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Legal Syntactic
Legal Syntactic
Legal Syntactic
1.1 SYNTACTIC
Syntactic also has many values but in general it designates the study of the
relationships that words form in a sentence.
Ducrot and Todorov affirm that the relationship between subject and
predicate is a reflection of a function in the broader unit that is the
sentence. This presupposes: * Syntactically, the entire sentence is not a
conglomerate of elements. The elements of the sentence maintain
relationships with each other. * These relationships are the functions: it is
accepted that the phrase, taken globally, has a purpose and each
constituent contributes to the fulfillment of that purpose. * The function of
an element is not determined by its nature, as demonstrated by the fact that
the function of subject can be performed by different elements. * The
inventory of syntactic functions of the language is finite.
Linking this definition to law, it turns out that the study of the linguistic
properties of the legal system invades its entire existential expression as
discourse. And, even more, the same dogmatic thought considers that
semiology is useful, both in legislative work and in the application of the
abstract norm to the concrete case.
On the other hand, it is necessary to point out that the positive law that
exists in a given society has manifestations in translingual forms, which
indicate the mistake of considering it exclusively as language. So, if law is
not exclusively language, it is due, as is understood, to the threat of
coercion, which qualifies legal forms by basing their effectiveness, that is,
that their afflictive phase in relation to the recipients goes beyond a series
of procedures. analogical relative to the language in which normative
statements are written.
Since being expressed in spoken or written language, the law does not
dissolve or subvert the characteristics of the language in which it is written.
Since the law uses the intelligibility that language can provide to its
prescriptions and subjects its specificities to the rules of oral or written
language that make it understandable.
When the law uses verbal signs, its messages are interpreted primarily as
language. Being a discourse, its interpretation is directed to different
associative fields to which a discourse of another type for another social
subsystem would be referred. When in legal practice one seeks to establish
the meaning of the words of the law, one will go through legal customs, the
definitions established by jurisprudence, the general principles of law, etc.
But if the discourse of the law is given the interpretation of a literary
discourse, the expressions of the text will be associated with the repertoire
of metaphors and linguistic turns known by a certain author, the school to
which he belongs, etc. However, the associative process that runs through
the specific sources results in the establishment of a secondary and typical
meaning in relation to the discourse being examined. The determination of
such secondary meaning occurs through a process in which language
preserves its particular functioning. In this sense, if one seeks to
understand the functioning of legal writing and its interpretation
mechanisms, one must overcome its hermeneutic and traditional
ineffectiveness, referring to the study of the ways in which language
discourses are constituted.
Some later authors criticize Saussure because they consider the concepts
of sign, signifier and signified to be insufficient. They point out that the
concept of sign is limited as an association in the sense of the levels of
signifier and signified and, they say, the designation of these levels must be
replaced by the terms expression and content.
If the reference is made to the law, in terms of what has been said, it is
observed how dogmatic thought, when referring to written norms, considers
the signifier as the graphism that exposes each word of the law, whether we
speak of deontic logic or of legal semiology, for your interest it is indistinct.
If one focuses on the second relationship, the sign with other signs, this is
established through a process of contrasts and oppositions. It is these
distinctions that a word has in relation to others that explain it, that is, give
it its value. The significance, ultimately, depends on its value. From this it
follows that the concept of value is fundamental in the interpretation of the
sign. It indicates that, undoubtedly, language is a system, a "structure", in
which the meaning of expressions is determined by a complex network of
relationships.
One must ask what relationships are these? To give an answer, we will
resort to locating two different aspects, since each of them produces a
certain order of values. On the one hand, the aspect of syntagmatic
relations and, on the other, that of associative relations. There is a question-
begging to deal with both aspects, which consists of starting from the
definition of a phrase. In this sense, Saussure says that, at the level of
discourse, words are chained in obedience to the linear and irreversible
character of the language, thus excluding the possibility of pronouncing two
elements at the same time, generating a combination that is supported by a
extension. The combinations of elements, words, compound words,
sentence members, entire sentences that, based on the extension of the
language, form significant units, will constitute the phrases. Furthermore,
the relationships between the elements of the phrase, or the relationships
where the value of each sign depends on its opposition to the preceding and
the one that follows, where the terms are articulated in presence, make up
the syntagmatic relationships.
