Wholly Foreign-owned Enterprises, one article stipulates that “外国投资者可以用可自由兑换的外汇出 资, 也可以用机械设备、工业产权、专有技术等作价出资, 还可以用其在中国 境内举办的其他外商投资企业获得的人民币利润出资。(Foreign investors may make capital contributions with freely convertible foreign currency, or in the form of machinery and equipment, industrial property rights, proprietary technology, etc., and with RMB profits from other foreign-invested enterprises established within the territory of China.)” Obviously, there are various ways to invest in China. But what to invest? How to invest? These questions are implicit with the concept “invest”, which are uncertain. “Being” is the opposite of “not being”, which indicates existence. It seems to be definite, but it is not. Although “being” indicates the definite aspect of existence of a person, thing or object, its scope and state of existence are indefinite. For example, “Within the scope of application of the Convention, each State party must comply with all the provisions of the Convention… However, a state party may also declare that it is not bound by a provision or even a part of it, and this is a reservation” (Chen 2005). The word “all provisions” appears in the text, but there is a “reservation”, which indicates that the “being” is uncertain and fuzzy and can be changed into “not being” by the occurrence of the “reservation”—the State party does not need to comply with it.

82

5.4.3.2

5 Fuzziness and Legislative Language

Fuzziness of Noun Semantics

The fuzziness of nouns is most salient in terms of time and space. The semantic edges of time words and the cohesive area between adjacent periods are uncertain, unclear, and highly fuzzy. For example, “a period not exceeding two years” only defines the upper limit of time, but not the lower limit. Under Article 7 of Marriage Law (1981), one of the circumstances under which marriage is prohibited is “suffering from a disease that is not considered medically appropriate for marriage”. As to the word “disease”, here are two examples. The Article 254 of Criminal Procedure Law of the People’s Republic of China (2012 Amendment) (hereinafter referred as Criminal Procedure Law) stipulated that one of the circumstances under which a convicted person sentenced to a fixed term of imprisonment or detention can be temporarily released from prison is “he or she has a serious illness that requires medical parole”. The noun “disease” in each of these articles is clear in its own right, but the meaning of the constitutive noun in the legal articles become fuzzy by the modifier “medically unfit for marriage” and “serious” and “that requires medical parole”. In legislative language, nouns are used a lot. Hobbes believed that, “Printing, though an invention of great genius… But the highest and most beneficial invention is language, which is made up of nouns and names and their connections… Without language, there would be no nation, no society, no contract, no peace among mankind…” (Hobbes 1985).

5.4.3.3

Fuzziness of Adjective and Adverb Semantics

Adjectives are words that indicate the shape, nature, action, behavior, or state of development of people or things. Legal language strives for precision and rarely uses adjectives because of the strong semantic fuzziness in both the adjectives indicating nature and the adjectives indicating state. For example, serious and slight, good and evil, advanced and backward, new and old, fair and unfair, such adjectives not only have their own class and definite characteristics, but also have no clear boundary between the two opposite adjectives, and they can be transformed into each other under certain conditions. In the Criminal Law, there are many fuzzy adjectives, such as huge (amount), serious (plot), bad (attitude), cruel (means), serious (injury), kind, fair, main (source of living), suitable (civil activities), close (relationship), necessary (property), etc. Another example, the Article 137 of the General Principles of the Civil Law (1986) states: “If there are special circumstances, the people’s court may extend the period of limitation of action.” Here, the expression “there are special circumstances” is also fuzzy language. The law does not specify the reasons or standards for the extension of the statute of limitations. Legislators presuppose this term of extending the limitation of action for the purpose of providing judges the discretion to ensure that the right holder can still get legal protection when he cannot temporarily exercise the right of claim due to objective obstacles. As to the Chinese adjective “损害的(damaging)”, Article 29 of the Foreign Trade Law of the People’s Republic of China (1994) stipulates:

5.4 Classification of Fuzziness of Legislative Language

83

“ 因进口产品数量增加, 使国内相同产品或者与其直接竞争的产品的生产者受 到严重损 损害或者严重损 损害的威胁时, 国家可以采取必要的保障措施, 消除或者 减轻这种损 损害或者损 损害的威胁。(Should the normal production of some of the domestic goods be in great harm or under great threat of such harm due to the increasing import of same kinds of goods or similar goods that are in severe competition with the domestic ones, the State may take any countermeasures to expel or mitigate such harm or threat.)” The translated article used the phrase “in great harm” or “of such harm” to express the meaning of Chinese adjective “损害的 (damaging)”, we can still find that it is self-evidently fuzzy. Here comes the question. What is in harm or damaging? What degree of the impact on domestic producers of an increase in the quantity of imported products would be damaging? These definitions are uncertain. The fuzziest adjective in the text is “great”: to what degree would be regarded as “great”? All of these problems need to be determined by the State and the necessary measures shall be taken accordingly. In the operation of international economy, it is absolutely necessary for the state to manage and control the international trade of goods, which is an important part of the economic sovereignty of the state. However, some countries take advantage of the fuzziness of these words to arbitrarily define the scope and criteria of “great” and “damaging”, deliberately misinterpret and abuse them, and blatantly declare that their domestic producers have been imposed “great” damage or threat. They restrict the international trade of goods or simply exclude them from their countries on the grounds of anti-dumping and safeguard measures, in order to eliminate or mitigate such injury or threat. What they do is not to maintain a fair and free foreign trade order in accordance with the law, but to defend themselves by sophistry and bully developing countries by playing language games to achieve their ulterior motives. Adverbs indicate degree, range, means, frequency and so on. They are often used to modify verbs and adjectives. Most of the fuzzy natural language are adjectives and adverbs, which are widely used in judicial documents, and more cautiously used in the legislative language, but there are still many of them. For example, the Article 27 of the Constitution (2004 Amendment) stipulates: “all state organs… constantly improve the quality and efficiency of their work… often maintain close connection with the people…”. The Article 78 of Criminal Law (1997) stipulates: “…during the period of execution, if criminals conscientiously comply with prison rules… or make contributions …”. Besides, the Article 13 of the Civil Law (1986) stipulated: “…the mentally ill who cannot fully identify their own behavior are persons with limited capacity for civil conduct …”. The use of the above fuzzy words greatly helps the law cope with various unpredictable behaviors and events that occur in real life.

5.4.3.4

Fuzziness of Quantifier Semantics

Phrases like “数额较大 (a relatively large amount)”, “数额巨大 (a large amount)” and “数额特别巨大 (a particularly large amount)”, etc., appear several times in the Criminal Law, which are all fuzzy phrases expressing the concept of quantity. They are not specified in the article, making it difficult for people to grasp

84

5 Fuzziness and Legislative Language

the precise meanings. Besides, the Article 37 of the Law of the People’s Republic of China on Administrative Penalty (1996) (hereinafter referred to as the Administrative Penalty Law) stipulates: “When collecting evidence, administrative organs may obtain evidence through sampling.” In this article the “obtain evidence through sampling” also involves the concept of quantity. What proportion of evidence should be obtained? And how many “samples (pieces)” should be taken? This article fails to state.

5.4.3.5

Fuzziness of the Semantics of Prepositional Phrases

Article 68 of the Civil Law (1986) stipulates: “If in the principal’s interests an entrusted agent needs to transfer the agency to another person, he shall first obtain the principal’s consent. If the principal’s consent is not obtained in advance, the matter shall be reported to him promptly after the transfer, and if the principal objects, the agent shall bear civil liability for the acts of the transferee; however, an entrusted agency transferred in emergency circumstances in order to safeguard the principal’s interests shall be excepted.” In this article, the meaning of prepositional phrase “in emergency circumstances” is unclear with no detailed explanation for what circumstance can be regarded as an emergency. Similar fuzzy prepositional phrases include “for special reasons”, “on occasion”, “except special circumstances”. These fuzzy prepositional phrases are not be specifically stated in relevant articles (Zhou 2002: 163).

5.4.3.6

Fuzziness of the Semantics of Legal Terminology

In terms of legal terminology, the legal vocabulary system is not independent of the national common language, but has transformed the national common language in accordance with the requirements of legislation and judicial work in the longterm use of the national common language, so as to form a set of vocabulary with legal professional characteristics. Legal terminology has the most precise, fixed and single semantics in legal language. Each term expresses a specific legal concept. The semantics of legal terminology is relatively clear and cannot be replaced by other words. This is the principle of “one term with one concept” in legal language. Nevertheless, legal terminology is inevitably fuzzy.

5.5 Conclusion Fuzziness is an important way for people to recognize the world, which exists objectively without human will. As a natural language, legal language must use fuzzy words. Accuracy and fuzziness are two important features of human natural

References

85

language, reflecting the characteristics of human thinking. In legal language, fuzziness is different from vagueness and ambiguity, which are the negative results of people’s improper use of language and should be avoided in the legislative process. In legal language, some of the use of fuzzy words is deliberately made by legislators taking advantage of fuzzy language; some are forced to act due to the inborn deficiencies of natural language. Therefore, some scholars advocate that the former should be called active fuzzy language and the latter passive fuzzy language (Jiang 2004). Under certain circumstances, active fuzzy language can not only play an irreplaceable role in precise language, but also make legal language more accurate and generalized. The improper use of passive fuzzy language not only makes it difficult to operate laws and regulations in reality, but also leaves opportunities and space of “power rent-seeking” for some poorly qualified judicial personnel, which will ultimately damage the legitimate rights of citizens and affect the whole society’s belief in law.

References Alston,William. 1988. Philosophy of Language. Trans. Mao Bo. Beijing: The Joint Publishing Company ltd. Channell, J. 2000. Vague language. Shanghai: Shanghai Foreign Language Education Press. Chen, Yunliang. 2002. The analysis of the fuzziness of law. Law Review 1:5. Chen, An. 2005. An introduction to international economic law. Beijing: Peking University Press. Chen, Zhian, and Wen, Xu. 1996. A review and expectation of the fuzzy linguistic study. Journal of Foreign Languages 5:21. Ge, Hongyi, and Chen Nianbing. 1997. The universality, certainty and rationality of law: The mission of modern Chinese legislation and jurisprudence. Chinese Journal of Law 5. Hart, H.L.A. 1996. The concept of law, trans. Zhang Wenxian. Beijing: Encyclopedia of China Publishing House. Hobbes, T. 1985. Leviathan, trans. Li Sifu and Li Yanbi. Beijing: The Commercial Press. Jiang, Youjing. 1991. An elementary introduction to fuzzy rhetoric. Beijing: Guangming Daily Publishing House. Jiang, Zhenchun. 2004. Analysis of the fuzziness of legal language. Social Sciences in Guangxi, 2004(7). Kaufman, G., and S. Hasmer. 2002. The introduction to contemporary philosophy of law and legal theory, trans. Zhen Yongliu. Beijing: Law Press. Lakoff, G. 2005. Cognitive linguistics: What it means and where it is going. Journal of Foreign Languages 2. Lenin. 1990. The collected works of Lenin: Volume 55. Beijing: People’s Publishing House. Liu Suzhen. 1999. Legal language and word objects. Journal of Shanghai University of Political Science and Law 5. Nian, Ya. 2003. The analysis of several issues on the external security of companies: The evaluation of the clause 3 of article 60 in the Company Law. Science of Law 6:10. Pan, Weida, and Wenqi Liu. 2000. An introduction to anglo-American Law. Beijing: Law Press. Posner, R. 1994. The problems of jurisprudence, trans. Su Li. Beijing: China University of Political Science and Law Press. Shi, Anshi. 1988. Fuzzy semantics and its degree of fuzziness. Chinese Language 1:11. Shi, Anshi. 1994. The study of semantics. Beijing: Language & Culture Press. Su, Li. 2001. The legal person in rural society. Law and Social Development 2:7.

86

5 Fuzziness and Legislative Language

Taylor, R.J. 2001. Linguistic categorization: Prototypes in linguistic theory. Beijing: Foreign Language Teaching and Research Press. Wang, Yan. 2001. Semantic theory and language teaching. Shanghai: Shanghai Foreign Language Education Press. Wu, Tieping. 1998. The fuzziness of “sea”, “ocean” and “lake”. Foreign Languages and Their Teaching 7:14. Wu, Tieping. 1999. Fuzzy linguistics. Shanghai: Shanghai Foreign Language Education Press. Xin, Chunying. 2004. A dictionary of law. Beijing: Law Press. Xu, Youping. 2006. The application of the prototype theory in the elimination process of vagueness of legislative lexicons. Journal of Guangdong University of Foreign Studies 7. You, Qingxue. 2001. A survey of the ambiguity studies in Chinese. Chinese Language Learning 4:18. Zhang, Mingkai. 1997. Properly handle the relationship between careless and meticulous to strive to develop a clear and coordinated criminal law. Studies in Law and Business 1:9. Zhou, Xiaolin. 2002. Fuzzy words should be cautiously used in legal provisions. // A new horizon of linguistic and legal study: Collections of papers of the first academic seminar on language and law. Beijing: Chinese National Linguistics Association Zhou, Julan. 2005. The semantic analysis of fuzzy legislative language. Journal of Jiangsu Police Institute 4:13.

Chapter 6

Reasons for the Fuzziness of Legislative Language

As we all know, there is nothing that does not contain contradiction, and without contradiction, there is no world. Chinese ancients said as early as in Zhouyi·Xici that “One Yin and one Yang is Taoism”. Linguistics is full of contradictions. Accuracy and fuzziness are a pair of contradictions. We have already been familiar with the importance of accuracy, but we should not ignore the other side of the contradiction due to the importance of accuracy. While meeting the requirement of accuracy, fuzzy rhetoric often has rich connotation and implicit speech style. Legislative process is the unity of cognitive process and legal innovation process. In this process, there is a dual conversion relationship, that is, from the due mode of social order to the legislative purpose and from the legislative purpose to the legal norms. The former is a process in which legislators grasp and regulate the social order to make it subjective through purposeful cognitive activities, thus forming an ideal blueprint for legal adjustment and legal order in subjective consciousness and establishing the value orientation of legislation. The latter is a process in which legislators express legal purposes, and create legal norms through careful design, cautious selection, rational construction in the use of language. However, it must be pointed out that no matter as a process of cognition or a process of legal innovation, legislation can neither fully reflect the requirements of objective laws, nor can the legal norms established by it fully realize the functional expectations of the society. Therefore, as an objective linguistic phenomenon, the appearance of fuzzy language in legal field itself is not good or bad, but the key lies in its appropriate and proper use. The existence of fuzziness in legislative language has both objective and subjective factors. Specifically, there are several reasons for the fuzziness of legislative language.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language, https://doi.org/10.1007/978-981-99-2633-6_6

87

88

6 Reasons for the Fuzziness of Legislative Language

6.1 Subjective Reason of the Legislative Subject The legislative subject is the bearer of legislative work, and all the legislative activities are the process and results of creative activities of the legislative subject. In China, the National People’s Congress and the Standing Committee of the National People’s Congress exercise state legislative power; the State Council enacts administrative regulations in accordance with the Constitution and laws; the People’s Congress and its Standing Committee of a province, autonomous region and municipality directly under the central government may enact local regulations in accordance with the specific conditions and practical needs of their respective administrative regions, provided that they do not contravene the Constitution, national laws or administrative regulations; the ministries and commissions of the State Council, the People’s Bank of China, the Audit Office and the organs directly under the State Council with administrative functions may enact rules and regulations within the scope of their authority in accordance with the laws, administrative regulations, decisions and orders of the State Council; the people’s government of a province, autonomous region, municipality directly under the Central Government and a larger city may enact rules and regulations in accordance with the laws, administrative regulations and local rules of their own provinces, autonomous regions and municipalities directly under the Central Government. In addition, the Hong Kong and Macao Special Administrative Regions also have certain legislative power.

6.1.1 Cognitive Limitations of Legislative Subject Legislation is a process of subjective reflection of the objectivity. Social laws and legal phenomena belong to objective category and are the profound social foundation of legislation. The primary prerequisite of legislation is to understand and grasp social laws and legal phenomena and transform them into legal purposes. Legal phenomenon refers to the phenomenon stipulated by law, which can lead to legal consequences and cause the generation, change and elimination of legal relations. Frank, the representative figure of realistic jurisprudence, believed that the social relations adjusted by law are different from tangible objects. Law deals with the most complex aspects of human relations and faces the chaotic and unpredictable life (Gu 2004). The complexity of the legal phenomenon and the limitation of the legislative subject’s cognition determine that the legislative language must use fuzzy words. Some of the legal phenomenon itself has unclear and fuzzy boundaries and the boundaries of some legal things (phenomenon) are fuzzy in people’s subjective world. If the former is called objective fuzziness, then the latter is subjective fuzziness. To express fuzzy things, whether objective or subjective, there is no choice but to use the corresponding fuzzy words. Even for the most common but important legal concepts such as “crime” and “non-crime”, people’s subjective cognition of them only has a relatively rough boundary, not an absolute one. For example, Article

6.1 Subjective Reason of the Legislative Subject

89

13 of the Criminal Law (1997) stipulates: “All acts that endanger the sovereignty, territorial integrity and security of the state, … and other acts that endanger society that shall be punished by criminal penalties in accordance with the law are crimes, but if the plot is significantly slight and the harm is not big, the act will not be considered as a crime.” Apart from the fact that “significantly slight” and “harm is not big” are expressions with fuzzy semantic boundaries, there is also a problem of positioning and demarcation between “significantly slight” and “slight”, and between “not big” and “big”. The question that arises here is: whether those illegal acts that fall somewhere between “significantly slight” and “slight” are crimes; whether those acts belong to “crime” or “non-crime” (Jiang 1995). Western scholars have studied and discussed on the issue whether abortion constitutes homicide, but end up with nothing definite. The fundamental reason is that there is no clear boundary between the fetus and the fertilized egg. This phenomenon of unclear boundary is common in the field of legal activities, such as the definition of the term “night” in the British law aforementioned in order to distinguish the crime of burglary from the crime of theft. Historically, the pace of legal development has always lagged behind the speed of scientific and technological development. As people’s ability to understand the world is gradually developing, there will inevitably be some “blank” areas, namely “fuzzy” areas, in the process of the evolution of law promoted by the development of science and technology. For example, mental manipulation (such as drugs) can interfere with the freedom of human will, and should the accused person in this state be liable for the crime? Is euthanasia for a dying patient homicide? Is the online signature through a computer have the same legal effect as signing your name by hand? Will the emergence of human cloning change the current definition of “parents”? …So many issues make the original legal concepts become fuzzy that they not only force people to reconsider old concepts, but also introduce law into various areas where it has never involved before. As Lu Yongxiang, president of the Chinese Academy of Sciences, said, the world is making new breakthroughs in science and technology, and a new revolution in science and technology is on the way. The speed of scientific and technological innovation, transformation is accelerating, interdisciplinary integration is speeding up, and new disciplines are continuously emerging. Changes in science and technology and the times has posed new challenges to the field of jurisprudence and linguistics. Nowadays, China’s society is developing rapidly, concepts of tradition and modernity, advancement and backwardness, the East and the West, nationality and globalization are engaged in a fierce dispute, a robust rule-of-law society has not yet been finally established. Law should adapt to the development of society and maintain relative stability, so the stability of the law contradicts with the variety of society. There is no corresponding law to regulate the emergence of new things, leading to the loopholes in the law. The situation has changed, but the law does not change, showing its hysteresis. Society is a complex group, which cannot be completely described with scientific and precise language. Social life is complex and ever-changing, and the law must try to have the maximum coverage. However, human cognition is constrained by a series of subjective and objective factors such as the law of change and development, the practical scope,

90

6 Reasons for the Fuzziness of Legislative Language

positions, perspectives, methods and knowledge of people, etc. Thus, legislators are unable to fully understand the various complex situations under existing conditions, let alone make accurate and complete expectations of new situations that may appear in the future period. There are always more or less some gaps and loopholes, that is the reason for the emergence of “gray areas”. Since the development of objective things, the expression of new phenomenon has often emerged in legislation. For example, English word “Internet” can be translated to both “互联网 (hu lian wang)”and “因 特网 (yin te wang)” in Chinese. The former is mostly used in legal language, while the latter is more often used in the social language. It is hard to determine which one is more accurate.

6.1.2 Intentional Fuzziness of Legislative Subject Legislative sociology believes that legislation is a process in which the legislative subject recognizes, grasps and expresses the relationship of social legal rights in accordance with its power and legal procedures. Here, legislative sociology represents its uniqueness from three perspectives. Firstly, the legislator is regarded as the representative of social public interests, which is diversified. Different legislative subjects represent different interest groups. The whole legislative process is interwoven with arguments and compromises of different claims and ideas. The famous American scholar Charles Beard has correctly pointed out through his analysis of the interest conflicts in the American constitutional process that, “the whole doctrine of the historical economic interpretation is based on the idea that, in general, the evolution of society is the result of the competition among interest groups within society – one side embracing the change while the other side opposing it.” He said, “I have read letters, papers and documents about the Constitution left by various people who participated in constitution-making. I was surprise to find that many of the Founding Fathers believed that the disputes over the Constitution were primarily about the conflict of economic interests, and such differences in economic interests were more or less geographically or regionally distributed” (Beard 1989). Due to the interest mechanism of legislation, in the end, legislators can only use flexible language, namely fuzzy language, based on certain legislative purposed and value judgment when necessary. According to the above analysis, fuzziness is an inevitable result of the interaction between subject and object, which is an important way for people to recognize the world. It is different from “vagueness”, which often refers to the negative results of people’s improper use of language and should be avoided in the legislative process as much as possible. Fuzziness is uncertainty. In legal language, fuzziness has positive effects, which is used deliberately by legislators with the advantages. As Xu Guodong believed, with the development of social material production and human thinking ability, the goal pursued by legislators in making laws is no longer satisfied with the legalization of experience, but tries to extend their legislative power to things beyond experience, trying to expand the scope of law as much as possible and increase the applicability of law. The fundamental rule that

6.1 Subjective Reason of the Legislative Subject

91

law has fuzziness is the starting point of authority of legal reasoning (Xu 1992). It is based on this point that legislators pay more and more attention to and adopt fuzzy language to further expand the scope of law. Article 114 of the Criminal Law (1997) made following provides the following article for crimes of endangering public security: “Whoever endangers public security by setting fires, breaching dikes, causing explosions, administering poison; or employing other dangerous means to sabotage factories, mines, oilfields, seaports, rivers, water sources, warehouses, dwellings, forests, farms, threshing grounds, ranches, important pipelines, public buildings, and other public and private property is to be sentenced to not less than three years but not more than 10 years of fixed-term imprisonment in cases where serious consequences have not been caused.” In this article, the phrase “and other public and private property” is set for possible new legal phenomena. The legislation of Western countries is also the same. For example, Criminal Law of the United States has the following definition of emergency escape: If a man is forced by genuine necessity to commit a crime, he may have a defense provided what he did not more than was necessary and the evil inflicted by his action was not disproportionate to the evil avoided. Similarly if a man is forced by threats of death or serious personal injury to commit an offence, he may have a defense.

In this example, “genuine” “disproportionate” and “serious” are all fuzzy words. In addition, it is common to see such punishment rules as “a fine of not more than $1,000”, “not more than 6 months” and “not less than 3 years” in the law. Another example, Article 20 of the Criminal Law (1997) stipulates: “Criminal responsibility is not to be borne for a defensive act undertaken against ongoing physical assault, murder, robbery, rape, kidnap, and other violent crimes that seriously endanger personal safety that causes injury or death to the unlawful infringer since such an act is not an excessive defense.” In this article, “other violent crimes that seriously endanger personal safety” is an expression of the fuzziness of legislative language. Due to the various forms of violent crimes in real life, it is difficult for people to express them one by one. In order to make up for this deficiency, the article adds the fuzzy expression “other violent crimes that seriously endanger personal safety” after enumerating the legal phenomena of typical violent crimes, which makes the statement of this article more precise with wider coverage and gives a general definition of various violent crimes. There have always been connections between legal principles and moral principles. The scopes of their dominance have many overlaps and intersections. The use of these fuzzy words gives law enforcers the opportunity to exert their own intelligence to combine the principle of conscience and the principle of fairness and justice, and to creatively develop case law, so as to make up for the limitations of statute law and constantly improve the legal system. On the premise of accurately grasping the gist of the law, appropriate implementation of grace beyond the law will reflect humanitarian principles. Secondly, the legal procedure is the “fetter” to prevent the subjective and capricious behaviors of legal operators in the legal instrument system, which is also a fixed procedure and legal mechanism to ensure that the law achieves the goal of social

92

6 Reasons for the Fuzziness of Legislative Language

adjustment and the smooth operation of the legal system. The concern of legislative sociology on legislative procedure includes not only the fairness and legitimacy of the legal procedure, but also the evaluation of the actual impact of the legislative procedure on the legislation and its social significance. Article 79 and Article 82 of the Criminal Law (1997) clearly stipulate that the execution organ must submit an application to the intermediate people’s court for commutation of a criminal’s sentence or parole, and the people’s court will order the commutation of a criminal’s sentence or parole for “those who demonstrate true repentance and performed meritorious service”. Superficially, these two fuzzy rules are intended to encourage the positive rehabilitation of criminals. In fact, the legislator grants the prison criminal punishment power awhile granting the court procedural supervision over the process of prison law enforcement, because losing the power of supervision is extremely dangerous. Thirdly, legislation is a highly technical social engineering. The influence of legislative technology on legislation is very significant. When making laws, due to legislative technical considerations, legislators will intentionally use fuzzy language in some cases. For example, in provisions of the Criminal Law involving state secrets and personal privacy, some fuzzy language will be chosen to express the relevant legal content in legislation, in order to prevent the disclosure of state secrets and protect the reputation of citizens. Such is the case with the use of fuzzy expressions as “the odious circumstances”, “violation of a woman in turn”, “molest”, which are used in the crimes of rape and indecent assault against women as stipulated in Article 236 and Article 237 of the Criminal Law (1997). Fuzzy words should be used correctly in legislative language and the judicial language. Jurisprudence is the study of human beings in essence, so the respect and care for human must be paid attention to in the process of law application. For example, in criminal or civil cases involving rape, molestation, insult, defamation, etc., it is inevitable to involve the privacy of the parties. The detailed depiction of this part of the content is bound to run counter to public morality and social morals. The re-stimulation of the victim’s feelings and the violation of their right of privacy will often cause serious effects, which can be avoided with the use of fuzzy language (Jia 2002). Case 1: The defendant Wang repeatedly went to the school reception office, stole a number of young female students’ letters from the letter rack. After opening and reading letters without permission, ... he wrote obscene words, drew obscene pictures, then put the letters back in the envelope, seal it, and put it on the letter rack. Case 2: … Li taunted Chen with obscene language and insulted Chen for her infidelity before marriage… That night, Chen committed suicide by throwing herself on the rail. The above two cases use fuzzy language to skillfully summarize the case, which not only gives a complete description, but also conceals the content that is not suitable for narration. This is exactly the use of fuzzy language. Fourthly, legal language is the carrier of legal norms. The generality of legal norms refers to the fact that legal norms provide a pattern, standard or direction for general

6.2 Complexity of the Facts of Legal Relations

93

behaviors of people. Its object is abstract and general people, rather than concrete and specific person, and it can be applied repeatedly in the same situation, not just once (Fan 1995). This feature requires legislators to pursue maximum generality in the selection of certain words when making laws, so as to reflect the feature of universal application. For example, Article 4 of the general provisions of the Criminal Law (1997) stipulates: “Everyone is equal before the law in committing crime. No one is permitted to have privileges to transgress the law.” This is a provision on the principle of equality of all persons before the criminal law. In order to reflect the equality of the application of Criminal Law, this article uses the fuzzy expression of “everyone” to enhance the inclusiveness of the application of Criminal Law with the greatest generality, and also enhance the fuzziness. The Fifth Amendment to the Constitution of America also stipulates: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, … nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself.” Here, “any person” and “any criminal case” represent the greatest generality but also great fuzziness.

