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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 Yafang Zhang
School of Foreign Languages and Cultures School of Foreign Languages and Cultures
and Institute of China’s Modernization Nanjing Normal University
of Rule of Law Nanjing, Jiangsu, China
Nanjing Normal University
Nanjing, 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
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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 underes-
timated problem that would cause significant adverse effects. By integrating different
research angles and methods of philosophy of law, sociology of law, applied linguis-
tics and legal translation, this book presents a groundbreaking approach to the non-
standardization 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
1.1 Research at Home and Abroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Objectives, Content and Significances . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.2.1 Concept and Essence of Legislative Language . . . . . . . . . . . . 8
1.2.2 An Empirical Analysis of Violation of Norms
in China’s Legislative Text Translation . . . . . . . . . . . . . . . . . . 8
1.2.3 Adverse Effects of Violation of Norms in Legislative
Text Translation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.2.4 Causes of Violation of Norms in Legislative Text
Translation and Its Countermeasures . . . . . . . . . . . . . . . . . . . . 9
1.2.5 Ways to Correct the Violation of Norms in China’s
Legislative Texts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2 An Overview of Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.1 Law and Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.1.1 Language Constructs the Meaning of Law, and Is
the Ontological World of Law . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.1.2 It Is the Mission of Legal Professionals to Pursue
the Meaning of Law Through Language . . . . . . . . . . . . . . . . . 16
2.2 Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.3 Characteristics of Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.3.1 Language Style . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.3.2 Legal Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.3.3 Lexical Classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.3.4 Semantics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3 Research on Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.1 The Linguistic Turn of Western Jurisprudence . . . . . . . . . . . . . . . . . . 27
3.2 Evolution of Legal Language Research Methods . . . . . . . . . . . . . . . . 32
3.2.1 The Rhetoric Tradition Stage . . . . . . . . . . . . . . . . . . . . . . . . . . 33

vii
viii Contents

3.2.2 The Positivism Research Stage . . . . . . . . . . . . . . . . . . . . . . . . . 33


3.2.3 The Sociological Research Stage . . . . . . . . . . . . . . . . . . . . . . . 34
3.3 Forensic Linguistics and Its Research . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.3.1 Research on Anglo-American Legal Linguistics . . . . . . . . . . 37
3.3.2 An Overview of the Research of Forensic Linguistics
in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4 Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.1 Legislation and Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.1.1 Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.1.2 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.1.3 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.2 Stylistic Features of Legislative Language . . . . . . . . . . . . . . . . . . . . . . 53
4.2.1 The Lexical Features of Legislative Language . . . . . . . . . . . . 55
4.2.2 The Syntactical Features of Legislative Language . . . . . . . . . 57
4.2.3 The Text Features of Legislative Language . . . . . . . . . . . . . . . 60
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
5 Fuzziness and Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.1 Fuzziness of Legislative Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.1.1 Fuzziness of Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
5.2 Language Types Related to the Fuzziness . . . . . . . . . . . . . . . . . . . . . . 69
5.2.1 Vagueness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
5.2.2 Ambiguity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
5.2.3 Generality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
5.2.4 Uncertainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
5.3 Features of Fuzziness in Legislative Language . . . . . . . . . . . . . . . . . . 74
5.3.1 Uncertainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
5.3.2 Relativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
5.3.3 Obscure Boundary Division . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
5.4 Classification of Fuzziness of Legislative Language . . . . . . . . . . . . . 78
5.4.1 Division Upon Context Changes . . . . . . . . . . . . . . . . . . . . . . . 78
5.4.2 Division Upon Expression Functions . . . . . . . . . . . . . . . . . . . . 79
5.4.3 Division Upon Word Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6 Reasons for the Fuzziness of Legislative Language . . . . . . . . . . . . . . . . . 87
6.1 Subjective Reason of the Legislative Subject . . . . . . . . . . . . . . . . . . . 88
6.1.1 Cognitive Limitations of Legislative Subject . . . . . . . . . . . . . 88
6.1.2 Intentional Fuzziness of Legislative Subject . . . . . . . . . . . . . . 90
6.2 Complexity of the Facts of Legal Relations . . . . . . . . . . . . . . . . . . . . . 93
6.3 Limitations of Language Expression System . . . . . . . . . . . . . . . . . . . 94
Contents ix