The last phase of the analysis of legal language would be its organization,
which necessarily implies a logical mathematical strategy, specifically an
algebra of sets, that allows the jurist to integrate, in a reasoned and correct
way, the classification of law with respect to its various aspects. regulatory
areas.
When analyzing and studying legal language, itself, the fulfillment of three
functions stands out, which are: * Formulate and transmit knowledge and
information (descriptive language) * Direct and influence human behavior
(prescriptive language) * Arouse emotions or moods ( expressive or literary
language)
On the other hand, legal language can be of two kinds; a language whose
object of study is the legal norms issued by the legislator, also called
language of norms; and another language that is the one used by jurists,
also known as "metalanguage."
The author, Antonio Hernández Gil, explains this difference between both
legal languages, between the normative language of law and the scientific
language of law; "The normative language, as a whole, is prescriptive, while
the language of the legal scientist, although it deals with prescriptions, is
descriptive."
The law, through the legal language of norms, is capable of self-creation. On
the other hand, the language of jurists, he studied the language of norms.
The discourse of norms is prescriptive, "orders", while the discourse of
jurists describes, what the norms prescribe.
Legal norms and truth values, whose most important function is to guide
human behavior or actions.
Another type of propositions are normative propositions, which are the usual
linguistic sign of a norm (a directive that indicates what can be done and
(or) not done). This type of propositions have as propositional functor one of
the following verbs: "must do", "have the right to do", "have the right not to
do". Estimative propositions mean estimates, that is, value judgments,
which are judgments that prove that an action is, in one sense or another,
good, indifferent or bad.
Syntactic analysis
Any linguistic expression can be precise or diffuse, since any, even if it is
well formed syntactically, depends for the determination of its meaning on
the context of use and on the non-grammatical rules that determine its
adaptation to changing circumstances, which well-constructed statements
can be an expression of diverse meanings. Strictly speaking, law is the
purified version of inconsistency, ambiguities and vagueness that jurists
prepare from the linguistic material produced by legislators. Making law:
dictating laws, resolving conflicts, agreeing on legal acts, is a linguistic
activity: the message transmitted in the speech is the law itself.
The idea of the analogy between law and language is a product of the
consciousness of society: in its theoretical elaboration, legal science would
resemble the grammars developed by linguists to explain the languages
developed spontaneously by popular consciousness; Language and positive
law are produced by human conventions from certain ritual functions of
language similar to the legal uses of language to constitute specific legal
phenomena.
Law is a set of rules; The unit of analysis is the norm, whether in its
grammatical aspects or in some formalization suitable for some logical
calculation. The norm, from a grammatical point of view, are modal or
imperative sentences. Example: a modal verb is duty, which alters
traditional grammar and originates the "modality" of the statement; Another
example is the adverbial expression "it is obligatory that" allows us to
obtain norms from morally neutral sentences.
that the internal and external negation of the deontic modal operators
cannot be adequately expressed in some natural languages, except through
periphrasis.
In law, the importance of languages is very different from what it may have
in other disciplines. Language for law is not only a way of externalizing
oneself, it is a way of being. The law imposes a severe discipline on
language and this is obvious because the justice of the expression is not
foreign to the justice of the resolution.
Semantics of Law
3.1. SEMANTICS OF LANGUAGE
Morphologic. It looks at the monemes and morphemes that make them up.
Functional. It takes into account the work you do in the prayer or message.
On many occasions these criteria are usually combined to define each type
of word. This is the case, for example, when the noun is defined as a
"variable word, morphological criterion, which performs the functions of
subject and direct object, functional criterion, can be accompanied by
determiners and adjectives, syntactic criterion, and serves to name things
or people, criterion semantic".