6.2 Complexity of the Facts of Legal Relations Law is used to adjust social relations. Legal adjustment stems from people’s demand for social order. The means of maintaining social order include habit adjustment, moral adjustment, policy adjustment and legal adjustment. Among them, legal adjustment generally does not directly adjust typical fuzzy affairs, nor will it adjust all social relations. Legal adjustment is an important part of social adjustment. Law adjusts the subjects that contain important interest relations, the needs of the subjects, material and non-material wealth that can satisfy the demands of the subjects, and the subject behaviors that are brought into the scope of legal adjustment (Gong 2002). In real life, due to the various material and spiritual needs of people, the objects (legal facts) directed by the rights and obligations of the subject of legal relations are also varied, including material and immaterial wealth and behavioral results. For example, Article 84 of Criminal Procedure Law of the People’s Republic of China (1996 Amendment) stipulates: “Any unit or individual, upon discovering facts of a crime or a criminal suspect, shall have the right and duty to report the case or provide information to a public security organ, a People’s Procuratorate or a People’s Court.” Here, “any unit or individual” used to be “organ, group, enterprise, business, unit and individual” before the amendment. The use of more fuzzy words extends the rights and responsibilities of the subject in this article and present more rigorous meaning. The complexity and the inexhaustible factor of legal facts breed the existence of legislative language fuzziness. Article 130 of the Criminal Law (1997) stipulates: “Whoever illegally carries guns, ammunition, controlled knives and tools, articles of an explosive, combustible, radioactive, poisonous or corrosive nature into a public place or public transportation vehicle, thereby endangering public safety, is to be

94

6 Reasons for the Fuzziness of Legislative Language

sentenced, when the circumstances are serious, to not more than three years of fixedterm imprisonment, detention, or control when the circumstances are serious.” In this article, “articles of an explosive, combustible, radioactive, poisonous or corrosive nature” is a fuzzy expression with very broad extension and high generality. If lawmakers were to list such items explicitly, it would take years to get there. Therefore, law has the greatest scope to the complicated social relations. “There is no escape from the arm of the law”, and legislators inevitably use vague words to summarize more meanings. In addition, it should be pointed out that what we call the boundary fuzziness of things or non-things includes not only the boundary fuzziness of the entity itself, but also the boundary fuzziness of the category to which the entity belongs. For example, tomato, like peas and soybeans, is a fruit of plants, but it has the characteristics of vegetables. People often eat it as a vegetable in daily life, which will cause difficulties in the classification of legislative language. If the law were to impose a tax on imported fruits but not on imported vegetables, there would be plenty of lawsuits over such vague concepts. This example shows that, due to the diversity of attributes of things, some things in a category may have some characteristics belonging to other categories, and the uncertainty of category boundary cannot be covered by fuzzy language.

6.3 Limitations of Language Expression System Language is employed as the carrier to express law. From legislation to judicature, legal texts to law enforcement, people everywhere use language as the mediator of communication. As a semiotic system, however, language has its own limitations of expression.

6.3.1 Non-Existence of One-to-One Correspondence Between Language and the Objective World The concept of law is the product of human language rather than objects in nature. Actually, language has its limitations. As the carrier of thoughts, language is the medium of thought exchanges, just as currency is the medium of exchange for goods. But language is far less abundant than thoughts, it is impossible for people to express complicated and rich thoughts even by employing all languages in the world. The world is infinite while languages are finite. As Bodenheimer once said, “Matters in the world are more than words used to describe them (Bodenheimer 1974).” Facing abundant matters in the world and complicated thoughts, even languages

6.3 Limitations of Language Expression System

95

cannot cover them. “Leave nothing out, leave everything in” is just a great wish, however, “what one says is not what one means and cannot express what one really means” is a real scenario of language expression. German language philosopher Martin Heidegger once stated, “existence in the world can’t be expressed. In realistic context, it is impossible to use definite and sole language symbols because language is to use finite symbols to describe real world with infinite possibility. A language symbol refers to numerous facts (Heidegger 2014).” New analytical-positivist Jurist H.L.A. Hart once stated from the perspective of semantic analysis, that any words have a stable core meaning, which is the core of language’s meaning as well as relatively fuzzy board meaning, which is their open structures. In the core ranges of word meanings, people will not argue whether an object is what a word points to. For example, people are certainly sure that “car”, “electric car”, and “truck” lie in the range of “vehicle”. But when there exits the “open structures”, people will argue over their meanings, contents and ranges. For example, it is hard to determine whether “bicycle”, or “skateboard with wheels” belongs to the range of “vehicle”. Legal terms are composed of words. “Signifier” and “Signified” of language itself are not consistent with each other, and sometimes even have gaps “to the degree of totally irrelevance”. Meanwhile, the use of legislative language also needs conform to settled patterns and expression manners, which leads to the limitation of word choice. Therefore, if we don’t use fuzzy languages, it will be an impossible mission that finite legal languages take on tasks of loading and conveying infinite legal information. We all know a number of legal terms lack concrete “word object”. According to SymbolTriangle Theory by Ogden and Richards (see chart below), “word” must have its referent. That is to say, only such a triangle relationship or triangle combination of “word-concept-referent” can produce meaning. For example, the word “dog” refers to a concrete lively dog. In this situation, the word “dog” is linked with specific objective referent through concept which is an animal with four legs as a doorkeeper. Concept has a direct link with its referent, so a solid line can be drawn between both. So can be between concept and word. By contrast, word has no direct link with its referent, which means their relationship can be random or received, so a dotted line can be seen here. If a doorkeeper with four legs was named as “men” or “cat” at the beginning, its word could be so now rather than “dog”. Such randomness can also be proved by the fact that doorkeeper owns different names in different languages.

96

6 Reasons for the Fuzziness of Legislative Language

Saussure doesn’t agree to regard language as a simple link between word and thing. No matter what kind of language, it is hard to say what some words exactly point to. There are also many such “words” in legal language whose referents are fuzzy that we cannot find direct and specific relations pairing them with objects. Legal terms such as “obscenity”, “insanity”, “justice”, “freedom”, “morality”, “right” don’t point to as specific and equivalent word objects as the word “dog” does, but they do have meanings. Though Symbol-Triangle Theory exists some deficiencies and is not rigorous enough, we still can clarify the distinctions between the two types of words above with the help of this theory. Furthermore, if we want to define these abstract terminologies, we need to resort to other fuzzy concepts which themselves also require semantic explanations. In this way, “legal language would almost become an exhibition of abstract concepts”.

6.3.2 The Polysemy of Language The uncertainty of language comes from the polysemy of language, which means that words show different meanings in different contexts. English scholar Geoffrey Leech states in Semantics that word meanings can be divided into seven types: conceptual meaning, connotative meaning, social meaning, affective meaning, reflected meaning, collective meaning, and thematic meaning. Despite their efforts to use precise words, lawmakers are still not able to avoid polysemous words. For example, words such as “slight”, “severe” are concepts often seen in legal texts, but it is hard for us to give them precise definitions. According to Professor Su Li, there is no distinction between core meanings and board meanings concerning legal concepts. Nor is precise words and imprecise words. Words are endowed with meanings by people to realize certain goals (Su 1997). People’s goals change constantly along with their desires, which causes the uncertainty of word meanings. Besides polysemy, language also has relativity, namely meanings of word are different in according situations, sometimes even completely opposite. For example, in the Criminal Law (1997), the

6.3 Limitations of Language Expression System

97

definition of “force” in Article 263 and that in Article 238 has different meanings and different requirements in degree, due to the huge discrepancies in sentence standards of specific provisions. Meanwhile, law is a highly professional subject and the uncertainty caused by polysemy of legal terms is a focus of legal language, which accounts for a very large proportion. The difficulties we encounter when learning legal language and the misunderstanding of legal concepts are directly related to this. The meaning structures of such terminologies are composed of legal meaning and general meanings. Because of their distinctions in meanings, we need to exclude general meanings irrelevant to legal issues so as to make sure specific legal meanings, otherwise, that will give rise to polysemy. For example, in the sentence “He delivered a lengthy apology”, we cannot conclude “apology” here is equal to “defense” unless we put it into law field to exclude its general meaning. More examples can be seen in general words including “minor”, “code”, “complaint”, “deed”, “defense”, “degree”, “box”. These words all carry specific legal meanings, therefore, only law professionals or people specializing in law are able to understand legal meanings carried in these general words. “In terms of the concept contained in the word itself, the more meanings and content the word carry, the fuzzier it will be. But the word itself is bound by certain context. So, in a given register, the meaning is relatively clear” (Wu 2000: 105). Legal concepts develop rapidly but terminologies about legal concepts are limited at the same time. Therefore, polysemy of specific legal terminologies cannot be avoided, as well as its fuzziness. However, using a small amount of language units to express abundant legal concepts is economical and coincides with language development rule.

6.3.3 The Flexibility of Language Meaning The infinity of the objective world and the finiteness of its language determine that there must be a word representing many objects. At the same time, when a word is just formed, its connotation may be certain, but as time goes by, its connotation will expand to the edge, and thus derive new meanings. The meaning of a word is gradually developed, formed by the constant emergence of facts. For example, what exactly does the word “children” refer to in the law of inheritance? Perhaps 200 years ago, many societies understood it only as legitimate children, excluding those born out of wedlock. Two hundred years later, however, people’s understanding of “children” has changed to include not only children born out of wedlock, but also adopted children. This change in understanding is not because the words have changed, but because people’s understanding of “children” has changed. Likewise, two hundred years ago, “the press” in the 1st Amendment to the Constitution of the United States explicitly refers to “newspapers”. As times go by, “the press” has expand connotations to broadcast, television, and the Internet, etc. Therefore, languages will never be as precise or definite as mathematics formula. Some people may suggest that we can express in the form of logical symbols in legitimate texts so as to achieve definition of legal languages. However, we have

98

6 Reasons for the Fuzziness of Legislative Language

to take into account of public ability to understand and receive languages in the process of legislation, which makes it impossible to adopt artificial languages like mathematics or logical symbols as legal words. As laws regulate people’s deeds, they have to be written in familiar nature languages to make sure everyone can enjoy their own rights. Legislative words have to be accurate and concrete in meanings, as well as easy to operate, but also require meticulous, reasonable, and fully-developed meanings. Accuracy is the soul of legislative language, but the use of fuzzy language is unavoidable. When it comes to legislative language, precision and fuzziness work hand in hand to produce better legislative texts.

6.4 Characteristics of Chinese Characters Languages are not merely symbols, but also tools of expression of thought in certain form of national culture (Shen 1988). Languages are products of certain history and culture and various cultural phenomenon in history would exert influence on them. Humboldt famously said, “the national language is national spirit; national spirit is national language. The unity of the two is greater than any imagination” (Humboldt 1936). According to Humboldt, language features a nation most and is the external representation of national spirits, while carries history and culture of a nation. Therefore, language research must be combined with that on history, culture and customs of a nation. Languages, from its formation, collocation, organization to practice, are deeply rooted in certain cultures. Among different elements of languages, the relationship between semanteme and culture plays an important role in the bilateral relationship between language and culture. Semanteme is the basic unit in language communication system. Semanteme and cultural facts around it permeate and influence each other. “Cultural meanings of languages are first as well as most externally demonstrated in words. Culture, from broad or narrow understating, will eventually be recorded and expressed by language, and become targets reflected by words” (Su 2008). As Ji Xianglin points out that “Indo-European languages in west, especially those oldest ones such as Vedic and Sanskrit, vary completely in their forms, so their meanings can be judged from one word. Contrarily, Chinese doesn’t change in their forms, which makes it impossible to decide their meanings from only one word. Only by putting them into phrases or sentences can their meanings be decided. Therefore, the Chinese people, especially the Han ethnic, in the process of using Chinese language, are subconsciously used to universal associations and to the ideal of the whole” (Ji 1992). It’s true that phonograms account for 90% of Chinese language since its development. But if we analyze Chinese functions of indicating the meaning and suggesting the pronunciation, it’s not hard to find phonetic symbols and ideographic symbols show weak functions. At first, as for phonetic symbols, their phonetic function is not stable. For example, only 25% phonograms can match phonetic symbols completely up with their pronunciation. A majority of phonetic symbols only provide the “tendency” of pronunciation or the “scope” of pronunciation. Furthermore, phonetic symbols only indicate certain

6.4 Characteristics of Chinese Characters

99

Chinese belong to phonegrams. Second, ideographic symbols also exist troubles in its ideographic function. There are three major reasons: firstly, the form of the symbol itself is varied. For example, forms including “心”and “忄” both indicate the meaning of “heart”; secondly, the meaning of the symbol is usually fuzzy and changeable. Take Chinese characters “狂 (mad)”, “狼 (wolf)”, “猛 (fierce)”, and “ 狱 (prison)” as example. They all have bound radicals “犭”, but they are different in their parts of speech and go further in their meanings; and thirdly, the formation of Chinese characters is not fixed. For example, the character “授(shou) (give)” with the left part indicating meaning of “hand” and the right part indicating pronunciation of “shou”, “飘(piao) (float)” with the left indicating pronunciation of “piao” and the right indicating meaning of “wind”, “想(xiang) (mind)” with the upper indicating pronunciation of “xiang” and the lower indicating meaning of “heart”), and “龚(gong) (respect)” with the upper indicating meaning of “dragon” and the lower indicating pronunciation of “gong”), meaning symbol can lie in diverse parts of a character. All these suggest that pronunciation and meaning of Chinese characters are fuzzy and people use them with a subjective attitude. This to some degree helps Chinese people’s traditional mind of putting more stress on intuition and less on logic, which is different from modern law preferring logical and deliberate mind. In addition, for China, modern law is a sort of “import”, “transplantation” and “imitation”. When it comes to studying and absorbing foreign culture, we need to at first face “superficial” language form while based on depth knowledge of culture. What’s more, the relationship between language and law is like water and a boat: water can carry the boat, or also can capsize it. Most western languages are inflectional. Inflectional language are rigorous, requiring exact combination between subject and verb as well as adjective modifier and head word, and verb also requires certain exactness for its object. It is such relationships that make western language very useful for expressing rigorous and complicated laws. For example, in Britain many laws and regulations are composed of one sentence which begins with a fixed phrase “Be it enacted…”, and then is followed by articles of specific laws. Law codes like this are of course very long and consist of every kind of complex elements such as additional modifiers, parentheses, parataxis, and appositives. Although these codes would give rise to difficulties in reading, comprehending and even using, but they can laws of completeness, exactness and rigor. On the contrary, Chinese language whose biggest feature is pursuing simple structure, is very flexible in its expressive way and lacks changes in form. As for style, Chinese text may be not of imposing stature but strong and capable, and is usually with concise meaning and implicit expression. This causes two innate shortcomings of legal language in China. One is at the syntactic level. Chinese language only relies on word order and function words to adjust grammar structure in which function words can be omitted. Therefore, parataxis is common in Chinese expression. In addition, long sentences, various definitions and compact sentences are often seen in legal language while short sentences, similar-structure sentences and loose sentences in Chinese language which is hard to properly arrange word order in legal language. In this way, sentences are hard to escape mistakes. So Chinese sometimes has no solution to meet legal expressive requirements for complexity, rigor, and exactness. About this phenomenon,

100

6 Reasons for the Fuzziness of Legislative Language

someone said that Chinese is relative difficult to express law codes compared with other languages. Another is at the lexical level. Chinese legal words are immature due to its legal culture. There are three reasons. Firstly, modern law, as “imported goods”, encounters the phenomenon of “lexical vacancy” in language system during the cultural transplantation, that is, the mismatch between words in translation; Secondly, rooted in human relations and patriarchal clan, the ancient Chinese legal culture and legal jurisprudence terms with a history of more than two thousand years, such as Ting Zhang (flogging a statesman at court), Ci Pei (tattoo the face of a criminal and send him into exile), Che Lie (cart-splitting) and Gong Xing (castration),etc., have almost nothing in common with modern law; Thirdly, affected by our ethnic and cultural mentality, China is conservative about absorbing foreign language. Someone once compared Chinese and English and found that English has borrowed a wide range of vocabularies from other languages in the past 1500 years after its creation. There are more than a half word originating from foreign languages in millions of English vocabularies. While Chinese language has a longer history than English and is used among a nation with multiply ethnics and a large population, it absorbs a minority of foreign words compared with its own vocabularies. Openness of English helps it become world universal language with numerous vocabularies. Facing modern law, Chinese language exists two disadvantages. On the one hand, legal language has rough expressions: words have no clear denotations and connotations; polysemy is very common; synonymous expressions are scarce. On the other hand, the legislative language lacks standards seriously, including imprecise words, unclear meaning, and illogical expressions.

6.5 Influence of National Traditional Culture Nations have formed their own concept systems in long legal practices and settled in languages. Differences between different concept systems are evident because of elements like culture, politics and geography. When analyzing English translation of The Basic Law of the Hong Kong Special Administration Region of the People’s Republic of China (cited The Basic Law as follow), Ann Jordan was deeply confused by concepts in two different legal and cultural backgrounds. As far as she concerned, for a century, law in Hong Kong has been deeply influenced by culture of English common law, not only by rules, but also by concepts. Although the language of the law is the same in mainland China and Hong Kong, the concept is not the same. The legal discussions between the two sides are in fact “mutually uninformative cross-talk”. English version of The Basic Law doesn’t convey essence of Chinese origin. For example, the Chinese word “法律” is translated as “law” in English, but the connotations of the two words are different under different legal and cultural background. The reasons for above result lie in differences in culture, politics and geography, etc. (Liu 2003) A municipal judges’ association once held a seminar on moot courts in China, Germany and the United States. The judges of the three

6.5 Influence of National Traditional Culture

101

countries tried the same case of “domestic violence” in accordance with the laws of each country and in accordance with the criminal procedure of each country respectively, and they made three different judgments as a result. The Chinese judge has sentenced a “violent husband” to three years in prison for the crime of intentional injury, with a two-year reprieve. The German judge sentenced the “abusive husband” to one year and six months in prison for assault and coercion, with a three-year reprieve. And the judge also ordered the “abusive husband” to attend an anti-domestic violence training course to “reform his mind” and fined him 5,000 marks to remember the painful lesson of beating his wife. The U.S. judge did not reach a unanimous opinion among the 12 jurors, so the charges of the prosecutor were not recognized, and the prosecution may file a separate complaint on the case. The above three trials with distinctive characteristics show the different legal provisions and value orientation of trials in each country, and also prove the vagueness of the term “domestic violence”. Legal language’ fuzziness is related to different legal cultural background. As we all know “death” as a daily word is clear in its central meaning. The Contemporary Chinese Dictionary (1997 revision) defines the word as “losing one’s life”; The Longman Dictionary of Contemporary English (1995 English version) explains that “death” is “the end of life of a person or an animal”. But as a professional term in law, “death” does not simply mean losing one’s life in daily expression. Its edge is very fuzzy and flexible and has open concepts and many uncertain elements, all of which rise serious consequences. So what is “death”. There is no fully agreed standard. This issue is concerned with organ transplantation surgery: doctors are only allowed to transplant organs after donors are “brain death” or “heart death”. It is a controversial issue about how to define donors are already died so that doctors can make sure they are not killing one patient to save another patient. Today there are two standards of defining death: “heart death” and “brain death”. Definition of “heart death” is simple, namely heart stops beating. But problems caused by it are not simple. Organ transplantation aims to save live of patients who have hope to continue their live, but if the dead’s hearts stop beating, their other organs will rot and cannot be transplanted any more. Furthermore, “heart death” may bring about astonished legal results. There happened a case in Germany. When the court ruled that the defendant was liable for paying his debt, the defendant argued that he was not the person who borrowed money before because he had been transplanted into someone’s heart (Liang 1996) “Brain death” has become international standard, but its judge standards are also complicated as it at least need reach five conditions: deep coma, dilated or fixed pupil, loss of brainstem response, changeless brain waves, breath stopping and having no change in six hours. Therefore, exactly judging “brain death” is not easy in practice. The term “sexual harassment” was introduced from foreign countries to China in 1990s. This is also a fuzzy legal term. Besides difficulties in collecting evidence and searching legislative evidence, the most difficult part is the definition of “sexual harassment”. Nowadays not only China, some developed countries also have no unanimous definition of “sexual harassment”. Generally, “sexual harassment” is practised by word of mouth, actions and artificial environments. But this fuzzy definition doesn’t set a virtual standard to the harassed. American laws have relatively

102

6 Reasons for the Fuzziness of Legislative Language

detailed definition of “sexual harassment”, but we can still feel fuzziness in this definition: Sexual harassment is any kind of sexual behavior that is unwelcome and/or inappropriate for the work place. Sexual harassment can embrace verbal harassment (i.e. derogatory comments or dirty jokes under the right circumstances), visual harassment (i.e. derogatory or embarrassing posters, cartoons, drawing, etc.), physical harassment, and sexual favors (i.e. sexual advances or confrontation with sexual demands.) In the work place, sexual harassment can come from the owner, supervisor, manager, lead person, foreperson, co-worker and/or customer.

The above definition first limits the place of sexual harassment to “work place”, and defines the harassers as “owner”, “supervisor”, “manager”, “lead person”, “foreperson”, “co-worker” or “customer”. Doesn’t sexual harassment happen elsewhere and to other people? Also, what behaviour is “unwelcome”? What kind of “dirty jokes” qualify as “verbal harassment”? What kind of “sexual advances” qualify as “physical harassment”? …All these are fuzzy. Aforementioned examples can perfectly prove what William P. Alston says in Philosophy of Language: “A term is said to be vague if there are cases in which there is no definite answer as to whether the term applies” (Alston 1964). Chinese culture or Chinese traditional culture is a special type of and form of model whose philosophy is “man is an integral part of nature”, that is, the elimination of the line between subject and object to reach harmonious integration between man and nature, individual and society. This philosophy, in literature, shows artistic conception, implicativeness and vagueness, which “can only be understood but cannot be conveyed”, and in linguistics, the semantic paratactic characteristics and fuzzy expression of Chinese grammar are derived. Literature and Linguistics together create the style of “using least words to express rich matters.” A large number of classical Chinese works see magnificent and structured antithesis, metaphor and painstakingly modified sentences, of which is replete with authors’ thoughts and self-reflection. On the contrary, works emphasizing deliberate inference and logical argumentation are scarce. Even works recording history, expounding things or explaining reasons are assist with narration and metaphor. For instance, On the Ah Fang Palace by poet Du Mu in the Tang Dynasty begins with four short sentence “六王毕, 四海一, 蜀山 兀, 阿房出 (After the end of the Six Kings the empire bounded by the four seas was unified under a single ruler; and with Shu Shan stripped of its woods, the Ah Fang Palace appeared.)”. Only twelve characters constitute four short sentences made up of subjects and predicates, and these four sentences further constitute a compound sentence. This compound sentence states history of the Ah Fang Palace, magnificence of this Palace and tyranny of the Qin Dynasty. Readers will marvel at refined and summarized language as well as reserved but profound meanings. The same expression form can be seen in legal documents in ancient China. According to Professor Guan Xiechu in The Study of Bronze Inscription Grammar in West Zhou Period, the whole text of Lü Xing 《吕刑》 ( ), a very representative early Chinese criminal book, uses only one conjunctive word. For example: 两造具备, 师听五辞。五辞简孚, 正于五刑。五刑不简, 正于五罚。五罚不服, 正于五过。 五过之疵, 唯官, 唯反, 唯内, 唯货, 唯来。其罪惟均, 其审克之。

6.6 Requirements of China’s Fundamental Reality

103

(When the plaintiff and the defendant were present, the judge begins to hear the case. If the prosecution proves to be credible, it will be dealt with by Wu Xing (five punishments). If the Wu Xing treatment can not verify the litigation, the Wu Fa (five penalties) will be used. If you can’t handle it with Wu Fa, you can handle it with Wu Guo (five mistakes). The disadvantages of Wu Guo are that judges may fear power, reciprocate grievances, flatter relatives, ask for bribes, and accept requests. If you find these malpractices, the judge will be guilty of the same crime as the criminal. You must examine them carefully.)

These sentences whose expression are flexible, have no connectors and are linked by inner meanings. When they are translated into modern Chinese, we have to add conjunctions to make sentence meanings clear. In this sense, ancient Chinese legal language are brief. Therefore. Someone described our legal language: traditional Chinese law doesn’t have detailed catalogs, but still can realize that “Justice is slow but sure”. So it can be concluded that some perceived norms are working. Perceived norms are rooted in particular culture which is shaped by interaction of particular society, politics and economy. In the sense of cultural inheritance, culture and tradition ruled by social system and mindset produces far-reaching influence on legal language. Ancient China is a patriarchal clan society guided by “ceremony” and emphasizing on consanguinity. In such society, individuals are hiding behind their family and nation, and the emperor represents a nation. This social relationship creates such atmosphere as oppressed personality and introverted thought. Since there is no real “citizen” in this society, the folk or individuals can only put their hope for justice on integrate officials and good emperor. This atmosphere leads to language usage tendency of simple word, shallow expression and fuzzy indication. Researchers suggest that fuzziness and brevity of Chinese language is actually survival strategy taken by people to avoid being killed. This “strategy” still exerts influence on legislative language today. For instance, Article 51 of the Constitution (2004 Amendment) rules “Citizens of The People’s Republic of China, in exercising their freedoms and right, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens.” Here this article rules citizens’ rights may not infringe upon the interests of other citizens and other organizations, but may provide shield for infringing upon the basic rights of citizens, and even for behaviors against the Constitution of fully depriving citizens’ basic rights.