6.3.1 Non-Existence of One-to-One Correspondence


Between Language and the Objective World . . . . . . . . . . . . . 94
6.3.2 The Polysemy of Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
6.3.3 The Flexibility of Language Meaning . . . . . . . . . . . . . . . . . . . 97
6.4 Characteristics of Chinese Characters . . . . . . . . . . . . . . . . . . . . . . . . . 98
6.5 Influence of National Traditional Culture . . . . . . . . . . . . . . . . . . . . . . 100
6.6 Requirements of China’s Fundamental Reality . . . . . . . . . . . . . . . . . . 103
6.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
7 The Positive Function of Fuzzy Legislative Language and Its
Realization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
7.1 Positive Function of Fuzzy Legislative Language . . . . . . . . . . . . . . . . 108
7.1.1 Beneficial to Realize the Integration of Stability
and Changeability of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
7.1.2 Beneficial to Realize the Integration of Openness
and Flexibility of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
7.1.3 Beneficial to Realize the Integration of the Finiteness
of Language and the Infinity of Objective Things . . . . . . . . . 110
7.2 Value Realization of Fuzzy Legislative Language . . . . . . . . . . . . . . . 112
7.2.1 Beneficial to Realize the Universality and Adaptability
of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
7.2.2 Reserve Space for the Application and
Development of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
7.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
8 Fuzziness and Violation of Norms in Chinese Legislative
Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
8.1 Ontology of Violation of Norms in Legislative
Language in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
8.1.1 Grammatical Errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
8.1.2 Incomplete Sentence Components . . . . . . . . . . . . . . . . . . . . . . 124
8.1.3 Misuse of Function Words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
8.1.4 Semantic Ambiguity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
8.1.5 Inappropriate Language Logic . . . . . . . . . . . . . . . . . . . . . . . . . 133
8.2 Epistemology of Violation of Norms in Legislative Language
in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
8.2.1 Lag of Legislative Technology Theory Research . . . . . . . . . . 139
8.2.2 Absence of Special Legislative Drafting Body . . . . . . . . . . . . 140
8.2.3 Absence of Legislative Language Review Procedures . . . . . 140
8.2.4 Influence of Language Culture and the Weak
Consciousness of Language Norms . . . . . . . . . . . . . . . . . . . . . 141
8.3 Axiology of Violation of Norms in Legislative
Language in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
x Contents