6.6 Requirements of China’s Fundamental Reality The “literary style” of brief language and the “tradition style” of introverted thought shaped by Chinese traditional culture exercise remarkable influence on the current legislative techniques. For instance, the Criminal Law (1979) has the least articles in the world, only 192 articles. This is influenced by legislation tradition of stressing brevity and fundamental principle of “brief but not detailed” legislation. However, pursuing brief articles leads to some illogical and fuzzy situations in the Criminal Law of China. For example. Article 20 of the Criminal Law (1997) stipulates, “Where

104

6 Reasons for the Fuzziness of Legislative Language

a defence is conducted to an immediate violent crime of committing physical assault, committing homicide, robbery, rape, kidnapping, and other crimes seriously endangering the security of a person…and criminal responsibility shall not be borne for such an act.” Here the connotation of “committing physical assault” is not clear enough and is hard to define in respect of profession. That is to say the law doesn’t set a strict, professional and exact standard about whether particular behaviors are “committing physical assault”, which may lead to divergent understanding of articles in laws and even confusion of enforcement of laws. In addition, combination of principles and flexibility is basic idea of MarxismLeninism legislation and basic principle that must be upheld in the formulation of socialist law. Our vast territory and unbalanced development of politics, economy and culture in areas together determine legislation in China cannot pursue principles while throwing away flexibility. So use of fuzzy language in legislation boosts flexibility of expression and leave room for judicial departments to follow legal principles flexibly.

6.7 Conclusion Fuzzy phenomena exist objectively and doesn’t change according to humans’ mind. Legislative language as one part of natural language must use fuzzy words. Exactness and fuzziness are two important features of natural language and reflect humans’ thinking characteristics. While using precise words in legislative language guarantees exactness, existence of fuzzy language not only has object and subject reasons, but also influenced by history and cultural elements. But the excessive use of fuzzy words may lead to violation of norms in legislative language.

References Alston, William. 1964. Philosophy of language, 123. Upper Saddle River, NJ: Prentice Hall. Beard, C.A. 1989. An econmic interpretation of the constitution of the United States. Beijing: The Commercial Press. Bodenheimer, Edgar. 1974. Jurisprudence: The philosophy and method of the law. Boston: Harvard University Press. Chinese edition: 博登海默. 1987. 法理学: 法哲学及其方法. (trans: Deng Zhenglai). Beijing: Huaxia Publishing House. Fan, Jian. 1995. Jurisprudence. Nanjing: Nanjing University Press. Gong, Pixiang. 2002. Jurisprudence. Shanghai: Fudan University Press. Gu, Chunde. 2004. Intelligence history of western law. Beijing: China Renmin University Press. Heidegger, Martin. 2014. Unterwegs zur sprache. Stuttgart: Klett-Cotta. Humboldt, Wilhelm. 1936. On the diversity of human language construction and its influence on the mental development of the human species. Cambridge: Cambridge University Press. Chinese edition: 洪堡特. 2002. 论人类语言结构的差异及其对人类精神发展的影响 (trans: Yao Xiaoping). Beijng: The Commercial Press. Ji, Xianglin. 1992. Integrated book series of Chinese culture, 175. Beijing: Xinhua Publishing House.

References

105

Jia, Yunqing. 2002. The analysis of corresponding difference between the preciseness and fuzziness of legal language. Journal of Beijing College of Politics and Law 3. Jiang, Jianyun. 1995. The study of legal language and speech. Beijing: The Mass Press. Jiang, Zhenchun. 2004. Analysis of the fuzziness of legal language. Social Sciences in Guangxi 7. Liang Huixing. 1996. General introduction to civil law, 92. Beijing: Law Press·China. Liu, Wanghong. 1996. Several theoretical issues of legislative sociology. Journal of Nanjing Normal University (Social Science Edition) 4. Liu, Weiming. 2003. Forensic linguistics research, 56. Beijing: Economic Press China. Shen, Xiaolong. 1988. The structure of Chinese language and humanism: Shen Xiaolong’s Collection of Theses, 45. Beijing: Guangming Daily Publishing House. Su, Li. 1997. Difficulties in interpretation: Inquiry into interpretation methods of legal texts. Social Sciences in China 4. Su, Xinchun. 2008. The chinese lexicology, 24. Beijing: Foreign Language Teaching and Research Press. Wu, Tieping. 2000. Fuzzy linguistics, 105. Shanghai: Shanghai Foreign Language Education Press. Xu, Guodong. 1992. The interpretation of the basic principles of civil law: Overcoming the limitations of statute law. Beijing: China University of Political Science and Law Press.

Chapter 7

The Positive Function of Fuzzy Legislative Language and Its Realization

Through analysis of semantics and inevitability of fuzzy legislative language, we know law may or is allowed to be expressed implicitly. In history of legal practice of human society, exactness serves as force for maintaining social value of law. The requirement for exactness of law aims provide to reliable guarantees for legal justice goal, which contributes to legal function of maintaining order. However, since there are always news situations in social life, law often cannot meet society’s needs premised on exactness, and exactness sometimes may become a barrier to justice goal. So, in history of seeking justice, people also bring the quality of “flexibility” to legal system. As a result, it is necessary and inevitable that use of fuzzy language to express legal norms and form regulation texts by means of fuzzy mind. Although legal norms are universal, general and predicable and only can be expressed in the form of language, human language isn’t developed enough to precisely express all legislative intentions. Legal language derives from daily language. Different from mathematics and science language, meanings of daily language are often not exact and clear, because “any words (or language) are to generalize particular things” (Zheng 2005). Generally, what a word covers is a meaning range, not a sole and determinate meaning. What’s more, this “scope of meaning” doesn’t have a clear boundary, and what we know about the range is often the core meaning. Beyond the core meaning, language meaning tends to be fuzzy, which is likely to give rise to multiple understandings. Therefore, for lawmakers, over pursuit of exactness may make law a backwater; while proper use of fuzziness will infuse flexibility into law.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language, https://doi.org/10.1007/978-981-99-2633-6_7

107

108

7 The Positive Function of Fuzzy Legislative Language and Its Realization

7.1 Positive Function of Fuzzy Legislative Language Legal norms are universal, general and predicable and only can be expressed in the form of language. If we compare function of precise language with that of fuzzy language, we will know only effective use of fuzzy language can reach above qualities of legal norms at the same time. Specifically, positive functions of fuzzy legislative language are concluded in three aspects.

7.1.1 Beneficial to Realize the Integration of Stability and Changeability of Law Once laws are established, they have to keep stable, which is requirement for rule of law, and need to maintain exactness of law. Aristotle suggests that easily changing laws and establishing new laws are actually a way to impair law’s basic nature (Pan 1984). As a result, people will stress stability of law. Stability of law requires laws to be in effect in a long term. Laws are prohibited to be changed during a short period or changed according to facts. Instability of legislation means humans lack safeguard for their pursuit of stable life. Stability is the premise that legal norms are put into practice. American jurist Bodenheimer also points that, “laws are a set of rule system which cannot be altered in a short term, so they are inclined to be conservative. Once legal system sets rights and obligations, lawmakers should avoid constantly amending or changing this system for the sake of freedom, safety and predictability. But when established laws are in conflict with changeable and important social development forces, law has to pay a price for its stability” (Bodenheimer 1999). Any legislation needs a degree of stability, as a result, legislation, like all human recognition, appears conservative (Xie 2003). However, as society is developing, social relationship is also changing every day, which makes permanent legal relationship impossible. In this way, people’s freedom and rights are developing, and have no exact limits. Rights should be free ranges of human behaviors. Lawmakers could only set various links of social relationships in particular ranges, and allow people themselves to choose whether they decide to engage in particular activities, rather than restrain people’s behaviors. Precise language isn’t enough to list how citizens should act and results of actual actions. As is known to all, the value of legislation is to meet need of social development which requires the connotations and extension of legal concepts can adapt to a certain degree of changeability. “Law, like other social phenomenon, virtually is a growing organism. It could be effective only when it develops with the development of social life” (Liu 2003). “Law must make some alterations according to changes of social development and objective facts so as to keep law in line with objective facts in change” (Li 2001). But is the fuzzier legislative language, the better? Of course not. The depth and breadth of fuzziness generally vary in accordance with the rank of law. The higher the rank of law, the less probability of law change and the more laws

7.1 Positive Function of Fuzzy Legislative Language

109

dependent on fuzzy language. The Constitution is fundamental law of the country. Its highest rank as well as fundamental and macro content decide that it must employ fuzzy language to fully summarize legal phenomena so as to maintain the relatively stable position of Constitution; however, laws and regulations of lower rank should adjust constantly changing legal relations at the macro and micro levels. The language expression of the provisions needs to be relatively clear, and it’s normal for them to be amended or rewritten. A most notable example is the Constitution of the United States: Preamble We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. Article I. Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. …

In the preamble, the fuzzy words like “perfect”, “tranquility”, “justice”, and “liberty” constitute enough of an outline of the harmonious society to be established in the legislator’s ideal.. In the following Article I Section 2, a few words such as “several”, “qualifications requisite”, “not have attained to the age” have broad meanings enough to deal with changes of federations and representatives. When the legislation began, only 11 states were admitted to the Union. Over two centuries later, now that every other state is involved, “several” still applies. “Qualifications requisite” of representatives have been endowed with more uncertain meanings with the development of society. The Criminal Law of China also uses a large amount of fuzzy language. For example, “国家……和其 其他社会力量依照法律规定举办各 各种教育事业 (state… and other sectors of society to establish educational institutions in various types in accordance with this law)”, “国家在必 必要时设立特别行政区 (The state may establish special administrative regions when necessary)”, “公务员由下列人员组成: ……国务院若 若干…… (Civil servants consist of the following: … the State Council has several …”, etc.

110

7 The Positive Function of Fuzzy Legislative Language and Its Realization

7.1.2 Beneficial to Realize the Integration of Openness and Flexibility of Law The concept of value, from the philosophical sense, refers to a specific relationship between the object and the subject. Value of fuzzy language in legislation is its positive significance to law. Fuzzy language, seeming a defective form, is necessary and beneficial, because its openness and flexibility break logic self-sufficiency of legal system. Places of fuzzy laws are where their value needs replenishing and judges are those who replenish their value. Fuzziness of endows legislative language with openness. With growth of society, such openness enables judges to make “minor repairs” on the premise of maintain the stability of law itself when facing the constantly developing social reality. Replenishing fuzzy language with new connotations can help laws absorb new contents and new value adapting to social development. In this way, law develops without being noticed and dilemma of change and changeless of law is balanced in this process. A typical example is growth of the Equal Protection clause in Fourteenth Amendment to the United States Constitution. Guided by natural rights of bourgeois ideas of enlightenment, American Constitution lays down the principle that all men are created equal. But “all men” here at first meant only white people, or even white men. As society develops, especially abolition of slavery and the rise of feminism, the previous understanding is undoubtedly outdated. So, we can see in a series of famous cases such as Dred Scott v. Sandford, 60 U.S. 393 (1857) and McCulloch v. Maryland (1819), judges expanded its meaning to black people by re-explaining this clause, which is a wise and effective way of legal development (Tang and Zhu 2005).

7.1.3 Beneficial to Realize the Integration of the Finiteness of Language and the Infinity of Objective Things Finite fuzzy language can be employed to express infinite objective things and phenomena so as to maximize the punishment of various criminal crimes. From the perspective of relationship between language and objective matters and phenomena, the later is infinite and the former is finite. When finite language is employed to express infinite objective matters and phenomena, fuzzy language is unavoidable. In criminal legislation, the use of fuzzy language can ensure legal norms are meticulous and fully-developed, loose but not missing, and crack down on crimes to the most degree. For instance, Article 114 of The Criminal Law (1997) states: “放火、决水、爆炸、投毒或者以其 其他危险方法破坏工厂、矿场、油田、港口、河 流、水源、仓库、住宅、森林、农场、谷场、牧场、重要管道、公共建筑物或者其 其 他公私财产, 危害公共安全, 尚未造成严重后果的, 处三年以上十年以下有期徒刑。” (Whoever commits arson, breaches a dike, causes explosion, spreads poison or uses other dangerous means to sabotage any factory, mine, oilfield, harbour, river, water source, warehouse, house, forest, farm, threshing ground, pasture, key pipeline, public building or

7.1 Positive Function of Fuzzy Legislative Language

111

any other public or private property, thereby endangering public security but causing no serious consequences, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.)

After listing main means of crime and sabotaged properties, adding fuzzy expressions like “其他危险方法 (other dangerous means)” and “其他公私财产 (any other public or private property)” offers this article a certain limitation and generality and makes the definition more strict, which helps to combat crime to a greater extent (Dong 2004). For another example, Article 21, Paragraph 2 and Article 115, Paragraph 1 of the Criminal Law (1997) stipulate: “紧急避险超过必 必要限度造成不 不应有的损害的, 应当负刑事责任, 但是应当减 减轻或者免 除处罚。”. (If the act committed by a person in an emergency to avert danger exceeds the limits of necessity and cause undue damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment.) “放火、决水、爆炸、投毒或者以其他危险方法致人重伤、死亡或者使公私财产 遭受重大损失的, 处十年以上有期徒刑、无期徒刑或者死刑。” (Whoever commits arson, breaches a dike, causes explosion, spreads poison or inflicts serious injury or death on people or causes heavy losses of public or private property by other dangerous means, shall be sentenced to fixed - term imprisonment of not less ten years, life imprisonment or death.)

Here “必要限度 (the limits of necessity)”, “不应有的损害 (undue damage)”, “减 轻(mitigated)”, “其他危险方法 (other dangerous means)”, “重伤 (serious injury)” and “重大损失 (heavy losses)” are all fuzzy expressions. These fuzzy expressions are everywhere in laws and regulations, and are flexible. Because cognitive objects are hard to explain, lawmakers just impose several specific limits in legislation to flexibly constrain objects. Flexibility of law is employed to deal with complexity, variability and continuity of cognitive objects so that justice has long arms. Such flexibility of law is normal legal loophole to overcome contradiction between limits of lawmakers’ cognition ability and complexity of cognitive objects. Jurist Ji Weidong argued that, “in terms of legislation, fuzzy language sometimes is a merit because it can ensure legislative terms from frequent amendment and law of stronger practicability in face of social change” (Ji 2004). Besides, such fuzziness may be more practicable. Fuzzy language could increase flexibility of legal language so that law is more practicable. Fuzziness could make denotations of some legal concepts infinite, or make their concepts flexible, as a result, legal concepts become open, stretching, and furthermore practicable. In society, social relationship is changing while laws keep stable. What should lawmakers do to find a balancing point in the line of change and stability? Only fuzzy legislative language is attributed to changing ability could it deal with various changes by means of stability. American Constitution has least clauses, the shortest words and most stands the test of time in the world. Undoubtedly, this contributes to lawmakers’ wisdom, including their use of legislative language skills. Flexibility of

112

7 The Positive Function of Fuzzy Legislative Language and Its Realization

fuzzy language achieve that Constitution is relatively stable, adaptable and flexible, and leaves rooms for its further development. Fuzzy legislative language could solve the contradictory relationship between stability and changeability of law.

7.2 Value Realization of Fuzzy Legislative Language Philosophically speaking, the concept of value can be understood from two respects. First, value belongs to a category of representing relationship; it reflects relationship between humans and their outside world and reveals motives and purpose of human practices. Value relationship is corresponding one humans and their outside world need to satisfy. In value relations, humans are the subject of value and external things things are the object of value. Second, value belongs to a category of representational meaning, which is used to express the positive meaning of something that is meaningful to the subject and can meet the needs of the subject, or to express the usefulness of the object. Values of law are also called legal values. They are values law can protect and increase when it plays its social part, such as personal safety; property safety; civil freedom; public social welfare; growing economy; maintenance of good customs and environmental protection and improvement. Order, freedom, efficiency, and justice are basic represent of values of law. Such values ideals and goals law seeks, so they are also called “purpose value” of law. We argue that use of fuzzy legislative language helps realize values of law, particularly purpose value of law in the following.

7.2.1 Beneficial to Realize the Universality and Adaptability of Law The rule of law advocates equality for all and rejects privilege. The requirement of universality of law means that its main significance is to ensure the application of law in the whole society, in order to achieve fairness and justice. However, the requirement of universality of law means legal rules must be generalized and abstract enough. Exact language points to specific meaning and provides definitive guidelines for behaviors. But exact rule texts provide limited guideline and sometimes may lead to rigidity and stagnation of norms. Fuzzy legislative language is economical and could pass enough information at less price and describe complicated legal phenomena and legal behaviors by means of limited legislative resource. Generally, legislation could consider general situations of the same kinds of things but couldn’t cover special ones of everything. While every case has its specialty, “law could only classify cases based on typical and often seen situations. Methods of classifying men in legal rules and of classifying results of men’s behaviors in law are concrete and specific elements separated from general situations. These elements are regarded as basic truth. Law

7.2 Value Realization of Fuzzy Legislative Language

113

only cares about basic truth; others will be ignored because they are not related with use of legal rules” (Cai 1985). Legal norms are limited while social life is infinite. In respect of legislative articles, it is unrealistic to list all civil, commercial or criminal conducts in rule texts. If fuzzy language in rule text were replaced with exact language, some departmental law would become encyclopedias. Pound has said earlier “It’s impossible to establish exact rules for a specific situation”(Pound 1942). Therefore, law must face the infinite diversity and complexity of social life with a few definite rules, and the formal requirements of the rule of law more or less strengthen the value of legal certainty. So when general rules are mechanically applied for concrete cases, the same rules are inevitably suitable for different cases because even different cases exist their own situations. Two cases sometimes look the same, but actually “punishability” of two violators are very different; additionally, violators may have different personal situations in the two cases. It would not be effective to achieve fairness if such apparently similar or identical cases were treated exactly the same on the grounds of maintaining legal certainty. Criminal Law of China once took 5000 yuan as the standard for corruption and bribery, in which the principle of “legally prescribed punishment for a crime” has been simplified. For this “one-size-fits-all” criteria, we cannot help but question whether it was scientific and reasonable. To pursue the stability of law, people always wish legal language can be as exact as possible. But in terms of law, exactness isn’t always a good thing. Compared with daily language, abstract professional words may be more specific. But over-abstract legal concepts abandon too many qualities of their described targets. As a result, nonlegal professionals will have difficulties in their understanding on the one hand; on the other hand concepts may miss some important qualities of things and decrease their ability to interpret targets, which makes legal concepts hard to handle with complicated social relationship. As Kaufman points out language reaches extremely exact at the price of shallowness of content and meanings. It is difficult to meet the needs of standardizing social life to form constituent elements only with abstract concepts. It is inevitable that the judicial organs will break through those overly narrow concepts, and the danger of losing control of the judiciary will occur (Larenz 1960). Without fuzzy language, these conditions cannot be met of few clauses, short words and rules covering complicated social facts. Fuzzy language is economical, could offer alternative semantic domain, and deliver sufficient information with short texts. In this sense, fuzzy language helps citizens make reasonable choices of conducts suitable for their interests within authoritative norms of law. Wittgenstein once made an example that, between “Fetch me a broom” and “Fetch me broomstick and broom head on the stick”, the fuzzy statement of the former is more effective than the precise statement of the latter in getting the action done. Therefore, we have reason to believe fuzzy legislative language could rightfully and fairly approach the determination of legal value in infinity, so as to make legal rules universally implemented.

114

7 The Positive Function of Fuzzy Legislative Language and Its Realization

7.2.2 Reserve Space for the Application and Development of Law Considering any type of law is a code of conduct that past or present lawmakers established practicable for future society based on social status quo at that time, law is to a certain extent predictive in nature. Complexity and variability of society cause lawmakers fail to formulate law covering all things in the world, and to make law omnipotent one suitable for all changes. For this reason, any statutory law has its limitations that are showed only in the process of legal practicability. Legal norms are a code of conduct and also norms of referee; they guide conducts of ordinary people as well as guide and regulate judges’ freedom of lawsuit. Due to the separation between legislators and the application of law, as well as the fact that judges cannot refuse to judge cases, in the face of the ever-changing facts of cases, the task of solving the limitations of statutory law in the process of law application is put before the judge, so that judges cannot apply the law passively and mechanically, but also have to consider whether the applicable law is consistent with the case, social status and the requirements of the times. In this way, the judge should also test, judge and choose the applicable law when applying it. When the applicable law is inconsistent with the social situation and the requirement of The Times, the judge should have the right to make a new one. Social jurists vigorously criticize the view that justice is regarded as the judge’s mechanical application of statutory law, and hold that judges have wide discretion in judicial activities, including the freedom to “legislate”. Social jurisprudence began with a liberal law movement “Freirechtsbewegun” in Europe, of which Eugen Ehrlich was one of the chief advocates. He believed that judges in judicature are not such “vending machine” of law as concept jurists described; instead, they play a vital role in finding and formulating legal norms. Based on this belief, he proposed famous proposition “the free finding of norms” (Yan 2011). The judge’s discretion depends entirely on the language in which the law is expressed. In order to leave room for the development of things and the correct implementation of the law, it is necessary to use fuzzy words to accurately convey the meaning. In the formulation of laws and regulations, it is not possible or necessary to accurately predict any situation that will happen in the future and put it into exact words. Instead, there are many situations that need to be flexibly decided according to the objective reality and specific problems in the future. Therefore, flexible fuzzy expressions are inescapable in legislative provisions such as “several”; “appropriate”; “when necessary”; “possible”; “extremely serious”; “minor”; “larger” and “below”. The use of these fuzzy expressions makes the legal language not only invariable in principle, but also flexible, providing a guarantee for correct law enforcement and specific operation. In a word, the use of fuzzy language can regulate unpredictable situations by lawmakers, so that the lagging law does not constrain the social progress, the urgent social requirements rise to the law as early as possible, and the law always meets the requirements of justice (Dong 2007). In fact, legislation is the process of carefully, reasonably and effectively setting the category, describing the facts and boundaries

7.2 Value Realization of Fuzzy Legislative Language

115

of future legal relations. For lawmakers, over pursuit of exactness may make law a backwater; while proper use of fuzziness will infuse flexibility into law. Fuzziness is not equal to randomness. Fuzzy language endows judges with discretionary power under established legal framework rather than absolute discretionary power. Zalmay Khalilzad hits the point that if we study cognitive process of human beings, we may find human use of fuzzy concept is a tremendous treasure, not a burden. This point is key to understand difference between human intelligence and artificial intelligence (Liu and Ren 2000). So how should lawmakers properly employ fuzzy language to make the judge obtain the space of discretion?

7.2.2.1

Using Generalized Legislative Words

Generalized legislative words mainly refer to the words of upper category, with a high degree of generality and abstractness, such as vehicles, races, works, etc. Vehicles are very important in daily life and very familiar with the means of transportation, laws and regulations for vehicle management made a lot of provisions. However, as the concept of “vehicle” belongs to the upper category, it has great fuzziness, which has caused a lot of controversy in the implementation process of laws and regulations. Legislation of Road Traffic (1930) in the UK ruled it is illegal to use vehicles without pneumatic tires on the road. In case Garner v Burr, Burr was sued for driving a tractor on the road which dragged an empty chicken cage with iron wheels in it. In the first trial, the judge consulted definition of “vehicle” and decided Burr didn’t break the rule. But Court of Appeal dismissed judgement of first trial. Similar to “vehicle”, “race” is also fuzzy. The Race Relations Act 1976 in UK ruled any discrimination for reason of different races is illegal. Race here is defined as: “Race” refers to groups defined by color, ethnicity, nationality, racial or national origin. In case Mandala v Dowell Lea, plaintiff Mandala cited The Race Relations Act and argued that Sikhs was a group defined by racial origin. The school racially discriminated Sikhs as it refused to enroll Sikhs students for reason of rejecting cutting their hair. In this case, the key to disputes was how to define “race”. Was Sikhs one of a race according to definition of “race”? Was it a kind of racial discrimination for the school to refuse to enroll Sikhs students (Xu 2006).

7.2.2.2

Using Supplementary Legislative Words

Lawmakers often in legal clauses employ such words as “etc.” and “other” to supplement previous-mentioned things. These words are fuzzy in actual use. For instance, British government authorized their department to formulate Customs Administration regulations which forbids import of “weapons; ammunition; gunpowder and other goods”. Here “other goods” is supplement and summary of “weapons; ammunition; gunpowder”. Besides, lawmakers add some hedges before or after definite legal concepts. As a result, source language information change, a large amount of edge

116

7 The Positive Function of Fuzzy Legislative Language and Its Realization

members appear around ones of source categories and concepts once having definite meanings become unclear. For example, such additional words as “above”; “below”; “within”; “beyond”; “no more than”; “slightly”; “serious”; “very” and “extremely” will expand semantic boundary. Another examples are “statutory sentence is fixed - term imprisonment of not less than seven years but not more than ten years”; “impose lighter(heavier) punishment”; “if the circumstances are especially serious”; “manners are abysmal”; “Means are extremely cruel”; and “less than five years of limitation”… These expressions all have function of changing category membership degree.

7.2.2.3

Learning from Other Disciplines Or Ordinary Language

Legal concepts system is directly created by lawyers. Many legal concepts are results of legal truth and are a stable understanding schema. But only a few concepts definitely express contents and links of some empirical facts. Legal facts happen every day, of which contents are different. As we change our understandings of the world, structure of legal concepts also changes partly or systematically. As for legal facts linked by space, time or structure, lawmakers can borrow existing concepts from other disciplines as legal concepts or legal terms to constitute a network of fuzzy legislative language. This borrowing is beneficial for communication, conversation and cooperation between different disciplines. Take “fetus” as example. Lawmakers don’t have to identify, generalize and abstract this concept, and don’t have to answer countless biological problems: when does life begin? When fetus’ brain have function? When does fetus begin to have heartbeats, listen to men’ words and absorb nutrition?… Boundaries of concepts are virtual and are assumed or expected by people according to their empirical cognition, which means people are impossible to have definite and uniform boundaries of answers to those questions. Boundaries in people’s mind are often not exactly in line with those of matters in reality. For lawmakers, they just need understand legal relationship fetus may cause and borrow the biological concept “fetus” into texts of legal rules. Then “fetus” becomes subject participating in civil juristic relation (Zhou 2006).

7.2.2.4

Carefully Using Descriptive Legislative Words

Descriptive legislative words mainly point to adjectives such as “larger”; “huge”; and “serious”. For example, Article 156 of Criminal Procedure of the People’s Republic of China (2012 Amendment) states: “下列案件在本法第一百五十四条规定的期限届满不能侦查终结的, 经省、自治区、 直辖市人民检察院批准或者决定, 可以延长二个月:

(一) 交通十分不 不便的边 边远地区的重 重大复杂案件; (二) 重大的犯罪集团案件;

7.3 Conclusion

117

(三) 流窜作案的重大复杂案件; (四) 犯罪涉及面广 广, 取证困 困难的重大复杂案件。”. (Where the investigation of the following cases cannot be closed within the period as set forth in Article 154 of this Law, the period may be extended for two months with the approval or decision of the people’ s procuratorate of a province, autonomous region, or municipality directly under the Central Government:

i. significant and complicated cases in outlying areas where traffic is very difficult; ii. significant cases regarding criminal gangs; iii. significant and complicated cases regarding crimes committed from place to place; and iv. significant and complicated cases with a wide involvement and difficulty in gathering evidence.) Here Chinese adjectives like “不便(difficult)”, “边远 (outlying)”, “重大复杂 (significant and complicated)”, “广 (wide)” and “困难 (difficult)” are used to describe and generalize difficulties of cases so as to cover all similar situations. As for what constitutes “difficult” traffic conditions (not open to traffic or no roads), there are not definite regulations in legal provisions. In Criminal Law of the People’s Republic of China, crime of property violation and crime of embezzlement and bribery need to consider property and amount of money related; crimes of smuggling, trafficking in, transporting and manufacturing need to consider amount of narcotic drugs and the degree of harm done to the society. Descriptive legislative words “larger”; “huge”; “serious” are used in these articles. Scholars made a statistic for Criminal Law of China. Statistic showed that there are 54 “较大 (larger)”, 78 “巨大 (huge)” and 388 “ 严重 (serious)”. These Descriptive words cause difficulties in judicial practices while they ensure wide adaptability of legal provisions (Xu 2006).

7.3 Conclusion Law is famous for rigor and adjusts social relationship by means of regulating people’ basic rights and obligations. People get guidance on how to behave from law to realize normal operation of social life. If legal provisions were fuzzy and unclear in meanings, people would loss instructions on behaviors and society would also fall into chaos. However, that doesn’t mean fuzzy words are unallowable in legal provisions. In fact, it is impossible to absolutely exclude fuzzy words from legal provisions about norms. In reality, no law can express totally by means of exact words. Instead, what’s more often seen is alternative use of exact words and fuzzy words, with exact words as main part and appropriate fuzzy words as the auxiliary, which is more conducive to the make legal norms rigorous and comprehensive. In certain context, the the use of fuzzy expression can describe situations more exactly. Fuzzy expressions have qualities of unclear boundary of denotation and general connotations, so the use of fuzzy words may result in uncertain meanings. This

118

7 The Positive Function of Fuzzy Legislative Language and Its Realization

result sometimes is better than certain definition of problems by exact words. Use of fuzzy language can express people’s meanings explicitly and leave extensive and sufficient rooms. Wittgenstein used a vivid metaphor to helps us understand the function of vague legislative language, “We’re standing on smooth, frictionless ice, which is ideal in a sense, but because of that, we can’t walk either. We want to walk, so we need friction. So, come back to the rough ground” (Wittgenstein 1953). Therefore, the proper use of fuzzy words can make legal language simple, concise and highlighted on the one hand; law can be amended as society changes to maintain vitality on the other hand.

References Bodenheimer, Edgar. 1999. Jurisprudence: the philosophy and method of the law. Trans. Deng Zhenglai. Beijing: China University of Political Science and Law Press. Cai, Dunming. 1985. Selection of papers on general principles of criminal Law: I, 48. Taibei: Wunan Book Publising Co., Ltd. Dong, Xiaobo. 2004. The dialectical analysis of fuzzy expressions in legal language. Journal of Southwest University of Political Science and Law 5. Dong, Xiaobo. 2007. A legal sociological research on fuzziness in legislative languages. Journal of Henan University (Social Sciences) 2. Ji, Weidong. 2004. Significance of legal procedure: Another reflection on China’s legal system construction, 125. Beijing: China Legal Publishing House. Larenz, Karl. 1960. Juristische Methodenlehre. Berlin: Springer-Verlag. Chinese edition: 拉伦茨. 2003. 法学方法论 (trans: Chen Ai’e). Beijng: The Commercial Press. Li, Daojun. 2001. Idealistic laws and realistic laws, 319. Jinan: Shandong People’s Publishing House. Liu, Yanhong. 2003. Criminal legislation technology and the practice of the principle of legality. Law Science 8. Liu, Yingming, and Ping Ren. 2000. Fuzziness: The other half of accuracy, 16. Beijing: Tsinghua University Press. Pan, Weihe. 1984. Collection of Chinese and western legal thoughts, 165. Taibei: Hanlin Publishing House. Pound, Roscoe. 1942. Social control through law: The task of law. New Haven: Yale University Press. Chinese edition: 庞德. 1984. 通过法律的社会控制: 法律的任务 (trans: Zongling Shen and Shizhong Tong). Beijng: The Commercial Press. Tang, Zhirong, and Tao Zhu. 2005. The qualities of judges in judicial activities viewed from the fuzziness of legislative language. Journal of Nanjing Audit University (2). Wittgenstein, Ludwig. 1953. Philosophical investigations. Chinese edition: 维特根斯坦. 2004. 哲 学研究 (trans: Bulou Li). Beijng: The Commercial Press. Xie, Hui. 2003. Inquiry into the meaning of law: The philosophy of law from the perspective of Hermeneutik, 161. Beijng: The Commercial Press. Xu, Youping. 2006. Application of the prototype theory to the elimination of vagueness of legislative lexicons. Journal of Guangdong University of Foreign Studies (7). Yan, Cunsheng, 2011. The judicial view of social law. East China University of Political Science and Law Journal 2. Zheng, Chenliang. 2005. On ten issues on the formal rationality of law. Law and Social Development 6. Zhou, Julan. 2006. Functional analysis of fuzzy legislative language. Seeker 10.

Chapter 8

Fuzziness and Violation of Norms in Chinese Legislative Language

China has the largest population in the world and is also a major legislation power. Since the reform and opening up more than 30 years ago, people’s congress and governments at all levels have established and effectively implemented great legislative plans, and China has achieved remarkable progress in its legislative work. Socialist legal system with Chinese characteristics has already been developed. However, rapid advance of legislative plans and over pursuit of legislative speed determine that violation of norms in legislative language exists everywhere in legislative texts of China, especially in texts of some areas. Violation of norms in legislative language reduces quality of law, affects national imagine, give rise to practical difficulty and harm to legislative activities, judicial practice, legal education and law popularization, impair solemnity and authority of law and damage development of linguistic sciences. Therefore, this chapter aims to argue violation of norms in legislative language in China from the perspective of legal philosophy, analyze reasons and nature of violation of norms in legislative language, discuss negative effects and consequences of violation of norms in legislative language and design ways of correcting violation of norms in legislative language so as to improve legislative quality and efficiency, advance legislation building and enhance authority of legal practices.

8.1 Ontology of Violation of Norms in Legislative Language in China Legislative language is the language used in the process of making laws. In respect of legislative technology, legislative language apparently is the most intuitive form of expression and belongs to the expressive technique. Advantages and disadvantages of law directly depend on those of legal language expressing and spreading law. As official language of legislative activities, legislative language need to convey © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language, https://doi.org/10.1007/978-981-99-2633-6_8

119

120

8 Fuzziness and Violation of Norms in Chinese Legislative Language

lawmakers’ purposes and legislative goals on the one hand, and inform citizens and related authorities of applicable categories of law on the other hand. Thanks to specific using environment, language of legislative texts should be authoritative, summarized, general and typical. Violation of norms in legislative language means that the expression of provisions in codes or laws promulgated by legislature don’t conform to the language norms, resulting in different degrees of non-standardized expression or even language mistakes. Legislative texts as carrier of legal norms, should be a model of observing language rules, which is premise of realizing common binding force, supreme authority and solemnity of law. Today in China, a great number of violation of norms in legislative language can be seen seen everywhere. Every important legal text has violation of norms in language; violation is more serious in administrative regulations and departmental provisions. For instance, our Constitution (1982) contains a total of 138 articles, of which there are 140 violation of norms. After two amendments, there are still over 50 points worth reviewing; according to the joint research of famous linguists and constitutional scientist including Lu Jianming and Wang Renbo, at least 23 of them are serious problems of violation of norms and should be amended; according to the “Tenth Five-year Plan” research group of the National Language Commission Research Plan chaired by Xie Ying, and found had more than 30 serious language problems have been found in the Criminal Law (1999); the Real Right Law (Draft) promulgated in 2005 has over 100 language problems worth rethinking, based on the study of the “Tenth Five-year Plan” research group of the National Language Commission chaired by Wang Jie, and Professor Xu Guodong, a civil law professor (Song 2006). The main manifestation of the violation of norms in legislative language in China are grammatical errors, incomplete composition, misuse of function words, semantic ambiguity meanings and inappropriate logic.

8.1.1 Grammatical Errors Grammatical errors are one of most common cases of violation of norms in legislative language, mainly as follow:

8.1.1.1

Mismatching of Modifier and the Central Phrase

Attributive and adverbial are used to restrict and modify the central word. But inappropriate collocation will fail to play the due role, but will hinder the expression of meaning. Example1: Article 83 of General Principles of The Civil Law of the People’s Republic of China (1986) stipulates, “不 不动产的相邻各方, 应当按照有 利生产、方便生活、团结互助、公平合理的精神, 正确处理截水 、排水、通行、通风、采光等方面的相邻关系。…… (In the spirit

8.1 Ontology of Violation of Norms in Legislative Language in China

121

of helping production, making things convenient for people’s lives, enhancing unity and mutual assistance, and being fair and reasonable, neighbouring users of real estate shall maintain proper neighbourly relations over such matters as water supply, drainage, passageway, ventilation and lighting…)” The subject of this article is “不动产的相邻各方”, literally means “real estate’s neighbouring users” in English, resulting in the subject of this article being “things” rather than “person”. The reason for this problem is that instead of using “不动产 (real estate)” as an attributive to directly modify “相邻各方 (neighbouring users)”. It should be replaced with “拥有不动产的相邻各方 (neighbouring users of real estate.)”. Example 2: Article 218 of the Criminal Procedure Law of the People’s Republic of China (1996 Amendment) stipulates: “对 对于被判处管制 、剥夺政治权利的罪犯, 由公安机关执 执行。执行期满, 应当由执行 机关通知本人, 并向有关群众公开宣布解除管制或者恢复政治权 利。(Sentence of public surveillance or deprivation of political rights that has been imposed on a criminal shall be executed by a public security organ. After the sentence is served, the executing organ shall notify the criminal himself and publicly announce to the people concerned that public surveillance is ended or that his political rights are restored.)” Here, “对于被判处管制、剥夺政治权利的罪犯”, which literally means “for a criminal sentenced to public surveillance or deprivation of political rights”, is an adverbial, and “执行 (execute)” is the predicate. In this adverbial-predicate structure, the target of “执行 (be executed)” points to the noun “罪犯 (a criminal)”, which should be “刑罚 (the punishment)”. This is obviously mismatched and should be replace with the subject-predicate structure, as “对于罪犯被判处管制、剥夺政 治权利的刑罚, 由公安机关执行。(If a criminal is sentenced to public surveillance or deprivation of political rights, the punishment shall be executed by the public security organ)”. Example 3: Article 2 of the General Principles of The Civil Law of the People’s Republic of China (1986) stipulates: “中华人民共和国民法调整平 等主体的公民之间、法人之间、公民和法人之间的财产关系和 人身关系。(The Civil Law of the People’s Republic of China shall adjust property relationships and personal relationships between civil subjects with equal status, that is, between citizens, between legal persons and between citizens and legal persons.)” In this article, the relationship between “平等主体 (subjects with equal status)” and “公民 (citizens)” or “法人 (legal persons)” in linguistics is not the qualifyingand-the-qualified relationship of attributive structure, but the appositive relationship of parallel structure. Subjects with equal status refer to citizens and legal persons. That is to say, citizens and legal persons are subjects of civil juristic relation stipulated by The Civil Law whose major feature is equality of subjects’ legal status.

122

8 Fuzziness and Violation of Norms in Chinese Legislative Language

But this article takes “平等主体 (subjects with equal status)” as the pre-positive attributive to modify 公民 (citizens)” and “法人 (legal persons)”, which causes grammatical confusion and makes this article an unsmooth sentence. To eliminate the mistake of confusing the grammatical relation of the original text, it can be corrected into “中华人民共和国民法调整平等主体之间的财产关系和人身关系 。本法所称平等主体, 指公民和法人。(The Civil Law of the People’s Republic of China adjust the property relations and personal relations between civil subjects with equal status. Civil subjects with equal status shall mean citizens and legal persons.)”. (Li 2010).

8.1.1.2

Mismatching of Sentence Components

When making a sentence, every compositions of the sentence should be correctly collocated. This collocation derives from logic of a thing or idiom. Appropriate collocation helps make a understandable sentence; otherwise, a poor sentence will appear. The sentences caused by the improper collocation of components account for the largest proportion of violation of norms in legislative language. Example 1: Article 129 of Criminal Procedure of the People’s Republic of 案件, China (1996 Amendment) stipulates: “公安机关侦查终结的案 应当做到犯罪事实清楚, 证据确实、充分 (first clause), 并且写出 起诉意见书, 连同案卷材料、证据一并移送同级人民检察院审查 决定 (second clause)。” (After a public security organ has concluded its investigation of a case, the facts should be clear and the evidence reliable and sufficient and, in addition, it shall make a written recommendation for prosecution, which shall be transferred, together with the case file and evidence, to the People’s Procuratorate at the same level for examination and decision.) This is a progressive compound sentence with the subject of first clause being “ 案件 (a case)” and the second sentence is omitted, which should be the same as that of the first one “案件 (a case)”. But, the second clause becomes “并且 (案 件) 写出起诉意见书”, which means in English “in addition, (a case) shall make a written recommendation for prosecution)”. As we know “a case” can’t “make a written recommendation for prosecution”, or that will cause inappropriate collocation between subject and predicate of the second sentence. In this context, subject of the second sentence should be “公安机关 (a public security organ)” that can be added after “并且 (in addition.)” (Liu 2006). Example 2: Article 26 of Administrative Procedure Law of The People’s Republic of China (1990) states, “当事人一方或双方为二人以上, 因同一具 体行政行为发生的行 行政案件, 或者因同样的具体行政行为发生的 行政案件、 人民法院认为可以合并审理的, 为共同诉讼。(Where one party or both parties consist of two or more persons, and their administrative cases are against the same specific administrative act

8.1 Ontology of Violation of Norms in Legislative Language in China

123

or against the specific administrative acts of the same nature, and the people’s court considers that the trial of the cases can be merged, this shall be a joint action.)” Here, the subject is “行政案件 (administrative cases)” and the predicate is “为共同 诉讼 (be a joint action)”. but it is unreasonable that “administrative cases” become “a joint action”, so “行政案件 (administrative cases)” should be altered into “行政 诉讼 (an administrative action).” Example 3: Article 84 (Section 2) of The Constitution of the People’s Republic of China (1982) : “中华人民共和国主席、副主席都缺位的时候, 由全 国人民代表大会补选; 在补选以前, 由全国人民代表大会常务委 员会委员长暂时代 代理主席职 职位。(In the event that the offices of both the President and the Vice President of the People’s Republic of China fall vacant, the National People’s Congress shall elect a new President and a new Vice President. Prior to such election, the Chairman of the Standing Committee of the National People’s Congress shall temporarily act as the President of the People’s Republic of China.)” In this sentence, “代理职位”, which literally means “act the position”, belongs to the improper verb-object collocation, which should be replaced with “代理职务 (act as the position).” Example 4: Article 94 of Criminal Procedure of the People’s Republic of China (1996 Amendment): “讯问聋、哑的犯罪嫌疑人, 应当有通晓聋、 哑手势的人参加, 并且将这种情况记明笔录。(During the interrogation of a criminal suspect who is deaf or mute, an officer who has a good command of sign language shall participate, and such circumstances shall be noted in the record.)” Here, “记明笔录”, which literally means “note a written record” is also an improper verb-object collocation. “记明 (note)” in Chinese belongs to verb-complement compound whose object should be action targets, such as “指明方向 (note the directions)”; “说明情况 (note the situation).” “记明笔录” actually means “note in the record” and “笔录 (in the record)” here shows the way of “记明 (note).” So the right structure should be “在笔录中记明” or “记录在案” (be noted in the record). Example 5: Article 67, Paragraph 2 of the Educational Law of the People’s Republic of China (1995) stipulates: “……不得违反中国法律, 不得 损害国家主权、安全和社会公共利益。” (…the laws of the People’s Republic of China shall not be violated, and the State sovereignty and security and public interests shall not be harmed.) In this article, the verb “损害 (harm)” takes three objects, including “国家主权 (the State sovereignty)”; “安全 (security)” and “社会公共利益 (public interests).” But semantically, in Chinese we can say “损害国家主权 (harm the State sovereignty)”, “ 损害社会公共利益 (harm public interests)”, but not “损害安全 (harm the safety)”. This sentence should be “不得损害国家主权和社会公共利益, 不得危害国家安 全”.

124

8 Fuzziness and Violation of Norms in Chinese Legislative Language

Example 6: Article 101 of Civil Servant Law of the People’s Republic of China (2005) states: “对有下列违反本法规定情形的, 由县级以上领导机 关或者公务员主管部门按照管理权限, 区别不同情况, 分别予 予以 责令纠正或者宣布无效; ……” (In any of the following circumstances of violation of the present Law, the leading organ or the administrative department of civil servants above the county level shall, according to the power limit of administration and in light of the different situations, give an order for correction or announces it to be invalid; …) The Chinese word “予以 (ask for)” belongs to quasi-predicate-object verb whose objects cannot be patterns like subject-predicate; predicate-object and verb-verb, but only accept two-syllable verbs or an attributive phrase with style words and adjectives as modifiers (Zhu 1981: 209). So “责令纠正 (give an order for correction)” and “ 宣布无效 (announces it to be invalid)” belong to predicate-object pattern, which cannot serve as the objects of “予以”. This sentence is caused by the fact that the predicate and the object cannot match in the parts of speech, so we just need to “予 以” should be removed.

8.1.2 Incomplete Sentence Components When words and sentences are constructed, if they do not meet the conditions of omission and omit the due ingredients, it is the incomplete sentence component, which will cause incomplete sentence structures and inaccurate expression meanings. Currently, there are many kinds of mistake sentences cause by incomplete sentence components in our legislative language.

8.1.2.1

Absence of Subject by Inappropriate Ellipsis and Preposition Misuse

Example 1: Article 22 of Administrative Reconsideration Law of the People’s Republic of China (1999) states: “行政复议原则上采取书面审查 的办法, 但是申请人提出要求或者行政复议机关负责法制工作的 机构认为有必要时, 可以向有关组织和人员调查情况, 听取申请 人、 被申请人和第三人的意见。” (Administrative reconsideration shall, in principle, examine the application in written. Except for the circumstances where the applicant makes a require or the office responsible for legal affairs of the administrative reconsideration organ deems it necessary, the administrative reconsideration organ may investigate facts among the organizations and citizens concerned and listen to the views of the applicant, the respondent of the application, and the third party.)

8.1 Ontology of Violation of Norms in Legislative Language in China

125

This is a transitional compound sentence where subject of the first clause is “行政复 议 (Administrative reconsideration).” But in the second clause “可以向有关组织和 人员调查情况, 听取申请人、 被申请人和第三人的意见 (investigate facts among the organizations and citizens concerned and listen to the views of the applicant, the respondent of the application, and the third party), the ellipsis of subject will lead to misunderstanding that its subject is still “行政复议”, but actually is “行政复议机 关 (the administrative reconsideration organ)”. Therefore, “行政复议机关” should be added at the beginning of this clause. Example 2: Article 4 of The Criminal Law (1997) stipulates: “对任何人犯罪, 在 适用法律上一律平等。……” (Anyone who commit a crime shall be equal in applying the law.…) In this sentence, the subject “任何人 (anyone)” is not literally omitted but put into the prepositional phrase “对任何人犯罪 (for anyone who commit a crime).” Therefore, when “对 (for)” is deleted, “任何人犯罪 (Anyone who commit a crime)” then can serve as subject of this sentence. Example 3: Article 145 of Property Law of the People’s Republic of China (2007): “ 建设用地使用权转让、互换、出资或者赠与的, 应当向登记机构 申请变更登记。” (Where the right to the use of land for construction is to be transferred, exchanged, offered as capital contributions, or given as a gift, an application for alteration of registration shall be made to the registration authority.) Where the right to the use of land for construction is to be transferred, exchanged, offered as capital contributions, or given as a gift, there must be two parties, namely the transferor and the transferee of land for construction. But should one party apply for registration or should both parties apply for registration? The absence of a subject applying for registration in this article makes it a question of ambiguity. According to the reality of China, it is “the transferee of the construction land”, not “the transferee of the construction land” that applies for the registration of the change of the use right of the construction land. Therefore, only by adding the word “受让方 (transferee)” before the clause “应当向登记机构申请变更登记 (shall make an application for alteration of registration to the registration authority)” can make up for the omission of subject stipulated in this article, which should be revised as “建设用地使用权转 让、 互换、 出资或者赠与的, 受让方应当向登记机构申请变更登记”.

8.1.2.2

Loss of Predicate

Example 1: Article 140 of The Criminal Law (1997): “生产者、销售者在产品中 掺杂、 掺假, 以假充真, 以次充好或者以不合格产品冒充合格产 品, 销售金额五万元以上不满二十万元的, 处二年以下有期徒刑 或者拘役, 并处或者单处销售金额百分之五十以上二倍以下罚金; …… (Where a producer or seller mixes impurities or imitations into a

126

8 Fuzziness and Violation of Norms in Chinese Legislative Language

product, or passes a fake product off as a genuine one, or passes a defective product off as a high-quality one, or passes a substandard product off as a standard one, if the sum obtained through sale amounts to not less than 50,000 yuan but less than 200,000 yuan, the offender shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention, and concurrently or independently be sentenced to a fine of not less than half of the sum obtained through sale and not more than twice of that. …)” Here in Chinese, “生产者、 销售者 (a producer or seller)” is the subject, and the behavior adverbial is “在产品中掺杂、 掺假, 以假充真, 以次充好或者以不合格 产品冒充合格产品 (mixes impurities or imitations into a product, or passes a fake product off as a genuine one, or passes a defective product off as a high-quality one, or passes a substandard product off as a standard one)”; “销售金额五万元以上不 满二十万元的 (the sum obtained through sale amounts to not less than 50,000 yuan but less than 200,000 yuan)” is the complement, and “处二年以下有期徒刑或者 拘役, 并处或者单处销售金额百分之五十以上二倍以下罚金 (the offender shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention, and concurrently or independently be sentenced to a fine of not less than half of the sum obtained through sale and not more than twice of that)” is complement sentence. In this way, the predicate “向社会销售 (sells these products to the public)” is lost, so this article becomes a sentence without a predicate. Example 2: Article 71 of The Criminal Law (1997): “判决宣告以后, 刑罚执行 完毕以前, 被判刑的犯罪分子又犯罪的, 应当对新犯的罪作出判决 。把前罪没有执行的刑罚和后罪所判处的刑罚, 依照本法第六十 九条的规定, 决定执行的刑罚。” (If after a judgment has been pronounced but before the punishment has been completely executed the criminal again commits a crime, another judgment shall be rendered for the newly committed crime; the punishment to be executed shall be decided on the basis of the punishment that remains to be executed for the former crime and the punishment imposed for the latter crime and according to the provisions of Article 69 of this Law.) The sentence “把前罪没有执行的刑罚和后罪所判处的刑罚 (the punishment that remains to be executed for the former crime and the punishment imposed for the latter crime)” has a certain structure of “subject + 把 + noun + verb (or verb phrase)” in Chinese, in which “把 + noun” constitutes a prepositional phrase. In this structure, the subject can be omitted based on its context but the verb as predicate cannot. In this article, the clause with “把” structure lost its predicate after prepositional phrase, which leads to an incomplete sentence, and we should add a verb “并罚” after the clause which will be “把前罪没有执行的刑罚和后罪能判处的刑罚并 并罚 (combination of the punishment that remains to be executed for the former crime and the punishment imposed for the latter crime).”

8.1 Ontology of Violation of Norms in Legislative Language in China

8.1.2.3

127

Loss of Object

Example 1: Article 79 of General Principles of The Civil Law of the People’s Republic of China (1986) stipulates: “所有人不明的埋藏物、 隐藏 物, 归国家所有。接收单位应当对上缴的单位或者个人, 给予表扬 或者物质奖励。” (If the owner of a buried or concealed object is unknown, the object shall belong to the state. The unit that receives the object shall commend or give a material reward to the unit or individual that turns in the object.) The Chinese phrase “上缴的单位或者个人 (the units or individuals who turned them in)” doesn’t make sense here because unit and individual cannot be “turned in”. The reason for this mistake is that the verb “上缴 (turn in)” lacks its object. It would be much understandable if the sentence is changed as “接收单位应当对上缴 这两类物品的单位或者个人, …… (the unit that receives the object shall…to the unit or individual that turns in the object.)”.

8.1.2.4

Loss of Function Words

Example 1: Article 37 of Civil Servant Law of the People’s Republic of China (2005) states: “定期考核的结果作为调整公务员职务、级别、工 资以及公 公务员奖励、培训、辞退的依据。” (The result of periodical assessment shall be the basis for the adjustment of the post, rank, wage, reward, training and dismissal of a civil servant.) Function of the Chinese word “对 (for)” is to introduce action-associated object and indicate what action or attitude has been or will be adopted to this object. Here the object of “奖励、 培训、 辞退 (reward, train and dismiss)” is “公务员 (a civil servant),” so the Chinese sentence lacks preposition “对 (for)” before “公务员奖励、 培训、辞退的依据 (the basis for reward, training and dismissal of a civil servant).” Here, the object of Chinese verbs “奖励、培训、辞退 (reward, train and dismiss)” is “公务员 (a civil servant),” but the phrase “公务员奖励、培训、辞退 的依据” lacks a preposition and leads to an unclear expression. The Chinese function word “对 (for)”, which is used to introduce the associated object of the action, indicating what action or attitude has been or will be taken towards that object., should be added before the phrase “公务员奖励、 培训、辞退的依据 (the basis for reward, training and dismissal of a civil servant)” to make the Chinese version more precise.

8.1.2.5

Loss of the “的 的” Structure

Every legal norm is not aimed at a particular individual or thing, but a certain kind of individuals or things. Therefore the same kind of individuals or things belonging to

128

8 Fuzziness and Violation of Norms in Chinese Legislative Language

same category must be in the same level of syntactic structures in language expression. In order to render clear and understandable meanings, coordinate compound structure is often employed in legal rules. This compound composition usually uses the word “的 (of)” phrase, which has been one of indispensable structurized forms in legislative language. Example 1: Article 83 of Law of The People’ s Republic of China on Road Traffic Safety (2011 Amendment): “交通警察调查处理道路交通安全违法行为和交通事故, 有下列情形之一的, 应当 回避: 是本案的当事人或者当事人的近亲属; 本人或者其近亲属与本案有利害关系; 与本案当事人有其他关系, 可能影响案件的公正处理。” (Where a traffic policeman who investigates into and handles an illegal act or traffic accident on road traffic safety is under any of the following circumstances, he shall withdraw if: i.

he is a party to the case or a near relative of a party;

ii.

he himself or his near relative has an interest relationship with the case; or

iii. he has some other kind of relationship with a party to the case, which might affect the impartial handling of the case.)