8.3.1 Adverse Effects and Negative Consequences


of Violation of Norms in Legislative Language . . . . . . . . . . . 142
8.3.2 Possible Methods to Revise Violation
of Norms in Legislative Language
in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
8.3.3 To Make Greater Efforts to Build Up a Standard
Legislative Language Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . 146
8.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
9 Thoughts on Standardization of Chinese Legislative Language
from the Perspective of Sociology of Law . . . . . . . . . . . . . . . . . . . . . . . . . 149
9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
9.2 The Legal Sociological Reasons for Fuzziness of Legislative
Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
9.3 Western Explorations on Eliminating the Negative Effects
of Fuzziness of Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
9.4 Standardization of Chinese Legislative Language . . . . . . . . . . . . . . . 160
9.4.1 Current Situation of Chinese Legislative Language
Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
9.4.2 Suggestions on Standardization of Chinese Legislative
Language and Its Translation . . . . . . . . . . . . . . . . . . . . . . . . . . 162
9.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 Modern-
ization 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 transla-
tion, language strategy and planning, cross-cultural communication. In recent years,
he has published over 150 interdisciplinary academic papers in prominent jour-
nals 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 simultane-
ously. 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 char-
acter, “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 profes-
sion 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 1
X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language,
https://doi.org/10.1007/978-981-99-2633-6_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 ambi-
tious 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 mani-
festation 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, clas-
sification 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 cyber-
neticist, 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 corre-
sponding “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 self-
sufficiency 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 fuzzi-
ness 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 conno-
tation 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 legisla-
tive practice. Therefore, to study the standardization of legislative language from the
perspective of fuzziness theory, we must pay attention to the socio-cultural back-
ground 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 sympo-
sium 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 imple-
mented 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 inconsis-
tent, 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 Poli-
tics and Law. The conference concluded that the research on the standardization of
legal language requires the joint cooperation of the communities of legal profes-
sion, 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 adminis-
trative 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 perspec-
tive 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 offi-
cial 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 inconsis-
tency, 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 legis-
lation and harm the national image; fail to fully and accurately express the legislative
purpose and intention, resulting in difficulties for the judicial authorities to under-
stand 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 legisla-
tive 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. Funda-
mentally, it’s because of deficiency of systematic research, especially the compara-
tive 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 legisla-
tive 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 legisla-
tive 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 legisla-
tive 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 statu-
tory authority and procedures in the process of exercising administrative power. Stan-
dardized 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 interna-
tional exchanges. Along with the process of reform and opening up, especially after
joining WTO, foreign investment has increased. A lot of Chinese laws and regula-
tions 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.

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Chapter 2
An Overview of Legal Language

The study of legal language should begin with an understanding of the relation-
ship 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 defen-
dant 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 cere-
mony 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 system-
atically 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 Interna-
tional 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 13
X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language,
https://doi.org/10.1007/978-981-99-2633-6_2
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 society-
the 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 visu-
alize 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 concep-
tion 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 domi-
nate 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 interdisci-
plinary 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 chal-
lenged, 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 contex-
tualism 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 knowl-
edge; 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, administra-
tion, 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 legis-
lation, 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 non-
normative 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 commu-
nicative 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 long-
term 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.
Example: 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.
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 vocabu-
lary, 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, “hered-
ity” 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:
Example: 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
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 1-
302 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-subject-
predicate 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 supplemen-
tary 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 characteris-
tics.

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 An Overview of Legal Language

2.3.2.2 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 recog-
nition 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 legisla-
tion, 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

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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 27
X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language,
https://doi.org/10.1007/978-981-99-2633-6_3
28 3 Research on Legal Language

“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” (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 intro-
duced 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, Wittgen-
stein’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 philos-
ophy of language to analyzing legal issues. In his works such as Essays in Jurispru-
dence 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 inves-
tigated 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 struc-
ture 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 correspon-
dence 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 anal-
ysis. 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 philos-
ophy 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 method-
ology. 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 Refor-
mation, 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 under-
standing 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 inter-
preter 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 uncer-
tainty of law and the objectivity and non-objectivity of legal interpretation” (Xie
2003).
Another influential school of jurisprudence in the linguistic turn is the Euro-
pean structuralist semiotic jurisprudence, which espouses Saussure’s semiotic theory.
Semiotics, by definition, is the theory and method of studying signs. European struc-
turalist 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 differ-
ence of historical background. Semiotic jurisprudence comes into existence when
semiotic methods being applied to the law. In its most abstract sense, the character-
istics 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 tradi-
tional 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, “jurispru-
dence 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 span-
ning 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 posi-
tivism and social positivism. By the second half of the twentieth century, social
positivism was gaining acceptance, and it valued and absorbed the research achieve-
ments of linguistics in the twentieth century. For example, Glanville Williams in the
United Kingdom and Watter Probert in the United States have noticed the ambi-
guity 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. Aris-
totle 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 deter-
mines 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 repre-
sentative is David Mellinkoff, whose Legal Language is of great significance in the
history of legal language research. First, this is the first masterpiece with system-
atic, 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 Anglo-
American 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 conno-
tation 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 sociolog-
ical 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 partic-
ular 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 well-
known ones, have become an important intangible asset of enterprises. Conflicts
and infringement caused by trademark phonetic similarity have become increas-
ingly 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 pronunci-
ation requires phonetic analysis. In foreign countries, phoneticians are often involved
in trademark infringement cases. They apply the same techniques as voice recogni-
tion 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 conversa-
tion 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 contro-
versial 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 inter-
preted 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, conve-
nient, 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 Educa-
tion 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 Ques-
tions 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 anal-
ysis 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 illus-
tration, 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 standard-
ization 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 construc-
tion 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 open-
ness 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 linguis-
tics. But anyway, the research of forensic linguistics in China must be based on the
national conditions, and learn from and absorb other countries’ research achieve-
ments 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.