In the article, the Chinese word “的” should be added in the end of each paragraph as follows: “ (一) 是本案的当事人或者当事人的近亲属的 的; (二) 本人或者其近亲 属与本案有利害关系的 的; (三) 与本案当事人有其他关系, 可能影响案件的公正 处理的 的。” Here, the word “的” is a structurized language used to make each clause become a conditional clause and indicate a reference relationship between three conditional sentences. This special usage of “的” will be explained in more details later.

8.1.3 Misuse of Function Words There is no morphological change in Chinese, and the structural relationship between the components of the sentence is mainly expressed by word order and function words (Huang and Liao 1991: 53). However, function words are limited by some factors when they are used. Without understanding or ignoring these limitations, function words can be used incorrectly. Some highly used function words in legislative language are often misused (Liu 2003).

8.1.3.1

Mutual Substitution of “和 和 (he)” and “或 或 (huo)”

The Chinese function words “和(he)” and “或 (huo) have different meanings: “和 (he)” is equivalent to “and” in English, referring to joint choices, both or all of which

8.1 Ontology of Violation of Norms in Legislative Language in China

129

are included; “或 (huo)” is equivalent to “or” in English, which refers to a preferential choice, indicating either A or B is available. However, it has been long and common that “和” and “或” play an unclear role and are replaced with each other in legislative expression. Example 1: Article 45 of Administrative License Law of the People’s Republic of China (2004) states: “行政机关作出行政许可决定, 依法需要听证 、招标、拍卖、 检验、检测、检疫、鉴定和专家评审的, 所需时 间不计算在本节规定的期限内。行政机关应当将所需时间书面告 知申请人。” (If it is necessary to hold hearings, tendering, auction, inspection, testing, quarantine, verification and expert reviewing for making decision by the administrative organ on the administrative permit according to the law, the time necessary for those is not calculated in the time limit specified in this section. The administrative organ shall inform the applicant in written of the time needed.) Here the conjunction “和 (and)” is misused. Where the administrative organ makes decision on the administrative permit, what the organ needs to do is one or several actions listed above, not all, so the right conjunction is “或者 (or)” not “和 (and).” Example 2: Article 97, Paragraph 2 of Civil Servant Law of the People’s Republic of China (2005) states: “聘任合同的签订、变更或 或者解除, 应当报同 级公务员主管部门备案。” (The conclusion, alteration or withdrawal of an employment contact shall be put on archival filings in the administrative department of civil servants at the same level.) In this article, the three situations of “聘任合同 (an employment contact)” should all be “报同级公务员主管部门备案 (reported to the competent civil servants at the same level for the record)”. So “或者 (or)” is misused, and the right conjunction is “和 (and).”

8.1.3.2

Word “对 对 (dui)” Misused as “对 对于 (dui yu)”

Legislative language often uses the preposition “对 (dui)” or “对于 (dui yu)” to form a prepositional phrase with other words to indicate the object or scope of the act, both of which can be interpreted as “with regard to” (Wang 1997: 62). But “对 (dui)” can also introduce action, direction and goal of behavior, which means “to” in English, and also contains the meaning of “treatment”. Therefore, the application of “对” is wider than “对于”, all sentences with “对于” can be replaced with that of “对”, but not vice versa. Example 1: Article 61 of The Criminal Law (1997): “对 对于犯罪分子决定刑罚的 时候, 应当根据犯罪的事实、犯罪的性质、情节和对于社会的危 害程度, 依照本法的有关规定判处。(When sentencing a criminal, a punishment shall be imposed based on the facts, nature and circumstances of the crime, the degree of harm done to society and the relevant provisions of this Law.)”

130

8 Fuzziness and Violation of Norms in Chinese Legislative Language

In this rule, “对于” is misuse of “对” because phrase here means “treat somebody.” Example 2: Article 218 of Criminal Procedure of the People’s Republic of China (1996 Amendment): “对 对于被判处管制、剥夺政治权利的罪犯, 由 公安机关执行。…… (Sentence of public surveillance or deprivation of political rights that has been imposed on a criminal shall be executed by a public security organ. …)” In this rule, preposition “对于” is misused and should be changed as “对”. Prepositions “对于” and “对” both can introduce behavioral objects and things related to behavior, thus sometimes both are applicable for sentences. However, when the preposition indicates treatment relationship with people and its object is a single noun, this preposition must choose “对.” “罪犯 (a criminal)” in this rule is a single noun indicating individual, so the preposition here should be “对.”

8.1.3.3

Word “为 为 (wei)” Misused as “对 对 (dui)”

The difference between prepositions “对 (dui)” and “为 (wei)” is that “对” indicates the object of the action, while “为” introduces beneficiary of the action (Lü 1999: 551). Example 1: Article 8, Paragraph 3 of Administrative Procedure Law of The People’s Republic of China(1990): “人民法院应当对 对不通晓当地民 族通用的语言、文字的诉讼参与人提供翻译。(The people’s courts shall provide interpretation for participants in proceedings who do not understand the language or languages commonly used by the local nationalities.)” The object of “对” is “不通晓当地民族通用的语言、文字的诉讼参与人 (participants who do not understand the language or languages commonly used by the local nationalities)” and is beneficiary of the action “提供翻译 (provide interpretation)”. Here, the misused “对” might be misunderstood as the English word “to”, and should be changed to “为” or “替”, both of which can be interpreted as English word “for”.

8.1.4 Semantic Ambiguity The semantic ambiguity in violation of norms of legislative language refers to the contradiction or deviation in the meaning transmission of language information although the legislative provisions are grammatically correct. It can be divided into the following cases.

8.1 Ontology of Violation of Norms in Legislative Language in China

8.1.4.1

131

Inconsistent Meanings

Example 1: Article 108 of Property Law of the People’s Republic of China (2007): “善意受让人取得动产后, 该动产上的原有权利消灭, 但善意受让 人在受让时知道或者应当知道该权利的除外。” (After a bona fide transferee acquires a piece of movables, the rights previously attached to the said piece shall extinguish, unless where the bona fide transferee is or ought to be aware of the attached rights at the time of transfer of the piece.) “Bona fide” in civil law refers to that when an actor carries out a legal act, he “is or ought to be unaware of” real state of a right. In a word, “unaware of” is “bona fide.” For instance, party A borrows the bike of party B and sells it to party C. Party B, at the moment of buying the bike, doesn’t know the ownership of the bike belongs to party B and party A has no right to handle it. In this case, party C is “a bona fide transferee.” However, semantic expression after “但 (but)” in this rule is self-contradictory. If the transferee “知道或者应当知道 (is or ought to be aware of)” the attached rights at the time of transfer of the piece of movables, why he is still regarded as “善意 受让人 (a bona fide transferee)?” In another words, since the transferee is deem to be “善意 (bona fide),” but he “知道或者应当知道 (is or ought to be aware of)” real state of the attached rights at the time of transfer of the piece of movables, how to explain he is “善意 (bona fide)?” Obviously, this is a kind of violation of norms in legislative language. Not only that, here the expression of “……该权利的 (of the attached rights)” after “但 (but) has possibility of unclear meaning. Example 2: Article 294, Paragraph 2 of The Criminal Law (1997): “境外的黑 社会组织的人员到中华人民共和国境内发展组织成员的, 处三年 以上十年以下有期徒刑。” (Whoever from the staff of an organization of syndicate criminal abroad comes to the People’s Republic of China to absorb members for his organization shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years.) The connotation of “境外 (abroad)” here is very ambiguous and incomprehensible. If “境外 (abroad)” points to foreign countries, this rule should use “国外 (outside China);” if “境外 (abroad)” includes Hong Kong, Macao and Taiwan, then it should be “大陆境外 (outside China mainland).” Otherwise, it would be in conflict with “到中华人民共和国境内 (comes to the People’s Republic of China)” in this rule. According to Article 2, Paragraph 2 of the Supreme People’s Court’s Interpretations of Application of Law of Cases of Crimes Committed by Organized Gangs “港、澳、台黑社会组织到内地发展组织成员的, 适用刑法第二百九十 四条第二款的规定定罪处罚。(Whoever from the staff of an organization of syndicate criminal from Hong Kong, Macao or Taiwan comes to the People’s Republic of China mainland to absorb members for his organization shall be sentenced according to Article 294, Paragraph2 of the Criminal Law).” It can be seen from here that the use of “境外” is very inappropriate.

132

8.1.4.2

8 Fuzziness and Violation of Norms in Chinese Legislative Language

Unclear Object Reference by Misused Terms

Legal concepts and legal terminologies are professional terms in law field and are used by a certain group once their formation with fixed meanings and forms. Even though some terms were not so accurate at the time of formation, it has been not suitable to make a change if their connotations have been known to people. In a word, meanings of legal concepts and legal terminologies should be single and fixed. Anyone must hold the same interpretations to them in any situations. Breach of this principle would cause confusion about legal meanings, unnecessary disputes, as well as troubles in understanding and enforcement of law. A typical example is the concept of “prostitution” in Criminal Law of China. Interpretation of “prostitution” in The Contemporary Chinese Dictionary is “Women sell their bodies.” But Criminal Law doesn’t give a clear definition of “prostitution.” So there exists disputes in judicial practice whether “whoever organizes any man to provide sexual services for homosexuals or women for the purpose of making profits” constitutes a crime and what crimes they constitutes. Theses disputes have greatly influenced realization of the social function of Criminal Law. In addition, Criminal Law uses “servicemen” in some places and “military personnel on active service” in another places. Are two expressions the same concept? If not, what kind of relationship they belong to? For these questions, the Criminal Law doesn’t define clearly. Similarly, “explosives” is used in Article 125, Article 127 and Article 438 of Criminal Law (1997), while “explosive materials” in Article 130 and Article 136. What’s the relationship between “explosives” and “explosive materials”? It would confuse people that a set of law uses two different concepts while not giving any explanation. Example 1: Article 112, Paragraph 2 of Property Law of the People’s Republic of China (2007): “权利人悬赏寻找遗失物的, 领取遗失物时应当按照 承诺履行义务。(Where an obligee offers a reward for the finding of the thing he lost, he shall fulfill his obligation as promised when taking the thing back.)” In this article, it is inappropriate to regard reward of the obligee as “an acceptance.” That’s because “acceptance” and “offer” are corresponding concepts in civil language and represent two necessary stages of conclusion of contract. An acceptance is a manifestation of the offeree’s assent to the offer and shall be made by the offeree to the offer. If the manifestation of an obligee’s offering a reward for the finding of the thing he lost is defined as “an acceptance,” does the finder make “an offer” when he returns the thing the obligee lost? Even if the finder’s behavior can be counted as “an offer,” reward advertisement should be an offer that the obligee makes to non-specific persons, not an acceptance. And in terms of legal behavior, reward advertisement is just a manifestation of the advertisement publisher’s obligation set by he himself. Therefore, definition of the manifestation as an acceptance in this rule lacks theoretical basis. Pro. Wang Zhejian suggested, “Strictly speaking, the dispute of legal nature of reward advertisement is an issue about legal methodology. If we can abandon formal inference and adopt practical interpretation standard, reward advertisement in current law belongs to an unilateral act with no doubt. Judging

8.1 Ontology of Violation of Norms in Legislative Language in China

133

from contractualism, allowing reward advertisement to exist in the form of unilateral act conforms to the legal provisions and benefits transaction security, but also takes into account interests of the party involved and practices the principle of fairness.” In this sense, reward advertisement should not be defined as “an acceptance” (Wang 2004: 63). To avoid disputes and focusing on actual results, we had better replace the expression in this rule with “意思表示 (a manifestation of)” that could cover offer and unilateral act and write “权利人悬赏寻找遗失物的, 领取遗失物时应当 按照悬赏广告中的意思表示履行义务。(Where an obligee offers a reward for the finding of the thing he lost, he shall fulfill his obligation as the manifestation of reward advertisement when taking the thing back.)”. Example 2: Article 117 of Property Law of the People’s Republic of China (2007): “ 用益物权人对他人所有的不动产或者动产, 依法享有占有、使用 和收益的权利。” (A usufructuary shall, according to law, have the right to possess, use and benefit from the immovables or movables owned by another.) This article is legislative definition of usufructs. From the perspective of language, expression of this Article has no grammar mistakes and has a clear meaning: objects of usufructs could be immovables or movables. But analyzed from Part III of Property Law, there are four usufructs prescribed in the law: the right to land contractual management, the right to the use of land for construction, the right to the use of house sites, and easement. So it can be seen that usufructs in China are established on real estate(land). Based on the principle of property right prescribed by law, it doesn’t belong to a property right if law doesn’t prescribe categories and contents of the right. Since Property Law doesn’t prescribe usufructs of objects as movables, it shows that this kind of usufructs don’t exist in Chinese law. Then why this Article prescribes that usufructs can be established on real estate(land)? Expression in this Article isn’t compatible enough and has obvious conflict with the principle of property right prescribed by law, which easily gives rise to misunderstandings. Considering that and in order to clarify the legislative intention, Li Kangning (2010) suggested directly deleting “或者动产 (or movables)” in the Article, and changing as “用益物 权人对他人所有的不动产, 依法享有占有、使用和收益的权利。(A usufructuary shall, according to law, have the right to possess, use and benefit from the immovables owned by another.)” (Li 2010). In this way, this rule can correspond to categories and contents of property rights clearly prescribed by Property Law.

8.1.5 Inappropriate Language Logic Language is a tool of social communication and logic is the rule of human thinking, both of which are indispensable for forming and exchanging ideas. And law as the supreme norm to adjust social relations and order, concerns whether relevant rights of each social member are safeguarded and whether their obligations are fulfilled, especially compulsory punishment imposed by the state on offenders. Law is related

134

8 Fuzziness and Violation of Norms in Chinese Legislative Language

to not only economic interests of parties, but also personal freedom and survival of life. Therefore, language logic in legal field has higher requirements than other ones (Liu 2006). In our current legislation text, inappropriate language logic mainly presents itself in many aspects, such as improper enumerations, poor logic, word order problems and inconsistent cohesion of legal concepts.

8.1.5.1

Improper enumeration

Example 1: Article 147 of the Criminal Law (1997): “生产假农药、假兽药、 假化肥, 销售明知是假的或者是去是用效能的农药、兽药、化肥 、种子, 或者生产者、销售者以不合格的农药、兽药、化肥、种 子冒充合格的农药、兽药、化肥、种子, …… (Whoever produces fake pesticides, fake animal pharmaceuticals or fake chemical fertilizers, or sells pesticides, animal pharmaceuticals, chemical fertilizers or seeds while clearly knowing that such products are fake or no longer effective, or any producer or seller passes substandard pesticides, animal pharmaceuticals, chemical fertilizers or seeds off as those up to standard…)” Enumeration in this article has no superordinate concepts to summarize these acts so that it creates a feeling of complete enumeration. According to the principle where an act is not expressly defined in the laws as a criminal act, it shall not be determined and punished as a criminal act, judges are just able to determine and punish acts listed in Article. But in reality, there are acts of producing or selling fake and inferior agricultural machinery or plastic membrane which Seriously infringe upon the legitimate rights and interests of farmers and disrupt the order of agricultural production. So if “或者其他农用物资 (and other agricultural goods)” is added up to this Article to generalize these acts, it will be more conducive to cracking down on illegal and criminal acts that cheat and harm farmers. Enumeration is logical method of revealing some denotations of concept and is often employed in daily thinking to make a clear denotations of concept. Incomplete enumeration in legislative language will often create legal loopholes.

8.1.5.2

Poor Logic

Example 1: Article 27 (Section 1) of Economic Contract Law of the People’s Republic of China (1981): “……由于不可抗力或由于一方当事人 虽无过失但无法防止的外因, 致使经济合同无法履行……” (…It becomes impossible to perform economic contract for a force majeure or an external cause that one party has no fault but cannot prevent…) Here, “虽无过失 (has no fault but)” is used unreasonably nonsense. In order to make the sentence logical, either delete it or replace the sentence structure “虽无……但 (has no…but…)” with “不是……而是 (is a…, not a…)”.

8.1 Ontology of Violation of Norms in Legislative Language in China

135

Example 2: Article 54 of the Constitution of the People’s Republic of China (2004 Amendment): “中华人民共和国公民……不得有危害祖国的 安全、荣誉和利益的行为。(lt is the obligation of citizens of the People’s Republic of China… and they may not commit acts detrimental to the security, honor and interests of the motherland.)” Here, “不得有 (may not)” is illogical. Any citizen once commits acts detrimental to society or the motherland, he “dose commit” these acts. The state can punish him but not change the fact that he “does commit” these acts.

8.1.5.3

Word Order Problems

Example 1: Article 193, Paragraph 3 of Criminal Procedure of the People’s Republic of China (2012 Amendment): “审判长在宣布辩论终结后, 被告人有最后陈述的权利。(After the presiding judge has declared conclusion of the debate, the defendant shall have the right to present a final statement.)”

In this article, the prepositional phrase “在宣布辩论终结后 (After the presiding judge has declared conclusion of the debate)” is a adverbial, where “审判长 (the presiding judge)” is subject and predicate isn’t seen. Judging from this Article’s meaning, target of the statement is obviously the “被告人 (defendant).” “审判长 (the presiding judge)” is a part of the adverbial. That is “在审判长宣布辩论终结 后 (After the presiding judge has declared conclusion of the debate)” serves as the adverbial. So general expressive form of this sentence should be “被告人在审判长 宣布辩论终结后, 有最后陈述的权利.” if we intend to emphasize the time, we can put the adverbial ahead of main clause which becomes “在审判长宣布辩论终结后, 被告人有最后陈述的权利.” Improper word order in this Article is detrimental to accuracy and logic of legislative language.

8.1.5.4

Inconsistent Cohesion of Legal Concepts

If, when making laws, the society has developed to the point where the original concepts fail to satisfy needs of the society, while introducing new concepts is hard to adapt to the reality of social life, it is time to re-define the original concepts and endow them with new connotations. In this case, at least two respects need be considered: First, persistence of cultural concepts carried in the original concepts and its impact on new definitions. If persistence of the original concepts is stronger than social acceptance of new concepts, whether it will impair connotations of new definitions. Second, how to coordinate new definitions with the original concepts in current effective laws? If changes of concepts cannot be widely accepted by society and fail to be connected with other laws in current legal system, use of new concepts need be carefully considered (Li 2010).

136

8 Fuzziness and Violation of Norms in Chinese Legislative Language

It is the most common problem in the current law that phrases in different legal norms or even in the same legal norms are different. For instance, in Criminal Law of China (1997), there are seven articles using “军人 (servicemen)” while Article 259 uses “现役军人 (military personnel on active service).” Are “军人 (servicemen)” and “现役军人 (military personnel on active service)” the same concept? Can “ 军人 (servicemen)” be applied to Article 259? These questions have give rise to huge disputes and there are four different views about these questions (Zhou 2002). Similar cases are often seen. For example, in The State Indemnity Law of the People’s Republic of China “违法 (illegally)”, “非法 (illegally)” and “错误 (wrongly)” are used alternately. These expressions exist at the same time like “违法拘留或者 违法采取限制公民人身自由的行政强制措施的 (to make a detention illegally or take administrative compulsory measures illegally to restrict the right of personal freedom of a citizen)”, “非法拘禁或者以其他方法非法剥夺公民人身自由的 (to make a constraint illegally or deprive illegally the personal freedom of a citizen with other measures)” and “对没有犯罪事实或者没有事实证明有犯罪重大嫌疑的人 错误拘留的 (to detain wrongly a person with no criminal facts or no facts proved to be a major suspect).” As we all know, the principle of The State Indemnity Law is law-violating principle, also called government imputation standard. That is the State indemnity is based on the fact that the administrative act confirmed by the judiciary is illegal. In this sense, “违法 (illegal)” should be a fixed term with sole meaning and cannot be changed. However, situations prescribed as “非法 (illegally)” or “错误 (wrongly)” here undoubtedly belong to illegal categories prescribed in this Law. Additionally, what’s more serious is titles of many laws in our country are also different. For instance, our state has made laws on protection of the rights and interests for certain populations like minors, disabled persons, women, the elderly, consumers and returned overseas Chinese and their family members, but their titles are not uniform:《中华人民共和国未成年人保护法》 (Law of the People’s Republic of China on the Protection of Minors); 《中华人民共和国残疾人保障法》 (Law of the People’s Republic of China on the Protection of Disabled Persons);《中华人民共和 国妇女权益保障法》 (Law of the People’s Republic of China on the Guarantee of the Rights and Interests of Women);《中华人民共和国老年人权益保障法》 (Law of the People’s Republic of China on Protection of the Rights and Interests of the Elderly); (Law of the People’s Republic of China on 《中华人民共和国消费者权益保护法》 Protection of the Rights and Interests of Consumers) and《中华人民共和国归侨侨 眷权益保护法》 (Law of the People’s Republic of China on Protection of the Rights and Interests of Returned Overseas Chinese and the Family Members of Overseas Chinese). In these laws, why do some use the word “权益 (rights and interests),” while the others not; why do parts of them use the word “保护 (protect)” while the others use “保障 (guarantee)”? Legislative organs don’t give reasonable explanation for the differences between these words.

8.1 Ontology of Violation of Norms in Legislative Language in China

8.1.5.5

137

Improper use of Punctuation

Example 1: Article 6, Paragraph 2 of The Constitution of the People’s Republic of China (1982): “社会主义公有制消灭人剥削人的制度, 实行各尽所 能, 按劳分配的原则。(The system of socialist public ownership supersedes the system of exploitation of man by man; it applies the principle of “from each according to his ability, to each according to his work.”)” Here the second comma is misused and should be changed as a slight pause mark “ 、”. Example 2: Article 58, Paragraph 2 of The Criminal Law (1997): “被剥夺政治权 利的犯罪分子, 在执行期间, 应当遵守法律、行政法规和国务院 公安部门有关监督管理的规定, 服从监督; 不得行使本法第五十 四条规定的各项权利。(Criminals who are sentenced to deprivation of political rights shall observe laws and administrative regulations and relevant stipulations on supervision and administration promulgated by the Department Public Security under the State Council, submit to supervision; and shall not exercise the rights of freedom stipulated in Article 54 of this Law.)” A slight pause mark “、” should be added up between “国务院 (the State Council)” and “公安部门 (the Department Public Security).” Only by doing so can this rule express clearly and show that criminals shall “observe” “relevant stipulations on supervision and administration” promulgated by both the Department Public Security and the State Council. Example 3: Article 93 of Criminal Procedure of the People’s Republic of China (1996 Amendment) states, “侦查人员在讯问犯罪嫌疑人的时候, 应 当首先讯问犯罪嫌疑人是否有犯罪行为, 让他陈述有罪的情节或 者无罪的辩解, 然后向他提出问题。犯罪嫌疑人对侦查人员的提 问, 应当如实回答。但是对与本案无关的问题, 有拒绝回答的权利 。(When interrogating a criminal suspect, the investigators shall first ask the criminal suspect whether or not he has committed any criminal act, and let him state the circumstances of his guilt or explain his innocence; then they may ask him questions. The criminal suspect shall answer the investigators’ questions truthfully, but he shall have the right to refuse to answer any questions that are irrelevant to the case.)”. The period after “应当如实回答 (shall answer the investigators’ questions truthfully)” should be changed as a comma. The first compound sentence in this rule tells about the investigators’ interrogation of the criminal suspect and letting him state and explain. Then the next compound sentence suggests that during interrogation, the criminal suspect shall have the legal obligation to answer questions and the rights to refuse to answer any questions that are irrelevant to the case. When the aforementioned period is replaced with a comma, two parts of this article are coordinate and set off by each other in their content as well as symmetrical and reasonable in structure.

138

8.1.5.6

8 Fuzziness and Violation of Norms in Chinese Legislative Language

Improper and Redundant Use of Words

Example 1: Article 84, Paragraph 3 of The Constitution of the People’s Republic of China (2004 Amendment): “中华人民共和国主席、副主席都缺位 的时候, 由全国人民代表大会补选; 在补选以前, 由全国人民代表 大会常务委员会委员长暂时代理主席职位。(In the event that the offices of both the President and the Vice President of the People’s Republic of China fall vacant, the National People’s Congress shall elect a new President and a new Vice President to fill the offices. Prior to such election, the Chairman of the Standing Committee of the National People’s Congress shall temporarily act as the President of the People’s Republic of China.).” “暂时 (temporarily)” here is redundant because “在补选以前 (prior to such election)” already includes the meaning of “暂时 (temporarily).”

Example 2: Article 55, Paragraph 2 of The Constitution of the People’s Republic of China (2004 Amendment): “依照法律服兵役和参加民兵组织是 中华人民共和国公民的光荣义务。(It is the honorable obligation of citizens of the People’s Republic of China to perform military service and join the militia in accordance with law.)” “Honorable” or “not honorable” is a matter of human feeling and the law is hard to provide. As long as it is a legal obligation, individuals shall fulfilled it even if they feels dishonorable; as long as it is not a legal obligation, individuals may refuse to participate in it even if it is honorable. Therefore, language in this kind of literary style like “光荣义务 (honorable obligation)” should not become legislative language. Example 3: Article 3, Paragraph 1 of The Constitution of the People’s Republic of China (2004 Amendment): “中华人民共和国的国家机构实行民主 集中制的原则。(The State organs of the People’s Republic of China apply the principle of democratic centralism.)” The phrase “的原则 (the principle of)” here is redundant and should be deleted.

8.2 Epistemology of Violation of Norms in Legislative Language in China Legislative language belongs to expressive technique in the category of legislative technology. Legislative expression has to rely on legislative language which is a constitution of legislative technology. Legislative expression technology requires: first, normative legal documents should be standardized and legal titles should be standardized and unified. That is to say, when different legal authorities are establishing legal documents, they must use the same legal titles because of different levels of legal effect; second, expression of legal norms should be complete, generalized

8.2 Epistemology of Violation of Norms in Legislative Language in China

139

and accurate; third, the use of legislative language should be exact, rigorous and brief. Being exact means we have to use definite and certain language to clearly express legal concepts; being rigorous means we have to use logical language to express content of legal norms; being brief means we use as concise and understandable language as possible to express content of law. Laws and other normative legal documents in China have violation of norms in legislative language for two reasons and problems in nature: on the one hand, legislative authorities don’t attach enough importance to role legislative language plays in legislative technology; on the other hand, legislative procedures lack technical scrutiny of legislative expression. Of course, there are also reasons for language, culture and national conditions, as follows.