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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 49
X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language,
https://doi.org/10.1007/978-981-99-2633-6_4
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 inter-
sessional 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 docu-
ments 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, judi-
cial 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, legisla-
tive 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 legisla-
tive 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 special-
ized 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 stan-
dardization, 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 achieve-
ments 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 indepen-
dent 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 repre-
sented 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 spec-
ification 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 abbrevia-
tions; 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, concise-
ness, 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, expres-
sion 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 regula-
tions)”, “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 inter-
pretation 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 judi-
cial interpretation for other expressions. These arbitrary and chaotic expressions, to
a certain extent, undermine the preciseness and unity of the law.
56 4 Legislative Language

4.2.1.2 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 legisla-
tive 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 organiza-
tion 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 diffi-
culties 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 styl-
ized. 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 struc-
ture 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 interrog-
ative, exclamatory and imperative sentences. Since interrogatives indicate a ques-
tioning tone, exclamatory sentences are used to express a strong emotion, and imper-
ative 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 orga-
nized 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 differ-
ences 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 appli-
cable 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 arti-
cles 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 neces-
sary 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 princi-
ples” 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 admin-
istrative 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 cita-
tion. 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 accor-
dance 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, well-
organized, scientific and rational. Only reasonable structure and proper arrangement
of the articles can make the entire legal text clear and practical.

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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 63
X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language,
https://doi.org/10.1007/978-981-99-2633-6_5
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 veri-
fied 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 Vague-
ness 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 jurispru-
dence, 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 member-
ship” 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, vegeta-
bles, 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, proto-
type 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 simi-
larity 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 resem-
blance 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. Natu-
rally, 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 encyclo-
pedia 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 Fuzziness and Legislative Language

5.1.1.1 The Indivisibility of Time and Space Determines the Fuzziness


of Language

In nature, the boundary between time and space naturally cannot be accurately deter-
mined 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 exten-
sion 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, beau-
tiful/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 gener-
ality, 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 deroga-
tory 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 condi-
tion 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”. Fuzzi-


ness 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 character-
ized 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 middle-
aged” 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 ambi-
guity. 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. Fundamen-
tally, 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 poly-
semy, fuzziness and preciseness, concreteness and generality are all the unity of oppo-
sites. 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 uncer-
tain 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 (non-
crime) 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 diffi-
cult 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 non-
prototype 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 exten-
sion 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 absolutiza-
tion 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, legis-
lators 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 charac-
teristics 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 “syn-
chronic 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 fuzzi-
ness 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 enumer-
ation 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 Consti-
tution 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 obliga-
tion 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 rela-
tively precise language, but more verbs that represents action, behavior, change, exis-
tence 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 Imple-
mentation 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 Fuzziness and Legislative Language

5.4.3.2 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 indi-
cating 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 circum-
stances, 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 limi-
tations. 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 compe-
tition 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 uncer-
tain. 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 quan-
tity. 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 Adminis-
trative 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 circum-
stance 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 long-
term 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, fuzzi-


ness 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 legisla-
tors 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 irre-
placeable 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 ulti-
mately damage the legitimate rights of citizens and affect the whole society’s belief
in law.

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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 87
X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language,
https://doi.org/10.1007/978-981-99-2633-6_6
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 admin-
istrative 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, munici-
pality 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 legisla-


tive 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 Constitu-
tion 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 Constitu-
tion 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 mate-
rial 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 secu-
rity: “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 prop-
erty” 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 dispro-
portionate 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 state-
ment 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 princi-
ples. 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 intelli-
gence 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 capri-
cious 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 meri-
torious 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 infi-
delity 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 adjust-
ment 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 fixed-
term imprisonment, detention, or control when the circumstances are serious.” In
this article, “articles of an explosive, combustible, radioactive, poisonous or corro-
sive 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 Symbol-
Triangle 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: concep-
tual 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 distinc-
tion 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 stan-
dards 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 deliv-
ered 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 termi-
nologies 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, organi-
zation 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 mean-
ings be decided. Therefore, the Chinese people, especially the Han ethnic, in the
process of using Chinese language, are subconsciously used to universal associa-
tions 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 func-
tions 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 pronunci-
ation 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 indi-
cating 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 “imita-
tion”. 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 expres-
sive 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”, encoun-
ters 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 embar-
rassing 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”, “foreper-
son”, “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 concep-
tion, 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 expres-
sion 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 tradi-
tion 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 indica-
tion. 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 endan-
gering 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 Marxism-
Leninism 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.

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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 107
X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language,
https://doi.org/10.1007/978-981-99-2633-6_7
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 rela-
tionship 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 represen-
tatives 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 estab-
lish 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 posi-
tive 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 open-
ness. 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 devel-
oping 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:
必要限度造成不
“紧急避险超过必 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 mean-
ingful 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, non-
legal 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 compli-
cated 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 alter-
native 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 supple-
ment 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; ammuni-
tion; 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 defi-
nitely 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 func-
tion? 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 (signif-


icant 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.

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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 legisla-
tive 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 legisla-
tive 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 diffi-
culty 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 legisla-
tive 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 119
X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language,
https://doi.org/10.1007/978-981-99-2633-6_8
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 provi-
sions 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 regula-
tions and departmental provisions. For instance, our Constitution (1982) contains a
total of 138 articles, of which there are 140 violation of norms. After two amend-
ments, 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 inap-
propriate 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
不动产的相邻各方, 应当按照有
Republic of China (1986) stipulates, “不
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 struc-
ture, 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 qualifying-
and-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 stip-
ulated 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
China (1996 Amendment) stipulates: “公安机关侦查终结的案 案件,
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 recom-
mendation 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 Presi-
dent 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 interroga-
tion 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 direc-
tions)”; “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 circum-
stances of violation of the present Law, the leading organ or the admin-
istrative 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 respon-
sible 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 construc-
tion 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 defec-


tive 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 127

8.1.2.3 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 func-
tion 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 的” Structure
Loss of the “的

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 expres-
sion. 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, func-
tion words can be used incorrectly. Some highly used function words in legislative
language are often misused (Liu 2003).

8.1.3.1 和 (he)” and “或


Mutual Substitution of “和 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 calcu-
lated 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 对 (dui)” Misused as “对


Word “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 circum-
stances 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”. Prepo-
sitions “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 为 (wei)” Misused as “对


Word “为 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 (partici-
pants 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 131

8.1.4.1 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 organiza-
tion 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 incomprehen-
sible. 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 Inter-
pretations 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 syndi-
cate 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 Fuzziness and Violation of Norms in Chinese Legislative Language

8.1.4.2 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 fertil-
izers, 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 pesti-
cides, 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 detri-
mental 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);
《中华人民共和国消费者权益保护法》 (Law of the People’s Republic of China on
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 137

8.1.5.5 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 super-
sedes 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 crim-
inal 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 truth-
fully)” 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 aforemen-
tioned 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 Fuzziness and Violation of Norms in Chinese Legislative Language