8.2.1 Lag of Legislative Technology Theory Research Legislative language belongs to category of legislative technology and is a specialized language directly related to legislation quality. It is not only intersected with linguistics, but also inseparable with jurisprudence. It has unique laws and systems and must be studied and practiced as a science. People should study and practice legislative language as a science. In foreign countries, there are professionals specializing in these studies. In 1950s and 60s, a group of well-known scholars represented by William Strunk, Jr. in Britain, and in America, Reed Dickerson Richard Wydick, and Rudolph Flesckin, started research on how to use plain and normative language to express legal texts. William Strunk, Jr., co-author of The Elements of Style, summarizes 7 basic idiom rules, 10 basic writing rules, 21 style rules and other rules of wording and making sentences. Works by those scholars are greatly pragmatic, with every opinion proved by examples and exercises of legislation drafting attached. Many schools of Law in America offer courses in legislation drafting, which cover the systematic rules of legislative drafting, including legislative language (Seidman 1992). In Japan, the senior draftsman of the Legislative Affairs Bureau of the Japanese Cabinet has produced four volumes of Introduction Lecture on Legislative Technology, Introduction to Legal Terms and other books. These books discuss draft of Japanese legislative documents, structure of legislative documents and wording and phrasing of legislation. But in China, study and teaching of legislative language are ignored for a long time; legal linguistics is a strange and marginal discipline in universities, and only few universities open legal language courses with none of legislative language; there are few professionals specializing in study of legal language, not to mention professionals in study of legislative language. In a word, contradiction between rapid advance of legislation and the lagging study of legislative technology (including legislative language) plays a role in violation of norms in legislative language in China.

140

8 Fuzziness and Violation of Norms in Chinese Legislative Language

8.2.2 Absence of Special Legislative Drafting Body Legislation is a highly technical professional work, which needs to be implemented by professionals with considerable legal literacy and language skills. Throughout the international community, every country with a high level of legislation has a working body specially responsible for drafting legislation, among which there are special legislative drafters responsible for the production of legal texts, so as to realize their standardization For example, common law countries have long established the Office of Parliamentary Counsel or the Office of Legislative Counsel, which is the main body for drafting all legislation (Zhou 2009: 36). It is characterized by dividing the drafting of legislation into a political process and a technical process, with parliamentary advisers responsible for the writing and bills not drafted by parliamentary advisers not considered. In order to maintain the standardization of legal texts, legislative bodies at all levels in these countries have made provisions on the formats of legal texts and some important terms, some in the form of special legislation, some in the form of legislative manuals, and some in combination. For example, the Office of Legislative Counsel in the U.S. Congress has its own legislative manual, as does the Massachusetts General Assembly. Civil law countries such as Japan have special legislative drafting bodies in their parliaments and executive departments. These departments also have legislative drafting manuals, which are used to guide legislative drafters to develop unified, standard and normative legal texts. “Principle in France is: laws and decree had better be drafted by those who master professional knowledge of subjects related in laws…” However, in the current legislative mechanism, the legislative power is exercised by the NPC and its Standing Committee. The NPC and its Standing Committee are not only a legislature, but also an organ of power. The drafting of most legal texts is done by temporary members. The scrutiny of the special committee also focuses only on the content of the bill, and the scrutiny of the language is almost non-existent. It is precisely because of such mechanism defects that the violation of norms in legislative language occurs repeatedly.

8.2.3 Absence of Legislative Language Review Procedures Legislative procedure refers to the legal steps and methods which must be followed by certain state organs in the activities of creating, modifying, supplementing and abolishing normative legal documents. Our current legislative process has distinct Chinese characteristics. Article 58 of the Constitution (amended in 2004) stipulates that the National People’s Congress and its Standing Committee exercise state legislative power. The legislative process of the state legislative power can be summed up in four stages: submission, deliberation, adoption and promulgation. The submission of a bill is the first step in the legislative process of the state’s legislative power. A bill refers to “matters submitted to the People’s Congress and its Standing Committee for deliberation by relevant bodies in accordance with legal

8.2 Epistemology of Violation of Norms in Legislative Language in China

141

procedures”. A bill must not only conform to the requirements of form, but also, in terms of content, must fall within the power and powers of the people’s congress at the corresponding level. If it is related to the work of the government, it should not be put forward in the form of a bill, but in the form of suggestions, criticisms and opinions. In practice, as it is not easy to grasp the contents of “within the scope of the functions and powers of the people’s congresses”, a considerable number of motions at the annual sessions of the people’s congresses at all levels are actually suggestions, criticisms and opinions on various aspects of work. Therefore, they are discussed and approved by the presidium of the congresses at each session. We must transfer many of the motions put forward by NPC deputies to suggestions, criticisms and opinions. In addition to the content of the bill itself, a draft law shall be attached to the bill. That is to say, when a legal bill is submitted, the law referred to in the bill has already been drafted, and the draft law is also submitted to the legislature for deliberation or not by the presidium of the General Assembly. This easily leads to the problem that if the legislative language in the draft law does not meet the technical requirements of legislation, deputies to the National People’s Congress will inevitably be troubled and entangled by the linguistic problems of the legal provisions during deliberation. However, this problem itself should not arise in the deliberation stage, because this is not the task of the deliberation stage, but the requirement of the duties of the drafters of the law. This kind of legislative procedure set around the content is also one of the important reasons for the violation of norms in legislative language.

8.2.4 Influence of Language Culture and the Weak Consciousness of Language Norms As a symbol system, language has its own limitations of expression. Heidegger said, “The existence of the world is not expressible, language can never express the true nature of the world” (Shen 1999). New analytical positivism jurist Hart once argued from the method of semantic analysis that any word has a main and stable core meaning, that is, the meaning center of language, and at the same time has its relatively fuzzy edge meaning, that is, its open structure. In the core ranges of word meanings, people will not argue whether an object is what a word points to. For example, people are certainly sure that “car”, “electric car”, and “truck” lie in the range of “vehicle”. But when there exits the “open structures”, people will argue over their meanings, contents and ranges. For example, it is hard to determine whether “bicycle”, or “skateboard with wheels” belongs to the range of “vehicle”. Legal terms are composed of words. “Signifier” and “Signified” of language itself are not consistent with each other, and sometimes even have gaps “to the degree of totally irrelevance”. Meanwhile, the use of legislative language also need conform to settled patterns and expression manners, which leads to the limitation of word choice. Therefore, finite legal languages take on tasks of carrying and conveying infinite legal information. Inappropriate use of fuzzy words may lead to violation of norms in

142

8 Fuzziness and Violation of Norms in Chinese Legislative Language

legislative language. In addition, China has several-thousand-year history of feudal society which is a patriarchal clan society regarding “礼(li) (ritual)” as s key link and emphasizing on natural kinship. In such society, individuals are hiding behind their family and nation, and the emperor represents a nation. This social relationship creates such atmosphere as oppressed personality and introverted thought. Under the influence of this tradition, when people understand legal phenomena, they tend to be satisfied with getting a general impression through intuition, and are not accustomed to making detailed analysis, which is incompatible with the logical and rigorous thinking mode of legislative language. In addition, a basic policy of our legislative work is “better fuzzy than specific”, which also causes the existence of a large number of non-standard languages in current legislation.

8.3 Axiology of Violation of Norms in Legislative Language in China Value relation is the core content of all social relations. The concept of value, in a philosophical sense, refers to a specific relationship between object and subject. Value is divided into positive value and negative value. The violation of norms of legislative language is undoubtedly negative value, which is very conducive to our legal state construction and legal life.

8.3.1 Adverse Effects and Negative Consequences of Violation of Norms in Legislative Language Firstly, it will reduce the quality of legislation and waste legislative and judicial resources. Legislation is the basis of rule of law, and the quality of legislation determines the quality of rule of law. Legislation is not only the duty of state power organs, but also the process of consuming legislative resources such as human, material and financial resources. If a large amount of legislative resources are consumed, and laws with nonstandard language are constantly formulated, then they have to revise the nonstandard laws or carry out judicial interpretation, request and reply to its application, and so on, it will inevitably increase the cost of legislation and justice and waste precious legislative resources. This vicious circle will reduce function and value of law to adjust social relationships. Secondly, it will fail to fully and accurately express the legislative purpose and intent, thus condoning unconstitutional and illegal acts. Law, as code of conducts all society shall follow, must embody legislative goals and intentions of designing particular policies by means of standard legislative language. Nonstandard legislative language will distort original intentions of standard design and system planning. Violation of norms in legislative language inevitably makes legal norms fuzzy and

8.3 Axiology of Violation of Norms in Legislative Language in China

143

increase difficulties in judging acts of breaking the Constitution and laws, resulting in indulgence in acts of breaking the Constitution and laws. Liu Dasheng (2001) pointed out that nonstandard legal provision “advocate voluntary labor” may result in a wide range of overtime work, and thus violate labors’ right to rest prescribed in the Constitution. “Citizens in the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of the society, or of the collective, or upon the lawful freedoms and right of other citizens.” This fuzzy rule may provide excuses for unconstitutional acts of violating and even depriving of citizens’ basic rights. Since exercise of any rights may bring about unfavorable results for other, any rights can be deprived of for obstructing others’ rights and interests. Goals of law and government duty are to adjust contradictions and conflicts between rights, but not to ask generally citizens’ rights not to infringe upon the interests of others and organizations. Thirdly, it will damage the solemnity and authority of the enactment of law, so that people lose their faith in law. In social life, establishment of law is a serious, pragmatic, and solemn activity, and legal expression should be an example of treating in a serious and solemn attitude. If legislative language is nonstandard or even nonsense, solemnity and authority of law cannot be achieved. If law, which should “regulate citizens’ rights so as to avoid conflicts”, becomes unserious, authority of law and people’s faith in law will be overthrown. In such environment, people will not follow rules even if there are ones, and “unofficial rules followed by people subconsciously” will be popular. Fourthly, it will bring about difficulties for judicial organs to understand and apply the law. Violation of norms in legislative language most directly affects judicial organs because judges need apply law to adjusting social relationships having disputes. If expressions itself of legal norms are nonstandard, judges will have different opinions of understanding legal provisions and face difficulties in applying law. Article 140 of The Criminal Law (1997) rules “Where a producer or seller mixes impurities or imitations into a product, or passes a fake product off as a genuine one, or passes a defective product off as a high-quality one, or passes a substandard product off as a standard one, if the sum obtained through sale amounts to not less than 50,000 yuan but less than 200,000 yuan, the offender shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention, and concurrently or independently be sentenced to a fine of not less than half of the sum obtained through sale and not more than twice of that. If the sum…” Here subjects of crimes are producer or seller, but punishment only is targeted on acts of selling a fake product and ignores acts of producing, with subjects and acts being asymmetrical in expressions. If a producer manufactures a large number of fake products, but is found out before selling, is this act a crime? If it is, what sentence should be given? Based on what criteria? If it isn’t, why list a producer as subject of crimes. Fifthly, it will impair language science and bring confusion to legal education and law popularization. A nation’s language is gradually developed through centuries of years and becomes well-developed communication tool following grammar rules and device of social communication. But if legislative language which should strictly abide by language norms, is filled with countless nonstandard expressions, that will

144

8 Fuzziness and Violation of Norms in Chinese Legislative Language

have adverse impact on legislation, judicature and other legal activities. Not only that, it will also greatly impair linguistic sciences and pose challenge to the authority of formal, serious legislative language, both of which do more harm than online language in recent years to standard language. Issues concerning rights and obligations in laws must be expressed by legislative language, and judges have to cite legal provisions when they apply laws, so people cannot refuse to apply due to nonstandard legal provisions. Otherwise, all society will get used to using nonstandard language while ignoring linguistic sciences. In addition, establishment of legal norms to a large degree reflects achievements of legal theory study. But nonstandard legislative language cannot correctly reflect the study, but also brings about troubles in legal education.

8.3.2 Possible Methods to Revise Violation of Norms in Legislative Language in China In order to prevent and overcome violation of norms in legislative language and realize standardization of legislative language, people need at first understand in depth the importance of language norms, but also build up awareness of language norms, stick to this awareness through legislative drafting work, and further make it play a vital role in work concerning legislative language. What’s more, the society needs to pay enough attention and make efforts from the following aspects to achieve the standardization of legislative language.

8.3.2.1

To establish a System for Language Experts to Participate in the Drafting of Legislation, and Systematically Clean Up the Language of Existing Legislation

In the legislative work, legislative language plays a vital role as the representation and carrier of laws. How to accurately and skillfully use legislative language is one of the decisive factors of legislative quality. Common law countries have long established the Office of Parliamentary Counsel or the Office of Legislative Counsel, which is the main body for all legislative drafting. Its feature is that the drafting of legislation is divided into political process and technical process. Parliamentary counsel is responsible for writing work, and bills drafted without parliamentary counsel are not considered. In order to maintain the normalization and standardization of legal texts, legislative bodies at all levels in these countries have stipulated the format of legal texts and some important terms, some in the form of special legislation, some in the form of legislative manuals. However, Chinese legislative drafters are mainly legal experts and scholars, and they are not experts in the Chinese language, so it is inevitable that there will be some problems in the use of legislative language. Therefore, to realize the goal of standardizing the legislative language, we must change the

8.3 Axiology of Violation of Norms in Legislative Language in China

145

present situation of the professional structure composition of the legislative drafting team. We believe that the legislative drafting team should at least include experts in the following aspects: Legal experts. This is the main composition of the legislative drafting team and should be the absolute majority of the whole group. They are mainly responsible for the check of laws; Chinese philologists. This is an important member of the legislative drafting team, the number of whom should account for a certain proportion. They are mainly in terms of language check; and experts in logic. This is also an important member of the legislative drafting team, the number of whom should account for a certain proportion. They are mainly responsible for the logic check. In addition, to correct errors and standardize legislative language, legislative organs should also take a series of measures and set up specific legislative language review bodies to systematically review language of current legislation. Considering there are a large number of laws with different legal effect in current laws, the task of comprehensively cleaning up laws is very massive and difficult. We can hand this task to corresponding departments that can divide the task into different stages and different steps: legal affairs committee of the Standing Committee of the National People’s Congress can first organize professionals to review language of law issued by the National People’s Congress and its Standing Committee; enacting organs in the State Council and other department committees can organize professionals to review administrative provisions issued by the State Council and other department committees; and legal affairs departments in local areas, provisions and rules issued by local governments.

8.3.2.2

To Strengthen the Teaching and Research of Legislative Language and Cultivate Interdisciplinary Talents

There are many reasons for violation of norms in legislative language, among which the most important is the long-term neglect of the research and teaching of legislative language. At present, China’s universities seldom open legal language courses in undergraduate stages, not to mention legislative language courses; a minority of universities have legal language direction, but still lack legal language major, not to mention legislative language major. In recent years, an increasing number of professionals participate in research on legal language, but the number overall is still small. In 1950s and 60s, a group of well-known scholars represented by William Strunk, Jr. in Britain, and in America, Reed Dickerson Richard Wydick, and Rudolph Flesckin, started research on how to use plain and normative language to express legal texts. William Strunk, Jr., co-author of The Elements of Style, summarizes 7 basic idiom rules, 10 basic writting rules, 21 style rules and other rules of wording and making sentences. Works by those scholars are greatly pragmatic, with every opinion proved by examples and exercises of legislation drafting attached. Many schools of Law in America opened legislation drafting courses and teach systematical rules of legislation drafting including legislative language (Zhou 2009: 36). Therefore, to strengthen the work of legal language research in our university, establish professional journals

146

8 Fuzziness and Violation of Norms in Chinese Legislative Language

of legal language research, publish monographs and textbooks on legal language research, encourage scholars to actively engage in this field of research, and cultivate a batch of compound legislative linguistics talents who are well versed in legislation and linguistics, is the fundamental method to resolve violation of norms in legislative language in China.

8.3.3 To Make Greater Efforts to Build Up a Standard Legislative Language Corpus From the perspective of legislative technology, the reason why there are conflicts, overlaps and omissions in Chinese laws is that we lack a set of standard and rigorous legislative language corpus. If all laws are drafted based on corresponding concepts and expressions in corpus, we may be able to reduce those conflicts, overlaps and omissions. However, we cannot set up legislative language corpus by means of imagination. We should sum up, generalize and refine established legislative examples, and only based on reality and extensive investigation can we apply corpus to legislative practices. Setting up legislative language corpus is an attempt to solve problems from the origin of language choice. Legislative organs can set up specific projects and collect funds for specific purpose so that jurists and linguists can work together to research, develop and establish legislative language and classify as well as build up different kinds of corpus about standard expression of legislative language. Moreover, legal Chinese seldom has exact translation and legislative language has a low level of standardization. Therefore, use of legislative language corpus will boost exactness of legal translation and standardization of legal language.

8.4 Conclusion Although violation of norms in legislative language is a minor flaw in currently applied laws, it directly damages seriousness and authority of law, and even may become an obstacle to our construction of legal system. So we must solve this problem in embryo as well as in the process of legislation. Considering realistic damage caused by disadvantages of violation of norms in legislative language, legislative organs should begin a comprehensive review of language of currently applied law, set up legislative language review bodies and establish procedural prerequisite to review language of legislative draft; they should, while reviewing language of former laws, provide technical, procedural and systematical support to prevent new laws from repeating violation of norms in legislative language as former laws do. At the same time, we should grow consciousness of legislative language norms, strengthen educational and scientific research on legislative language and develop interdisciplinary talents, which are fundamental solutions to violation of norms in legislative language in China.

References

147

References Huang, Borong, and Xudong Liao. 1991. Modern Chinese: II, 53. Beijing: Higher Education Press. Li, Kangning. 2010. The language anomie in civil laws and its remedy. Science of Law (Journal of Northwest University of Political Science and Law) 5. Liu, Dasheng. 2001. An analysis of violation of norms in the current legislative language in China. Law Science 1. Liu, Hongying. 2003. “Or” in statutory law. Contemporary Rhetoric 3. Liu, Yonghong. 2006. An analysis of ungrammatical phenomenon in the current legislative language in China. Social Sciences Journal of Universities in Shanxi 10. Lü, Shuxiang. 1999. Lexicons of modern Chinese, 551. Beijing: The Commercial Press. Seidman, Robert. Handbook for legislative services. Boston: School of Law, Boston University. Chinese edition: 赛德曼. 1992. 立法服务手册 (trans: Qingpei Zhao and Hua Yang). Beijing: China University of Political Science and Law Press. Shen, Minrong. 1999. The evolution of statutory law and the construction of legal system in China. Presentday Law Science 1. Song, Beiping. 2006. Research on standardization of legal language in China. Journal of Beijing College of Politics and Law 3. Wang, Jie. 1997. The course in legal linguistics, 62. Beijing: Law Press·China. Wang, Zejian. 2004. Science of civil law and study of civil cases, 63. Beijing: China University of Political Science and Law Press. Zhou, Xiaolin. 2002. An analysis of ungrammatical or ill-formed sentences in the texts of administrative laws and suggestions for revision. Applied Linguistics 3. Zhou, Wangsheng. 2009. Science of legislation, 36. Beijing: Law Press·China. Zhu, Dexi. 1981. Lectures on Chinese grammar, 209. Beijng: The Commercial Press.

Chapter 9

Thoughts on Standardization of Chinese Legislative Language from the Perspective of Sociology of Law

9.1 Introduction Legislation is the foundation of the rule of law, and the quality of legislation determines the quality of the rule of law. In the process of emphasizing that “there are laws to be followed, laws to be observed, law enforcement to be strict, violations of the law to be prosecuted”, we increasingly perceive the importance of standardization of legislative language. Aristotle, an ancient Greek scholar, was the first foreign advocate of the rule of law. When refuting the rule of man, he pointed out that law (legislative language) has a feature of “stability and explicitness”. The French Civil Code, promulgated and initially implemented in France in 1804, strives for clear and comprehensible language, as well as rigorous stylistic structure. However, the German Civil Code, drafted in 1874, was criticized and attacked by German jurists such as Otto Gierke and Hans Thonle for its lack of concise, intelligible and rigorous language. It was against this background that the study of legislative techniques and legislative language in the Western world began. The earliest European treatise on legislative language was George Coode’s On Legislative Expressions: Or the Language of the Written Law in 1843, but not much was written on the subject after that, from 1850 to 1950s. After legal linguistics became an independent discipline in Europe and America, as an important area of the discipline, legislative language was widely and intensively studied. At present, foreign research on legislative language mainly focuses on: the legislative drafting issues, such as Reed Diekerson’s Legislative Drafting; the general theory of legislative language or legal language, such as Mellinkoff’s The Language of the Law, etc.; the simplicity of legislative language or legal language; other issues of legislative language or legal language, such as Graeme J. Neale’s Legal Language in Culture; and so on (Pan 2004).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language, https://doi.org/10.1007/978-981-99-2633-6_9

149

150

9 Thoughts on Standardization of Chinese Legislative Language …

9.2 The Legal Sociological Reasons for Fuzziness of Legislative Language We believe that legislative texts, as the linguistic carrier of legal norms, should be a model of compliance with the rules of language and writing, which is a prerequisite for achieving the universal binding force and supreme authority and solemnity of the law. With the advancement of globalization and the rule of law, there is a growing awareness that legal (linguistic) standardization is in conformity to the rule of law, while non-standardization is contrary to it and imply an imperfect legal system. The study of legal language standardization should be integrated into the system of the sociology of law, for one of the important characteristics of language is its social nature, whose importance is doubled for legal language. Firstly, language is inherently social, as well as ideological and cultural, and is an integral part and symbol of culture. Only when language is placed within a specific ideological and cultural tradition, combined with the systems of cognition, evaluation, mentality and behaviour patterns that constitute the social and cultural totality, and analyzed in a multidimensional and systematic manner, can we truly understand the connotation and meaning of legal language. Secondly, law is a product of class society and is used to regulate social activities and social behaviors. From its inception, it has been socially marked. Therefore, it is impossible to fully reveal the characteristics of legal language ignoring social factors in the study of legal language (Dong 2004). The interpretation of the non-standardization of legislative language from the perspective of sociology of law is conducive to a proper understanding of the broad sociocultural context in which the nonstandard phenomenon is formed. It also contributes to a better understanding of the social support factors and restraining mechanisms in the formation of nonstandard language, as well as its negative impact on the construction of the rule of law. According to Ehrlich, the focus of legal development is not in itself but in society. The sociology of legislation is a sub-discipline under the coverage of sociology of law. It is concerned with the relationship between the phenomenon of social legislation and the overall system of society in terms of mutual adaptation, mutual promotion and mutual restraint. By applying the views and methods of modern sociology, it attempts to rationally grasp the social nature, purpose and function of legislation, as well as the social constraints of effective legislation, so as to perceive legislation under the context of society and see through society in virtue of legislation. The conceptual analysis tool of the sociology of legislation takes legislation as the process of forming legal norms from the society. And it takes the language of legislation as a medium for fixing the facts of life related to law (or social legal relations) in the form of legal texts through mandatory norms, with the aim, on the one hand, of gaining a true understanding of the phenomenon of law in real life, and on the other hand, of constructing a real meaning and value picture of human existence, hopefully, on the basis of which, guiding human beings to a desirable and happy life (Dong 2007). Studying the standardization of legislative language in China from the perspective of the sociology of law not only allows us to focus on the broad

9.2 The Legal Sociological Reasons for Fuzziness of Legislative Language

151

sociocultural context in which the non-standard legislative language was formed, but also allows us to specifically explore the social support factors and restraining mechanisms in the formation of nonstandard language, as well as its negative impact on the construction of the rule of law. This is conducive to the design of ways and means to rectify the nonstandard legislative language, thereby improving the quality and efficiency of legislation, advancing the rule of law and enhancing the authority of law implementation. Legislative language is a kind of technical language distinct from natural language, a carrier of legal norms and the primary means of embodying the spirit of legislation and expressing legislative intent. Law is the general term for the norms of behavior that embodies the will of the ruling class. It is formulated or approved by the state and is guaranteed by the state’s coercive force to be performed. Legislative texts expressing legal norms have their own specific logical structure. Precision and ambiguity are two important features of human natural language, reflecting the characteristics of human thinking. In legal language, the use of precise words undoubtedly ensures the accuracy of legal language, but, in certain circumstances, the use of fuzzy words can play an irreplaceable role and contribute to more accurate legal language. While, conversely, the improper use of fuzzy words will affect the accuracy of legal language. Therefore, it is important to pay attention to the corresponding and dissimilarity between precision and fuzziness, only by which the accuracy and rigor of legal language can be ensured. As a cognitive process, legislation is subject to objective social conditions. The poor linguistic environment on the periphery of the law has a subtle and negative impact on legal language and is one of the major causes of the non-standardization of legal language. That is to say, non-standard language in society is bound to be reflected in legal texts. It is not difficult to imagine that if a legislator is exposed to non-standard language all day in social life, it is difficult for him to draft legal documents without being influenced by such non-standard language, and it is difficult for the legal documents he drafts to be free of linguistic mistakes. For example, in the book The Rule of Law and Its Indigenous Resources, published by the China University of Political Science and Law Press in 1996, on page 13 the author writes, “What’s the reason for why has China not achieved much success in its efforts to modernize the law since modern times”. The sentence is clearly not grammatical with both “what’s the reason” and “why” indicating cause. And on page 269, the author uses a phrase “功告垂成”, but there is actually no such idiom in Chinese. And it is clearly a mash-up of the Chinese idioms “大功告成 (being crowned with success)” and “功败垂成 (suffering defeat on the verge of victory)”. What’s more, in the preface to the book, there is an even more puzzling sentence, “If human life is finite”. How can one use the word “if” when human life is indeed limited (Liu 2009)? In his book Language: an introduction to the study of speech, the American linguist Sapir (1921) wrote: “Language cannot exist in isolation from culture, from the various practices and beliefs inherited by society, the totality of which determines the nature of our lives” (Sapir 1921). China is a country that has experienced a feudal society for thousands of years, a patriarchal society in which “rites and rituals” were

152

9 Thoughts on Standardization of Chinese Legislative Language …

the order of the day and natural blood relations were highly valued. In such a society, the individual was inferior to the family and the state, and the state was represented by the king. This kind of social relationship has resulted in repressed individuality and introverted thinking, influenced by which, people are often satisfied with getting a general impression through intuition in the face of legal phenomena, rather than having a thorough and detailed analysis. This is incompatible with the logical and rigorous way of thinking of legislative language. Influenced by the historical background, one of the basic guidelines of China’s legislative work is that “crudeness is preferable to elaboration”, which has caused a large number of non-standard expressions in the existing legislation. For example, Article 79 of the General Principles of the Civil Law provides that “buried or hidden objects whose owners are unknown shall belong to the State. The receiving unit shall give praise or material rewards to the unit or individual turned in.” In this sentence, “the unit or individual turned in” does not make sense, as they are the performers rather than the bearer of the action. So it should be changed into “the unit or individual turning in the objects”. For example, Article 147 of the Criminal Law provides that “the production of fake pesticides, fake veterinary drugs and fake fertilizers, the sale of pesticides, veterinary drugs, fertilizers and seeds which are known to be fake or have lost their effectiveness in use, or the passing off of substandard pesticides, veterinary drugs, fertilizers and seeds as qualified ones by the producer or seller…” The above article includes no superordinate concepts and just enumerates specific conditions. In this way, in accordance with the principle of no crime or punishment without express provision in law, only the enumerated acts can be convicted and punished, while other similar behaviors will exploit the loopholes in the law. The process of translating legislative purposes into legal norms is likewise subject to a variety of objective sociocultural factors. Language and writing are the material shell of thought, through which legal norms are expressed. However, as the material carrier and expression tool of human thought, language and writing sometimes fail to fully express the rich thought and feeling. In other words, language, as a symbolic system, has its own limits of expression. Heidegger said that the existence of the world is inexpressible, and language can never express the world as it is (Liu et al. 1990). New analytical positivist jurist Hart has argued from the method of semantic analysis that any word has a primary, stable core meaning, namely the meaning centre of the word, and at the same time, has a relatively fuzzy peripheral meaning, namely the “open structure” of the word. In the meaning centre, there is no argument about what the word refers to. For example, it is believed with certainty that “car”, “tram”, “big truck” are under the meaning coverage of the word “vehicle”. However, when there is an “open structure”, the meaning, content or scope of the language will be argued. For example, it is difficult to determine whether a “bicycle” or a “skateboard with wheels” is a “vehicle”. Legal texts are made up of words, and the “signifer” and “signified” of language is often inconsistent. There are mismatches between the two, and sometimes they are almost disconnected, making it difficult to achieve uniformity. In addition, the use of legislative language also has to follow a fixed formula and expression, which puts a great limitation on the applicable vocabulary. Therefore, we must use limited legal language to carry and convey unlimited legal

9.3 Western Explorations on Eliminating the Negative Effects of Fuzziness …

153

information, and if the fuzzy words are not used properly, it will definitely cause the non-standardization of the legislative language.