8.1.5.6 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 estab-
lishing 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 under-
standable 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 linguis-
tics, 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 legisla-
tive 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, summa-
rizes 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 Tech-
nology, 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 legisla-
tive 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 legisla-
tive 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 deter-
mines 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 applica-
tion, 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, prag-
matic, 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 judi-
cial 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 substan-
dard 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 obliga-
tions 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 legisla-
tion 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. There-
fore, 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 legisla-
tive 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 profes-
sionals 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 legisla-
tion 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 imag-
ination. We should sum up, generalize and refine established legislative examples,
and only based on reality and extensive investigation can we apply corpus to legisla-
tive 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. More-
over, 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 educa-
tional 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

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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 deter-
mines 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 standardiza-
tion 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 trea-
tise 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 Legisla-
tive 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 149
X. Dong and Y. Zhang, On the Standardization of Chinese Legislative Language,
https://doi.org/10.1007/978-981-99-2633-6_9
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 ambi-
guity are two important features of human natural language, reflecting the charac-
teristics 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 dissim-
ilarity 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 back-
ground, 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 expres-
sions 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 effective-
ness 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 explana-
tion 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 Defi-
nition 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, condi-
tions 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 knowl-
edge, 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 posi-
tions 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 non-
linguistic 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 contex-
tual features can be divided into two and further into three, at the stage of system-
atic 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; when-
ever 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 legal-
meaning 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 Constitu-
tion 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 conno-
tation, 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 judi-
cial 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 legal-
meaning 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 influ-
enced 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 intentional-
metaphorical” (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 reso-
lution 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 indis-


pensable 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 defini-
tion, 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…dis-
rupting 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 misun-
derstanding and misapplication in practice (Hao and Shi 1998). In addition, inappro-
priate 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 prop-
erty 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 advance-
ment 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 non-
standard 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 Commis-
sion 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 interpreta-
tion 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 relation-
ship 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, descrip-
tion 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 obliga-
tions. 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 legisla-
tive language, narration and explanation are mainly adopted. Zhang Qiong believes
that accuracy is the soul and life of legislative language, and no vagueness and ambi-
guity 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 accu-
racy. 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 legisla-
tive 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 legisla-
tive 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 trans-
lating 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 provi-
sions 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 effec-
tive 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 sub-
corpora: 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 commer-
cial 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 inter-
national 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 posi-
tive 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 asso-
ciated 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 when-
ever 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 rela-
tively 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 interpre-
tation 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 hier-
archy 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 avail-
able 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”, “judi-
cial 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 trea-
tises” 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 crite-
rion, 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; adminis-
trative regulations of central ministries and commissions; judicial interpretations and
interpretations of “judicial nature” by local courts at all levels; local regulations; judi-
cial 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 comprehen-
sive 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 legisla-
tive 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 struc-
tured 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 popular-
ization 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 prosecu-
tion”, “fraud” and “robbery” etc. In the study of legal language, Chinese scholars also
places great emphasis on the popularization of legal terminology. From the perspec-
tive of legislative techniques, legal terms should be understandable and comprehen-
sible. 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 (theoriza-
tion) 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 so-
called conceptual renewal refers to the renewal of legal concepts and jurisprudential
concepts. With the improvement of China’s jurisprudential theory, the legal termi-
nology 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 scien-
tific 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, respec-
tively meaning “review” and “justification”), attributive structure (e.g. “刑法 (crim-
inal 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 impor-
tant 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 coun-
tries 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 exec-
utive 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 text-
books related to legal language research, and encouraging scholars to actively engage
in legal language research, so as to cultivate a group of compound legislative linguis-
tics talents proficient in both legislative science and linguistics. This is the funda-
mental 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 foreign-
related local laws, regulations and standardized documents to help foreign busi-
nessmen 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 final-
izing 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 Munic-
ipal 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 Munic-
ipal 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 Munic-
ipal 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 govern-
ment 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 regu-
lations 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 transla-
tion 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 legisla-
tive texts in China, there are still shortcomings and difficulties: Firstly, the current situ-
ation 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.

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