9.3 Western Explorations on Eliminating the Negative Effects of Fuzziness of Legal Language Different perceptions of fuzziness have led to different theories of legal language reasoning. From the different accounts of the fuzziness of legal language by Western jurists Hart, Kaufmann and Dworkin, we can inquire into their approaches to the problem of legal language fuzziness. Austrian philosopher Wittgenstein argued that truth seemed to be “the inviolable and final thought” in his early work Tractatus Logico-Philosophicus. He believed that language was clear, that philosophy was descriptive and was a purely use of descriptive words, and that all interpretation had to be discarded. If one understands the philosophy of semantic analysis in this way, semantic analysis is simply an attempt to clarify the use of words in different contexts. This idea was quite influential on the pure jurisprudence of the Austrian jurist Kelsen. “Pure jurisprudence is the legal positivism of prescriptivism or normative logicism, exploring the reality, that is, ‘pure’ law is the reality, and aiming to analyse positive law structurally, rather than explaining its conditions psychologically or economically, or evaluating its purposes morally” (Kelsen 1945). In his later years Wittgenstein recognized the serious errors in his early doctrine. These errors made him abandon the idea of giving a scientific and precise explanation of language. In his late work Philosophical Investigation, he declared that “the meaning of a word is its use in language” (Coleman and Shapiro 2002). Wittgenstein uses an example of the concept of game to describe the ambiguity of language: what exactly can be considered game and what is not? Is there any scope or limit of this definition? No. And we can only take out one word under its coverage. However, this doesn’t cause us any trouble when use the word ‘game’. Using this example, Wittgenstein illustrate the meaning of ‘ambiguity’ and ‘family resemblance’, which are interrelated. He also gives a definition of fuzziness: If it is unclear whether a word is applicable in a situation, even if we know its meaning and the specific facts of the situation, the word is a fuzzy word. For example, we may know a person’s age, but we are still not quite sure whether it is appropriate to call him or her a child. The word game is ambiguous, in part because activities are more or less like games in a variety of ways—whether these activities are games is related to many factors, just as whether a person is a child is related to many factors (Coleman and Shapiro 2002). Wittgenstein’s understanding of the ambiguity of language in his later years directly influenced Hart’s jurisprudence. When Hart was appointed professor of jurisprudence at Oxford University in 1953, he delivered a speech titled The Definition and Theory of Jurisprudence. In this speech, Hart emphasized that semantic

154

9 Thoughts on Standardization of Chinese Legislative Language …

analytic philosophy should be introduced into legal research in order to improve the research methods of jurisprudence and solve the problems of jurisprudence. Hart’s inaugural speech marked the formal entry of semantic analytic philosophy into the field of jurisprudence and became the methodology of positivism jurisprudence. According to Hart, fuzziness means that in some cases the applicability of the word is clear, which Hart calls the “core part”, while in other cases it is unclear, which Hart calls the “peripheral part” (Endicott 1996). This metaphor is not easy to understand, so he adopts the term ‘open structure’ (also translated by some scholars as ‘vacant structure’), which we can view as a terms invented by Hart for fuzziness. Hart points to the fuzziness of law to support his view of the law as a system of rules, to cushion the skeptic view that rules do not always determine outcomes (Endicott 1996). The idea of ‘open structure’ is Hart’s most significant contribution to legal theory, at least in terms of understanding the importance of language in jurisprudence. Hart argues that the law provides a framework of guidance for a range of acts, but that there are still many gaps. Hart further argues that legal words and concepts have no definite, set-in-stone meaning, instead, they have a variety of meanings depending on the context, conditions and manner in which they are used. The meaning of these words and concepts can only be determined once the circumstances and specific conditions under which they are used have been clarified. The meaning of these words and concepts can only be determined once the context and the specific conditions under which they are used have been clarified. In his book Semantics, the British scholar Geoffrey Leech points out that there are seven types of meaning: conceptual meaning, connotative meaning, social meaning, affective meaning, reflected meaning, collocative meaning and thematic meaning. We know that the meaning of language changes. What is generally accepted as the meaning of a word at one time in history can disappear or change at another time. For example, what exactly does the word ‘offspring’ mean in inheritance law? Perhaps 200 years ago, in many societies it was understood as only legitimate children, excluding illegitimate children. While, 200 years later, the understanding of the word has changed to include not only illegitimate children, but also adopted children. This change was not caused by a change in language, but by people’s broader understanding of the word “offspring”. Linguistic theory also tells us that words do not only have diachronic changes, but also synchronic changes. If different historical periods are understood as different social contexts, then people in the same society may sometimes have different understandings of the same word, depending on their occupation, so that there may be several ‘parallel meanings’ of a word. Context refers to the environment in which language is used. In Dictionary of Semiotics Martin & Ringham defined context as follows: The term context designates any text that precedes or accompanies any specific signifying unit, and on which its meaning depends. As early as the 1920s, anthropophilist Malinowski pointed out that “linguistic environment is essential for understanding the language” (Saeed 1997). By the late 1960s, with the rise and development of sociolinguistics and pragmatics, foreign linguists had made great progress in the study of context. Following Firth, Doffmen, Hymes, Halliday, Lyons and other linguists have elaborated on context

9.3 Western Explorations on Eliminating the Negative Effects of Fuzziness …

155

from various perspectives. Tracing the research of these scholars, we can find that the approach to contextual analysis has moved from linguistic context-co-text, through binary contexts-linguistic and non-linguistic contexts, and ternary contexts-linguistic context, physical context and shared knowledge, to polynary contexts-world knowledge, collective knowledge, specific knowledge, participants, levels of formality and media (Hu 2002). People will put a word or a sentence in a text to understand its meaning. Brown and Yule (1983) called it “co-text” (Brown and Yule 1983), which is translated as “上 下文” in Chinese. Co-text can be divided into two types, intra-sentence context and inter-sentence context. Intra-sentence context refers to the context within a sentence formed by the combination of different elements of the sentence. Some words have different meanings in different collocation, and once the usual collocation and positions of the words are changed or disturbed, the meaning will deviate from or even be completely opposite to their basic or common meaning. Inter-sentence context refers to the context formed between by a sentence together with other sentences. It has been found that solely relying on linguistic context is sometimes not sufficient to fully understand the meaning of a discourse, since many contextual cues do not exist inside the discourse, but outside it, i.e. the situation in which the communicative parties use the language. Such a view that context includes both linguistic and nonlinguistic factors, especially situational factors, is called the dualization of contextual features. Saeed (1997) further divides contextual knowledge into three aspects: What can be estimated from the physical context; what can be found from what has been said; (3) what can be found from background or shared knowledge (Saeed 1997). Since contextual features can be divided into two and further into three, at the stage of systematic description of contextual features one necessarily enters a period of pluralism in contextual description. Lyons has proposed six types of contextual knowledge, namely role and status, spatial and temporal orientation, degree of formality, media, appropriate subject and appropriate register (Hu 2002). Today there is a further division of contexts into narrow and broad contexts. Narrow contexts deal with the linguistic elements of the communicative process, while broad contexts are a catch-all for non-linguistic elements including all aspects other than language. Context is present in all forms of inter-linguistic communication activities; whenever there is linguistic communication, a specific context is naturally formed. In turn, linguistic communication activities take place in certain contexts and are influenced by the contexts. Context can be the linguistic context, i.e. a word, a phrase, a longer discourse, or even the linguistic content before and after the discourse, or it can be the non-linguistic context, i.e. the social, cultural and physical environment in which the language is used. In short, the context is made up of a series of objective and subjective factors that are closely related to the communication of speech. According to Hart, legal language and popular language are two intersecting sets. Where legal and popular languages share a common part, the boundaries between them are in a constant state of flux, moving towards each other, resulting in new legal words that can reflect technological developments, progress and other changes in society. Therefore, Hart believes that in various legal systems, a large number

156

9 Thoughts on Standardization of Chinese Legislative Language …

of important areas are open and need to be determined by the explicit or careful discretion of courts or officials, including firstly making fuzzy standards definite, making the uncertainty of statutory law clear, or developing and limiting rules using authoritative precedents” (Hart 1996). Legal interpretation is a dynamic process of legal language from fuzziness to concreteness, articulateness and systematization. It is the primary means to expand the semantic meaning of legal language and determine the new boundary of concepts. At the same time, it is also a powerful tool to overcome the drawbacks of fuzzy language. According to linguistic theory, context can be either broad or narrow. In a narrow sense, context interpretation can be a systematic interpretation method, that is, a legal text must be understood and explained as a whole, but cannot be understood in a dismembered manner. Its main function is to explore the normative meaning of legal provisions based on their relevance in the legal system. For example, in Chapter 5, Section 1 of the General Principles of the Civil Law, which deals with the ownership of property and property rights related thereto, the term “property rights related to the ownership of property” is too broad and, according to its meaning, creditor’s rights should also be included. However, a separate section of the chapter is devoted to creditor’s rights, so it is excluded by the legislative intent (Liang 2000). Another example is that although the US Constitution has no explicit textual provisions on the separation of powers, US scholars argue that the separation of powers is considered self-evident in terms of the structure of the US Constitution, as Articles I, II and III of the Constitution set out the powers of Congress, the President and the courts respectively. And the First Amendment to the United States Federal Constitution stipulates: “Congress shall make no law… abridging the freedom of speech, or of the press…” If we stress the word “Congress”, it seems to imply that the “Congress” cannot, while other departments can make laws abridging the freedom of speech. Such understanding is, of course, absurd, because, in the context of the Constitution, since only Congress can make laws, the orders of executive branches are subordinate and cannot contradict the laws of the country or the Constitution. And the judicial branch can only enforce the law, having no rights to make law. Therefore, in conclusion, no branch can make laws that restrict freedom of speech. Contextual interpretation in a narrow sense has its limitations. The legal system only represents the external form of the law, so interpreting the context in a narrow sense tends to overly adhere to the form and ignore the substantive intention of the law, which may result in the rigidity of the law, or even deviating from the intention of the law. Therefore, narrow contextual interpretation is only one of the methods and should not be overemphasized. Contextual interpretation in a broad sense includes things beyond the text to be interpreted, which includes elements of other texts and readers, and can even be expanded indefinitely, right up to Gadamer’s philosophical hermeneutics of ontology. Ricoeur proposes two contexts, the one constituted by the text itself and the other by the interpreter in the process of interpretation together with the legal text. It is these contexts that give meaning to words. Since Ricoeur (and other scholars) emphasize that the interpreter participates in the forming of the legal context, this in effect allows the interpreter to bring many elements into the interpretation. In the administration of justice, for example, knowledge of sociology,

9.3 Western Explorations on Eliminating the Negative Effects of Fuzziness …

157

economics and politics, as well as factors such as public policy, discoveries in natural sciences, predictions of the consequences of judgments, considerations about the legal system itself, general principles of the rule of law, principles of equity, and so on, can be brought into interpretation (Su 1997). One of the most common methods of broad contextual interpretation is legalmeaning interpretation (also known as purpose interpretation), which refers to the search for the value judgments made by the legislator in enacting the law and the purpose he intended to achieve, in order to infer the legislator’s intention. According to Yellin, in order to interpret the law, it is necessary to understand what purpose the law is intended to achieve, and from this as the starting point to memorize the interpretation, to get its gist. Teleological interpretation is the supreme criterion for legal interpretation (Liang 2000). For example, the United States Federal Constitution states that “the President shall be commander in chief of the Army and Navy of the United States, …” If taken only literally, it would be understood to mean that the President of the United States is only the commander in chief of the Army and Navy, but not the Air Force and other armed forces. But today, all Americans understand the clause to mean that the President is the Commander in Chief of the Army, Navy, Air Force, and other armed forces. What’s the reason for this? Considering the original intent of the law and the purpose of the legislation, we know that the founders of the U.S. Constitution created the clause to unify the military leadership of the U.S. The underlying reason for the fuzzy expression is that people at the time could not imagine Air Force (Dong 2004). The incident of Wang Hai’s “deliberately buying fake products” has been noisily raised in our country. Many people think Wang Hai is a “consumer” under the Law on the Protection of Consumer Rights and Interests, while many others think he is not in the strict sense. It seems that the argument here is about the definition of “consumer” which is not clear enough, but the question here is not “whether he is a consumer”, but “whether he should be a consumer”. For example, in order to reflect humanitarian spirit, the criminal law of many countries provide that “The death penalty shall not be imposed on women who are pregnant at the time of trial.” “Women who are pregnant” refers to the everyday used expression “pregnant women (孕妇)” which is not a fuzzy word and has a clear “reference”, but when it becomes a legal term, its original scope is narrowed and gets legal connotation, so its reference should be clear and unambiguous. However, the very nature of things is so varied that the phrase itself does not directly show whether it can accommodate a woman who has had an “abortion” and therefore becomes uncertain. While in everyday life, differences of opinion are generally not a big deal, in judicial practice they are not. Because it is a matter of conviction and sentencing, any deviation in understanding can lead to legal bias. From the point of view of legalmeaning interpretation, we know that this provision of the criminal law is a special protection for women, which reflects the “compassionate” side of the law. The term “pregnant woman” should therefore be understood to include both women who are still pregnant during the proceedings and women who have had an “abortion” in the process. And whether the “abortion” was carried out at the intention of the judicial authorities or the voluntary decision of the defendant, or whether it was governed by the national family planning policy or a natural accident of the defendant, as long as

158

9 Thoughts on Standardization of Chinese Legislative Language …

it happened “at the time of the trial”, the defendant should be treated as a “pregnant woman” (Liu 1999). Wittgenstein’s understanding of languistic fuzziness in his later period influenced not only Hart in common law system, but also Kaufmann in civil law system. According to Kaufman, “it is impossible to discuss and state fuzziness as precisely as mathematics” (Kaufmann 2002). And for Kaufmann, ambiguity is described in terms of the “two dimensions of language”. “The first dimension, which seems to be horizontal, is rational; the other dimension seems to be vertical, is intentionalmetaphorical” (Kaufmann 2002). The first dimension, the horizontal one, concerns the form of language-logical clarity. In this dimension, one is concerned with the form and structure of language as it is clear. And in the second dimension, on the other hand, there is linguistic fuzziness. In order to understand the “intentional-metaphorical” meaning of legal language, which is not readily apparent from the text, Kaufmann argues from a hermeneutic perspective that “legal discovery is actually manifested as a complex structure of interaction. Such a structure includes creative, dialectical, and perhaps also motivational elements, and in no case is there only an element of formal logic; judges never draw their decisions ‘merely on the basis of the law’, but always form their judgements with a definite preconception, i.e. a preconception determined by tradition and context” (Kaufmann 1999). In this reasoning, the primary duty of the judge is the discovery of the law, and the weaving of legal loopholes by judges in practice is the highest expression of judicial art. In Kaufmann’s view, the resolution of legislative language fuzziness relies on the wisdom of judges, i.e. judicial interpretation fill the value vacuum caused by legislative language fuzziness. This undoubtedly places higher demands on judges’ professionalism and ethical qualities. Dworkin also discusses the fuzziness in legal language. Dworkin argues that “the ‘normal usage of everyday language’ approach of Hart’s new analytic jurisprudence cannot explain certain important controversies in officials’ practice because they have nothing to do with problems of linguistic usage” (Liu 1998). Dworkin divides law into “explicit law” and “implicit law”, and only the fuzziness and controversies arising from implicit law are of a “theoretical controversy” nature. The most important feature of “implicit law” is that its content must be derived by reasoning, for its specific content depends on the reasoning of specific principles, policies, doctrines and political and moral concepts in general. Moreover, this reasoning usually takes place in the practice of law. Dworkin suggests that “In any cases, whether there is a definitive answer, is not an issue of language, but of substance” (Coleman and Shapiro 2002). Thus, he uses an intrinsic, interpretive view to support the problem of fuzziness in the choices made by judges and thus provide a basis for the legal system. Hart’s secondary rules were proposed in response to the shortcomings of the primary rules including the fuzziness of the language, and thus it can be said that the secondary rules are the rules of rules. “The rule of recognition exists only for courts, officials and private individuals, on the basis of certain criteria, affirming the law as a complex but often coordinated practice. Its existence is a matter of fact” (Hart 1996). From the discourses of famous Western jurists, we know that fuzziness is also a fundamental property of legal (legislative) language and that fuzzy expressions play

9.3 Western Explorations on Eliminating the Negative Effects of Fuzziness …

159

an irreplaceable role in legal activities. Of course, while emphasizing their indispensable role, we must recognize that, just as precise words and expressions are not universally applicable, so are fuzzy words and expressions, so we should pay attention to the degree of fuzziness when using the words. The degree of fuzziness is the range (a, b) of the core message that the fuzzy words are intended to convey. Here “a” is the lower limit and “b” is the upper limit. If the fuzziness of the word goes beyond this range, it is said to have gone out of the degree of fuzziness and becomes irregular legal language. For example, in many Chinese legal documents dealing with rape cases, the Chinese term “奸污” appears very frequently. It actually goes beyond the range of fuzziness and thus can easily bring troubles to the definition, conviction, and sentencing of the crime, for the term “奸污” actually includes both “rape” and “seduction”, which are two totally different concepts in nature, and there are fundamental differences in the law regarding the definition, conviction and sentencing of the two. For another example, article 294 of China’s Criminal Law (1997) provides that: “Anyone who organizes, leads and actively participates in an organization of a triad nature which, by violence, threats or other means, carries out illegal and criminal activities in an organized manner, seeking hegemony over one side, doing evil and committing crimes, oppressing or harming the masses, and seriously disrupting the economic and social order shall be punished…” In this article “by violence…disrupting the economic and social order” is defining text of the organization of triad nature, but some words are too fuzzy and difficult to grasp in implementation. For example, the phrase “doing evil and committing crimes” can easily lead to misunderstanding and misapplication in practice (Hao and Shi 1998). In addition, inappropriate placement of quantifiers may also cause semantics to go beyond the degree of fuzziness allowed by legal language, so as to undermine the seriousness of legal language. For example, the sentence “the suspect was reeducated through labour because of hooliganism for two times” can be interpreted in two ways. One is “the suspect was reeducated through labour for two times because of hooliganism”, and the other is “the suspect was reeducated through labour because of his two acts of hooliganism.” In a word, fuzzy words in legislative language must be used in moderation. When the fuzziness of a word is within the allowed range, it is a fuzzy word permitted or advocated by legal language; when the fuzziness of a word exceeds the allowed range, it is an irregular expression that is not permitted by the legal language and must be discarded. For another example, the discussion draft of the Criminal Law once stipulated: “… (3) Robbery of ships, air crafts, vehicles …” The term “vehicle” here is a fuzzy term with a wide scope, as trams, cars, trains, bicycles and crates can all be “vehicles”, but this crime belongs to the category of crimes endangering public security, and it is obvious that the result of robbing bicycles and crates does not reach a degree of endangering public security. Therefore, using this fuzzy term “vehicle” here is inappropriate, so in the final version, the article was changed into “… Robbery of a ship, aircraft, train, tram or car…” This amendment clarifies that the term “vehicle” refers specifically to “train”, “tram” and “car”, narrowing the scope of vehicles

160

9 Thoughts on Standardization of Chinese Legislative Language …

and making the concept more specific and precise. As can be seen from the above examples, there are strict limits to the use of fuzzy words in the law. When the nature of something needs to be defined, it must be determined strictly with precise terms, both the connotation and the extension must be explicit, otherwise the whole matter is in danger of being overturned. The volume of fuzzy words in legislative language is very large, and the forms of expression are also complicated. If they are not used properly, they are often confused with “vagueness”, leading to the non-standardization of legislative language. Charrow et al. has made it clear, “Ambiguity can have a valid place in legal writing. Legislation is often designed to be ambiguous so that it will be flexible enough to cover unforeseen circumstances… However, using intentional ambiguity takes a great deal of skill and care: inappropriate or unsophisticated use can backfire (Charrow 1986). There is a connection between “fuzziness” and “vagueness”, but there is a fundamental difference between the two. “Fuzziness is an inherent property of language, which exists objectively in language and belongs to the category of language. The appropriate use of fuzzy language can create a fuzzy language style, which is a normal result of language usage and belongs to the category of rhetoric. However, “Vagueness” is not an intrinsic property of language, nor does it exist objectively in language. It is also a result of language usage and belongs to the category of rhetoric, but it is a result of abnormal or ambiguous usage of language and is a linguistic phenomenon that rhetoric tries to avoid. In short, “fuzziness” has now become a linguistic term and should no longer be used in the same way as “vagueness” and “ambiguity”.

9.4 Standardization of Chinese Legislative Language 9.4.1 Current Situation of Chinese Legislative Language Development China is a country with large population and a huge legislative system. Over the past 30 years of reform and opening up, Chinese People’s Congresses and governments at all levels have drawn up ambitious legislative programs and implemented them effectively, gaining remarkable achievements in legislative work. A socialist legal system with Chinese characteristics has been formed. However, the rapid advancement of the ambitious programme led to an excessive pursuit of speed, which has caused a widespread problem of linguistic irregularities in China’s legislative texts (especially local legislative texts). According to the research, there are 138 articles in the Constitution of the People’s Republie of China (1982), which includes 140 non-standard language expressions. After two revisions, there are still more than 50 points need further deliberations; According to the joint research of some famous linguists and constitutional scientist

9.4 Standardization of Chinese Legislative Language

161

such as Lu Jianming, Wang Renbo, at least 23 of these expressions are distinctly nonstandard and need to be revised. According to the “Tenth Five-Year Plan” research group of the State Language Commission chaired by Xie Ying, there are more than 30 serious linguistic problems in the Criminal Law of the People’s Republie of China. And the Property Law of the People’s Republie of China (Draft), published in 2005, includes more than 100 linguistic problems deserving consideration according to the study of the “Tenth Five-Year Plan” research group of the State Language Commission chaired by Wang Jie together with civil law Professor Xu Guodong (Song 2006). At the same time, more serious problems are existing in China’s judicial interpretation and legislative translation, and some articles are even explained into completely opposite meanings. On May 17th and 18th, 2009, the first National Academic Conference on the Standardization of Legal Language was held in Beijing College of Politics and Law. The conference reached the following conclusions: the task of standardizing the legal language in China is of great importance, urgency and enormity. To build a socialist country under the rule of law led by the Communist Party of China, the political ideas of the Party and the will of the people must be transformed into the form of law through legislation. But this “transformation” must adopt standard legal language rather than simply move the expression in political documents into legal provisions, which may cause new non-standard legal expressions, resulting in the vagueness of law. Therefore, the “transformation” or “translation” work during the legislating process is very important, which relates to the transformation of the party’s ruling way and the improvement of the party’s ruling capability, and it also reflects the maturity of a country ruled by law. According to Li Fei, deputy director of the Legislative Affairs Committee of the Standing Committee of the National People’s Congress, several relationships need to be dealt with in the standardization of legislative language: firstly, the relationship between the specialization of legal language and the popularization of legal expression; secondly, the relationship between the specificity of legislative norms and grammatical normality of legal language; thirdly, the relationship between the logic of legal language and the structure of legal content; and fourthly, the relationship between the style of legal language and regional characteristics. Zhang Qiong, deputy director of the Legislative Affairs Office of the State Council at that time, discussed the expression and style of legal language. According to him, there are five general ways of expression: narration, explanation, argument, description and lyricism. Laws and regulations mainly play the role of stipulating what we should do, how these things should be done, what is prohibited and what kind of punishment should be given for violating the stipulated responsibilities and obligations. Different from literary and artistic language, legal language does not need to emphasize on the aesthetic and emotional effects. Therefore, narration, explanation and argument are the three major ways of expression for legal language, and in legislative language, narration and explanation are mainly adopted. Zhang Qiong believes that accuracy is the soul and life of legislative language, and no vagueness and ambiguity should have a place in legislative language. Therefore, in legislative language structure, accuracy is always playing a leading role. Because of the requirement of

162

9 Thoughts on Standardization of Chinese Legislative Language …

accuracy, legislative language has also developed, over a long period of time, stylistic features such as rigor, dignity, conciseness and simplicity in the service of its accuracy. Of course, legislative language also has a relative independence, which refers to its unique temperament, i.e. it contains the common features of legal language, but owns special characteristics that distinguish it from legal language in general. Compared to other types of language, it seems to have a distinctive temperament, which, once formed, is highly stable, less susceptible to the environment, and less likely to converge with the influencer. There are two main and most common types of materials (words) used in legislative language: legal-specific words and ordinary words. In the legislation of some special fields, terminologies are always used. Legal-specific words have specific meanings and specific scopes of application, and thus are most “legal” in legislative language. However, they cannot constitute legal texts independently, but need to cooperate with other common words and terminologies to complete the legislative task. Therefore, during the standardization of legislative language, the standardized use of common words and terminologies should not be overlooked. In conclusion, firstly, legislative language should conform to the expression rules of the national common language; Secondly, on this basis, in order to satisfy the requirements of legislative language, such as the accuracy requirement, legislative language should also conform to its own special expression rules. Professor Li Yuming, deputy director of the State Language Commission, has pointed out the problems existing in translating Chinese legal language into ethnic minority languages. For example, some ethnic minorities have mistakenly translated the “property law” into “law of things”. In addition, with the deepening of reform and opening up and the advancement of global economic integration, the standardization of legal language in mainland China should make reference to the legal language of Hong Kong and Macao. And we should also pay attention to the comparison with the legal language of Taiwan, and strengthen the practice of legal translation, etc.

9.4.2 Suggestions on Standardization of Chinese Legislative Language and Its Translation The disadvantages of the non-standardization of legislative language are manifold. Liu Dasheng (2001) believes that the major disadvantages are manifested in the following aspects: increasing legislative difficulties; making legislative intent vague; affecting the implementation of laws; conniving at illegal acts; impacting linguistic science; inducing bad consciousness… (Liu 2001). We believe that the standardization of legislative language belongs to the realm of legislative technology. The level of a country’s legislative technology is directly related to the implementation of the law. As the carrier of the law, the legislative language is an important expression of the level of legislative technology. In China’s

9.4 Standardization of Chinese Legislative Language

163

Criminal Code, there are repetitive provisions, self-referential provisions and provisions with poor logic and grammatical errors. Most of these problems are related to the fuzziness of the legislative language, which directly affects the accurate and effective implementation of the law. Therefore, it is necessary to improve the legislative technology in terms of legislative language. Firstly, using legal terms in a standard way. Only in this way can the legislative intent and purpose be accurately expressed and the law’s guiding role be correctly played. A prerequisite for the standardized use of legal terms is the creation of a corpus of standardized legislative language. A legislative language corpus is a collection of linguistic material that expresses the meaning of the law. A legislative language corpus is a database of legal language placed on the basis of certain rules according to different regions. In our opinion, this database can be divided into four different subcorpora: language corpus for civil law, language corpus for criminal law, language corpus for administrative law and language corpus for international law. The language corpus for civil law contains civil law, civil procedure law, economic law and commercial law; the language corpus for criminal law contains criminal law and criminal procedure law; the language corpus for administrative law contains administrative law, administrative procedure law and the Constitution; and the language corpus for international law contains public international law, private international law and international economic law. Each sub-corpus can be independently codified, becoming a separate language corpus for the specific legal sector when separated, or a general legislative language corpus when combined. Each sub-corpus is made up of three smaller sub-corpora: positive corpus, negative corpus and zero corpus. The positive corpus (standard language, “qualified products”) contains legal language that has been validated as standard. The negative corpus (non-standard and defective language, “rejects and inferior-quality products”) contains legal language that has been identified as defective and containing mistakes. “Defective language” refers to language that has “minor flaws” in its expression and whose non-standardization is self-evident. The zero corpus (languages to be observed and debated, “products to be tested”) contains legal language whose correctness or incorrectness is still in dispute, and thus it cannot yet be determined to be standard or non-standard. It is difficult to determine whether the language in this corpus is standard in its expression, and they may or may not be standard language. When creating a smaller sub-corpus, the basic kernel of the legislative language should be taken as the starting point, i.e. taking words rather than phrases as the starting point for editing, e.g. taking “crime” rather than “commit a crime” as the editing unit. Secondly, sticking to the principle of series connection. For example, when “crime” is used as the starting point, the following are in order: “commit a crime”, “homicide”, “commit…”, and so on, so that they are edited in the same block in order from small to large, to form a linguistic system. The system is titled according to the kernel word, such as the “language family of crime”. At the same time, applying the principle of association, whereby the languages associated with the kernel word are grouped together in adjacent sections and ordered in descending order. For example, the “language family of sin” is a close neighbor of the “language family of crime”. Finally, applying the principle of correspondence,

164

9 Thoughts on Standardization of Chinese Legislative Language …

corresponding the languages in the positive, negative and zero corpus, so that whenever a language in the positive corpus is searched, the corresponding language in the other two corpora appears at the same time for comparison purposes. In addition, the relationship between the smaller sub-corpus and the sub-corpus is similar to that between a branch and the head office, and although each smaller sub-corpus is a relatively independent editorial whole, it is not a “social” whole that exists independently, so it cannot be published separately. We believe that there are also two principles to be adhered to in terms of interpretation when building a smaller sub-corpus: firstly, the principle of etymology, which includes two aspects: starting to sort out the legal meaning of the word with its original meaning, so that the user can really grasp the meaning and use it correctly; if a phrase or sentence has no original meaning, sorting out from its provenance to its current meaning. Secondly, the principle of universality, which uses the common language of society instead of specialist or industrial language such as jargon to explain the meaning. As the common language of society is constantly evolving and changing, the content of the legislative language base will need to be removed, updated and added to base on user feedback and updates. The materials of the legislative language corpus should be drawn, firstly, in a hierarchy within legal language: first, standard legal text; second, judicial documents; third, law enforcement documents; fourth, legal literature; and fifth, juristal works. Material that is not available at the previous level may be selected at the next level, i.e. the principle of superiority over inferiority. For example, if the material is not available in the first level of “standard legal text”, it can be selected in the second level of “judicial documents”. Material in the same level can then be selected in accordance with the principle of higher to lower. For example, the first level of “standard legal text” can be divided into “constitution”, “laws”, “administrative regulations”, “judicial interpretations” and “departmental regulations”. Materials that are available in the highest level of the constitution are not selected in the other levels. For example, the fifth level, “juristal works”, can be divided into “textbooks complied by the state”, “textbooks compiled by colleges and universities”, “expert treatises”, “scholarly treatises” and “other treatises”. Secondly, it should be drawn from law-related parts of the common language; finally, it should be drawn from foreign legal languages. This kind of sampling is comprehensive and balanced. Therefore, based on this criterion, the scope of material-drawing of the legislative language corpus in China is as follows: laws enacted by the National People’s Congress; international treaties signed by China; administrative regulations enacted by the State Council; administrative regulations of central ministries and commissions; judicial interpretations and interpretations of “judicial nature” by local courts at all levels; local regulations; judicial documents; law enforcement documents; various transcripts that have produced legal significance; contracts in force. In order to distinguish strictly from non-legal language, the following two points must be noted: firstly, spoken language must still have legal significance after transcription, i.e. its legal role must be recognized by the relevant authorities in order to be collected as a corpus. Secondly, generally binding laws, regulations, departmental rules and judicial interpretations that have been repealed or have lapsed can, in our opinion, still be included as corpus.

9.4 Standardization of Chinese Legislative Language

165

The Legislative Language corpus is used in the following ways: (1) When anyone encounters an obstacle to the use of a legislative language, they can enter the language into the computer and click on the Legislative Language corpus to obtain comprehensive information on the use of the language, not only in the positive bank, but also in the negative and zero banks. By analyzing and judging this information, the obstacle can be removed and the language can be used correctly. (2) Studying the parallel legal language corpus in foreign languages on the basis of Chinese legal language corpus, with English-Chinese parallel corpus at first, so as to provide the basis for the study and standardization of legislative language corpus. (3) Accurate translation of legislative language. The current state of accurate translation between Chinese and foreign legal languages is not promising, and the operation of a legislative language corpus will greatly improve the accuracy of translation. Secondly, absorbing some words in foreign legislative language to meet the needs of the modernization process of the rule of law in China. As part of China’s modern law is “imported”, “transferred” and “imitated” from Western countries, the deficiencies of the Chinese language make it “incompetent” in expressing this part of the law, thus leading to various linguistic shortcomings in the laws enacted. By incorporating some foreign vocabularies to enrich the legislative language, we can make up for the shortcomings of the Chinese language and make the legal provisions clear and specific. For example, Article 14 of the Contract Law of the People’s Republic of China stipulates the meaning of “offer” as follows: “An offer is an expression of intent to conclude a contract with another person, and such expression of intent shall comply with the following provisions: (a) the content is specific and definite; (b) it indicates that the offeror is bound by the offeror’s promise.” In English legislative texts, usually there are “article”, “section”, “a”, “i”, etc. below “chapter”. And the contents transit from descriptive to prescriptive elements, from enacting orders and/or preambles to specific provisions, and are structured in a hierarchical way, from macro to micro perspective, from general/general rules to provisions, from important to less important provisions. Thirdly, handling properly the relationship between specialization and popularization of legal terminology. The process of legal standardization involves how to deal with the relationship between the popularization and technicalization of legal terms. The popularization of legal terms refers to the fact that in the process of legislation, the legal terms named and chosen should be easy to understand. The legal terms used in Chinese legislation are easy to understand, such as “complaint”, “appeal”, “public prosecution”, “fraud” and “robbery” etc. In the study of legal language, Chinese scholars also places great emphasis on the popularization of legal terminology. From the perspective of legislative techniques, legal terms should be understandable and comprehensible. The popularization of legal terms reflects the characteristics of current laws in China. It facilitates the popularization of legal knowledge and the implementation of the law. If the legal terms are uncommon words and difficult to understand, it will affect people’s understanding and affect the implementation of the law. In recent years, some scholars in China have questioned the tendency of popularization of legislative language (including legal terminology). According to Li Zhenyu, “The

166

9 Thoughts on Standardization of Chinese Legislative Language …

laws of legislative language are not well demonstrated; some are so abstruse and difficult that detached from citizens’ comprehension and psychological cognitive habits, resulting in poor transmission of legal information. But there are also legal language that are too straightforward, undermining the seriousness and solemnity of the law” (Li 1998). We believe that the correct handling of legal terminology and the relationship between popularization and technicalization of legislative language is extremely important for the standardization of legislative language. Technicalization, also known as theorization, can have the following meanings: firstly, it refers to using jurisprudential conceptual terms as far as possible when expressing legal norms in legal provisions; secondly, it refers to the naming and selection of legal terms can reveal the essential characteristics of the legal things (phenomenon) and reflect the jurisprudential theory. Express the content of legal provisions in popular language and use jurisprudential conceptual terms and define them as far as possible. For example, article 92 of the General Principles of the Civil Law states that “if an improper benefit is obtained without a lawful basis and causes loss to another person, the improper benefit obtained shall be returned to the person who suffered the loss.” Obviously, in order to make the legislative language theoretical and easy to remember, the term “improper benefit” can be used followed by its definition and explanation. The legal terminology used in the legal provisions should be justified (theorization) and directly reflect the essential characteristics of the legal things (phenomenon) referred to. In addition, in cases where legal terminologies are used, it is necessary to interpret the them. There are two basic ways of interpreting legal terminology in the current legislation in China. One is to place the interpretation of a legal term in the first place where it appears, followed by the description of the legal provision, so that the interpretation is integrated with the legal provision. For example, article 22 of the Patent Law of the People’s Republic of China provides that the patent granted “shall have the features of novelty, inventiveness and practicability”. The three concepts of “novelty”, “inventiveness” and “practicability” are then explained in paragraphs 2–4 of the article respectively. Another way of interpretation is to explain all the terminologies and expressions that need a explanation in one place at the end of the legal document by means of “appendices” or “other provisions”. Some legal texts also use a combination of these two methods. Generally speaking, they are based on the above two basic ways. Fourthly, handling properly the borrowing and innovation of legal terminology in the legislative work. In the process of standardizing legislative language, there is a need to address the issue of borrowing and innovation of legal terms. “Borrowing” refers to the borrowing of foreign legal terminology, also called “absorption” by some scholars. “Innovation” means that with social development and the emerging of new legal phenomena, new legal terminology must be created to refer to and reflect them. We believe that, first of all, the purpose of borrowing and innovating legal terminology in legislative work is to gradually improve and perfect China’s socialist legal system. Therefore, when

9.4 Standardization of Chinese Legislative Language

167

borrowing foreign legal terminologies, we should consider whether they are useful to our socialist legal system, making trade-offs according to our national conditions. As far as borrowing is concerned, some legal terminologies in foreign laws, especially in civil law, maritime law, environmental protection law, marriage and family law, should be borrowed if they are useful for improving and perfecting China’s socialist legal system, such as “movable property”, “adoption” and “blood relatives” in Roman law. Secondly, the borrowing and innovation of legal terminology in the legislative work should follow the principle of gradual renewal of concept. The process of borrowing legal terminology is in essence the process of gradually improving and perfecting China’s socialist legal system as well. In the process of borrowing and innovating legal terminology, conceptual renewal is particularly important. The socalled conceptual renewal refers to the renewal of legal concepts and jurisprudential concepts. With the improvement of China’s jurisprudential theory, the legal terminology borrowed and innovated in China’s legislative work will reflect the spirit of conceptual renewal, making them more in line with China’s national conditions and social needs, more scientific and civilized. For example, in the past, people who committed crimes were often referred to as “criminals”. Article 12 of the Criminal Procedure Law (amended in 1996) provides that “No one shall be convicted of a crime without a verdict of the people’s court in accordance with the law.” A person who has committed a crime is not called a “criminal” but a “criminal suspect”. The amendment not only reflects the spirit of conceptual renewal (drawing on the scientific and rational part of the Western presumption of innocence), but also provides a judicial guarantee for the use of the principle of legality in legal proceedings. Finally, the borrowing and innovation of legal terms in the legislative work should be in line with the structure of modern Chinese language and adapt to its expression habits to facilitate people’s understanding. The Chinese word structure has its own national characteristics, with a tendency to be bi-syllabic, and the structure can be joint structure (e.g. “审理 (hear)”, which consists of two verbs in parallel, respectively meaning “review” and “justification”), attributive structure (e.g. “刑法 (criminal law)” which consists of an attribute and a central word), verb-object structure (e.g. “立案 (register)” which consists of a verb and an object), and verb-complement structure (e.g. “侦破 (detect)” which consists of a verb and a complement) and so on. Therefore, Chinese word structure has a fusion character. When borrowing foreign legal terminologies, it is important to carefully consider and choose the appropriate translation to prevent rigid copying. Matter determines consciousness, and consciousness has a counteractive effect on matter. Consciousness directs and has an enormous counteractive effect on human behavior, so right awareness can help to promote behaviors. This is why it is important to be aware of the importance of language standardization and to develop an awareness of the need to standardize language. Therefore, the awareness of language standardization should be integrated throughout the legislative drafting process and, in turn, play an important role in the work related to legislative language. In legislative work, legislative language plays a crucial role as the representation and carrier of the law, and the ability to use it accurately and skillfully is one of the

168

9 Thoughts on Standardization of Chinese Legislative Language …

decisive factors in the quality of legislation. In common law countries, the Office of Parliamentary Counsel or the Office of Legislative Counsel was established early on and serves as the main body for legislative drafting. It is characteristic that the drafting work of legislation is divided into a political process and a technical process, with the parliamentary counsel being responsible for the literal work and bills not drafted by the parliamentary counsel not being considered. In order to maintain the standardization of legal texts, the legislative bodies at all levels in these countries have laid down rules on the format of legal texts and some important terms, some in the form of special legislation, some in the form of legislative manuals, and some in a combination of both. For example, the Office of Legislative Counsel of the United States Congress has its own legislative manual, and so does the Massachusetts Legislature. In civil law countries, such as Japan, both the parliament and the executive branch also have special legislative drafting bodies which also have legislative drafting manuals to guide legislative drafters in producing uniform and standardized legal texts. The principle in France is that the drafting of laws, orders, etc. is best done by those with expertise in the subject matter covered by the law (Seidman 1992). In the 1950s and 1960s, a group of prominent scholars, represented by William Strunk, Jr. in the UK, Reed Dickerson and Richard Wydick in the US, Rudolph Flesck and others, began to study how to express legal texts in concise, normative language. The Elements of Style, co-authored by William Stoker Jr. and others, summarizes seven basic rules of idiom, ten basic rules of composition and 21 rules of style, as well as a series of rules of diction and syntax. The writings of these scholars are highly practical, with each idea and claim supported by numerous examples and accompanied by a variety of practical exercises in legislative drafting. Many law schools in the United States also offer legislative drafting classes on systematic rules of legislative drafting, including legislative language (Zhou 2009: 36). In Japan, the senior draftsman of the Japanese Cabinet Legal Affairs Bureau has written four volumes of Introductory Lectures on Legislative Techniques, as well as works such as Introduction to the Language of Acts, which discuss how to draft Japanese legislative documents, as well as the structure of legislative documents and the use of words and phrases in legislation. In conclusion, China should open legislative language courses in universities for students in linguistics majors, and attach importance to the construction of legal linguistics. At the same time, China should strengthen the research of legal language, establishing professional journals and publishing monographs and textbooks related to legal language research, and encouraging scholars to actively engage in legal language research, so as to cultivate a group of compound legislative linguistics talents proficient in both legislative science and linguistics. This is the fundamental solution to improve the legislative technology and standardize the legislative language.

9.5 Conclusion

169

9.5 Conclusion Over the past thirty years of reform and opening up, the English translation of laws and regulations has grown from scratch and has made great achievements. Take Shanghai, the pioneer of reform and opening up, as an example, the translation of local laws and regulations in Shanghai for decades is roughly divided into four stages. The first stage was the initial stage (1988–1996): The translation of local laws, regulations and standardized documents in Shanghai can be traced back to the late 1980s. In order to optimize the investment environment, the leaders of the Shanghai Municipal Party Committee and Municipal Government requested the Municipal Government Legislative Affairs Office to cooperate with the Municipal Foreign Trade and Economic Cooperation Commission to translate and publish a number of foreignrelated local laws, regulations and standardized documents to help foreign businessmen understand the laws and regulations concerning foreign affairs in Shanghai. From 1988 to 1996, Shanghai translated and published a total of four volumes of Shanghai Foreign-related Laws and Regulations, which is a collection of English translations of all foreign-related laws and regulations issued in Shanghai during these eight years. This was the first step in the translation of Shanghai’s laws and regulations. The second stage was the promotion stage (1997–2001): in 1997, Wu Bangguo, then Vice-Premier of the State Council, and Xu Kuangdi, then Mayor of Shanghai, both attached great importance to the translation of laws and regulations. They pointed out: “To build an international metropolis, it is important to enhance the transparency of local laws and regulations, and to translate Shanghai’s local laws and regulations into English for publication.” Under the direct attention of the leaders of the central and municipal governments, a special translation agency, the Translation and Examination Office of Foreign Affairs, was set up within the Shanghai Institute of Administrative Law, specifically responsible for organizing, checking and finalizing the translation of local laws and regulations, and began to translate all local laws and regulations promulgated in Shanghai every year. In the same year, the Municipal Government’s Legal Affairs Office organized the “Shanghai Symposium on the Translation of Laws and Regulations” to create conditions for further improving the quality of translation of laws and regulations. In August of the same year, the first issue of the New Regulations Monthly, a publication marking the achievements of the translation of Shanghai’s regulations, was published. The magazine, which pays attention to the quality of translation and fine printing, is an important window and front to publicize the legal system construction in Shanghai. The translation of Shanghai’s laws and regulations is now entering a phase of positive progress. The third stage is the development stage (2001–2004): In August 2001, on the eve of the APEC conference, the municipal government decided to launch the “China Shanghai” government portal website and proposed to translate the Shanghai Municipal People’s Government Gazette into English and publish the full text on the website.

170

9 Thoughts on Standardization of Chinese Legislative Language …

The fourth stage is the advancement stage (2005 to present): the Shanghai Municipal Government has uploaded all local laws, regulations and normative documents on the “China Shanghai” government portal website, and has also officially published the English version of the Shanghai Municipal People’s Government Gazette and distributed free of charge to consulates in Shanghai, foreign-funded institutions and foreign-related units to promote open government information (Chen 2008). The English translation of local laws and regulations in Jiangsu province has also made a lot of achievements and has been commended by the Legislative Affairs Office of the State Council and the provincial government for many times. Since 2005, the Office of Legislative Affairs of Jiangsu Province has been implementing The Notice of the General Office of the State Council on the Examination of the Official English Translation of Administrative Regulations, and has discussed and arranged how to further develop the translation of local regulations and government rules in the province. The English translation of local laws and regulations in Jiangsu Province is divided into three steps: preliminary translation, preliminary examination and expert examination. The drafting department of the laws and regulations is responsible for the preliminary translation, and the Provincial Legislative Affairs Office is responsible for the preliminary examination of the first draft, after which experts are invited to review the translation again, and finally the Provincial Legislative Affairs Office will conduct a comprehensive review again to determine the official translation of the laws and regulations. At present, Jiangsu Province has carried out the construction of a thesaurus in order to strengthen the practical and theoretical research of legal translation. The author was appointed as an expert for the translation and examination of local regulations by the Legislative Affairs Office of Jiangsu Provincial People’s Government and have participated in the translation and examination work of local regulations for many times. The English translation of local regulations of Jiangsu Province takes a leading position in China in terms of standardization, completeness and quality, and has been commended by the Legislative Affairs Office of the State Council for many times. Although some achievements have been made in the English translation of legislative texts in China, there are still shortcomings and difficulties: Firstly, the current situation of the review and translation team is worrying—there is a shortage of external experts and in-house full-time translators still need to be further trained. Secondly, there is an urgent need for standards to be followed in the legislative translation. Different from literary translation where a hundred flowers bloom and a hundred schools of thought contend, legal translation, in a strict sense, is the re-interpretation of the connotation of legal provisions, which should be highly consistent with the original intention of legislation. With the further development of the global translation industry, world and regional language organizations are playing an increasingly important role in translation theory and practice, the integration of translation resources, and the promotion of political, economic and cultural glocalization. The translation of laws and regulations in China is undoubtedly an important member of the translation family, and in the context of globalization its language regulations have shown new characteristics and

References

171

will pose new challenges to us. Therefore, the translation of laws and regulations in China still has a long way to go. In a word, from the perspective of legislation, whether it is the standardization of legislative language or the standardization of the translation of legislative text, we should realize that legal language is not only a symbol to record laws, but also accompanied by legal thoughts and promote each other. Without high quality legal language and excellent language competence, it is impossible to produce high quality legal thoughts, impossible to formulate high quality laws, and impossible to transmit advanced rule of law culture. In a sense, the legislative process is the operation process of legal language, and the translation of legislative texts is the process of establishing the image of a country ruled by law and transmitting the rule of law civilization. Language standardization is not only a matter of linguistic philosophy, but also a matter of legislative technology, involving the relationship between language and thinking, language and culture. Without advanced legislative techniques, excellent laws cannot be formulated. From the perspective of linguistics, China’s legislative technology is not complete, and the prominent problem at present is the use of words, which should be solved from the following aspects: firstly, the elimination of ambiguity. The connotation and extension of words should be clear and without ambiguity; secondly, the unification of words. Have a comprehensive sorting of important terms through the corpus, eliminating the phenomenon of the “same name for different terms” and the “same concept with different names” in the same law or different laws. In addition to this, the standardization of legal language requires multidisciplinary cooperation. Of course, preventing and overcoming the non-standardization of legislative language and implementing the standardization of legislative language is not a particularly difficult task. As long as society attaches sufficient importance to it, and through the establishment of special legislative working bodies, the strengthening of research on legislative techniques, the increase of language review procedures, and the vigorous training of interdisciplinary and complex talents in linguistics and jurisprudence, the goal of standardizing the legislative language will certainly be achieved.

References Brown, G., and G. Yule. 1983. Discourse analysis. Cambridge: Cambridge University Press. Charrow, R.V., and K.M. Erhardt. 1986. Clear and effective legal writing. Boston and Toronto: Little, Brown and Company. Chen, Xiaoyan. 2008. A study on language standardization in English translation of local regulations. Journal of Beijing Vocational College of Political Science and Law 4. Coleman, J., and S. Shapiro. 2002. The Oxford handbook of jurisprudence and philosophy of law. Oxford: Oxford University Press. Dong, Xiaobo. 2004. On the ambiguity and elimination of English legislative language. Foreign Languages and Their Teaching 2:60-63.

172

9 Thoughts on Standardization of Chinese Legislative Language …

Dong, Xiaobo. 2007. A legal sociological research on fuzziness in legislative languages. Journal of Henan University 2:74–79. Endicott, T. 1996. Linguistic indeterminacy. Oxford Journal of Legal Studies 16: 995. Hao, Yimin, and Qin Shi. 1998. Analysis on fuzzy words in legal language. Journal of Qiannan Normal University for Nationalities 2. Hart, H.L.A. 1996. The concept of law, trans. Zhang Wenxian, et al. Beijing: Encyclopedia of China Publishing House. Hu, Zhuanglin. 2002. Pluralism of contextual studies. Foreign Language Teaching and Research 3. Kaufmann, Arthur. 1999. Analogy and “essence of things”: On type theory, trans. Wu Congzhou. Taipei: Xuelin Cultural Enterprise Co., LTD. Kaufmann, Arthur. 2002. An introduction to contemporary legal philosophy and legal theory, trans. Zheng Yongliu. Beijing: Law Press. Kelsen, H. 1945. General theory of law and state. Cambridge: Harvard University Press. Li, Kangning. 2010. Review on the non-standardization of legislative language in civil law. Legal Science (Journal of Northwest University of Political Science and Law) 5. Li, Zhenyu. 1998. The First Exploration of Legal Linguistics, 12–13. Beijing: Law Press. Liang, Huixing. 2000. Hermeneutics of Civil Law. Beijing: China University of Political Science and Law Press. Liu, Xing. 1998. What is law? Beijing: China University of Political Science and Law Press. Liu, Suzhen. 1999. Legal language and lexical objects. Journal of Shanghai Administrative Cadre Institute of Political Science and Law 5. Liu, Dasheng. 2001. Analysis on the non-standardization of current legislative language in China. Law Science 1. Liu, Dasheng. 2009. Environmental factors of legal language non-standardization: Language virus in the periphery of law. Journal of Jiangsu Police College 4. Liu, Fangtong, et al. 1990. Modern western philosophy: The second volume. Beijing: People’s Publishing House. Pan, Qingyun. 2004. A review of Chinese forensic linguistics, 292–293. Shanghai: Chinese Dictionary Press. Saeed, L.J. 1997. Semantics. Oxford: Blackwell. Sapir, E. 1921. Language: an introduction to the study of speech, 22. New York: Harcourt, Brace and Company. Seidman, R. 1992. Legislative service manual, 253, trans. Zhao Qingpei and Yang Hua. Beijing: China University of Political Science and Law Press. Song, Beiping. 2006. Research on the standardization of Chinese legal language. Journal of Beijing College of Political Science and Law 3. Su, Li. 1997. Problems of interpretation: An inquiry into several methods of legal text interpretation. Social Sciences in China 4. Zhou, Wangsheng. 2009. Science of legislation, 36. Beijing: Law Press.