The semantics of natural language applied to law (based on the fact that
semantics is the coding of meaning within linguistic expressions), finds
three definitions of the (purely) referential occurrence of a term in a
statement: it can be said that the occurrence of a term singular (ts) in a
statement (E) is referential (or purely referential), a) if (ts) is used in this
occurrence to specify or identify its object (its denotatum) in such a way
that the rest of the statement asserts something about him; b) if, in this
occurrence, (ts) can be replaced by any other codenotative term (that is,
with the same denotation) without the truth value of the statement being
altered; and c) if (E) is of the form "(ts) has property P" and the passage from
statement (E) to statement "there is an object that has property P" is a valid
inference. That gives rise, in turn, to three concepts of reverently opaque
context. A context is reverently opaque if the insertion of an utterance (E)
into it can render irreferential (not purely referential) the occurrence of a
singular term that was referential in (E). There are some authors who call
opaque contexts indirect, but others use the criterion of failure of
substitutivity of codenotative terms to identify them.
When talking about the semantic properties of the language of law, it must
be taken into account that there is a general classification of propositions.
There are imperative propositions that designate an imperative relationship
that links the subject of the action with the action, signifying an order.
Pragmatics of Law
4.1. LANGUAGE PRAGMATICS
Pragmatics, the discipline that studies the relationship between such signs
and the contexts or circumstances in which users use such signs. A
pragmatic definition is one obtained from practice or experience and not
from theory. It always indicates an awareness of things as they really are,
that is, it is always objective. It sticks to the facts and leaves no room for
speculation.
The relationship of signs with the social, cultural and ideological situation in
which they are used.
The language of law is that in which the legislator enunciates the legal rule.
Like any language, it can be subjected to linguistic studies.
The language of law has pragmatic, syntactic and semantic properties like
any other particular language. With this, it is possible to determine the
properties of the language of law that are manifested through the
relationships that exist between the expressions of law and those who state
them (pragmatic properties); It is possible to specify the relationships that
unite the expressions of the law with each other (syntactic properties) and,
in addition, it is possible to capture the relationships established between
the expressions of the law and the meaning thoughts (semantic properties).
The pragmatic properties of the language of law concern the question of the
sources of law and its enactment. This study can be extended to the
relationships that exist between the expressions of this language and those
to whom they are directed, with which it would be possible to say whether
or not the law exercises effective influence on the behavior of people and
society.
For the authors of the discursive theory of law and politics, Kelsen's
statement becomes increasingly valid, according to which whoever only
relies on an earthly truth... cannot justify the inevitable coercion to the
realization of social purposes, if it does not convey at least the approval of
the majority of those who must take advantage of the coercive order. The
democratic procedure is then constitutive of the legitimization of the
sociopolitical order. On the other hand, communicative reason does not
accept the "skeptical" interpellation of democracy, which visualizes in it a
simple search, guided by rules, for a compromise between discordant
interests and visions of the world. Supporters of this position are therefore
subjected to strong criticism. In particular, the instrumental conception of
democratic rules would not have the capacity to explain the binding nature
of their respect by the interested parties; This would rather justify the
attitude of the so-called free rider, who, while showing acceptance of the
rules, implicitly reserves the right to violate them if this ensures the
achievement of a higher individual interest. It is possible to escape from this
dead end only by once again attributing a normative value to democratic
rules; that is, from the perspective of discursive theory, anchoring them to
the value of the truth of social communicative processes: democratic rules
are nothing more than the formalization of what happens in social
communication in any way. As long as they function, those who do not
respect them are placed in a normatively wrong and socially marginal
position: in this way, reestablishing the violated norm is no longer an
abstract Sollen, but the product itself of social dynamics.
Once the reason for the foundation of the socio-political order in the social
processes in which the rulers are involved has been clarified, we return to
the problem of how this foundation is founded, from the modalities of the
passage of communicative reason that permeate society to the
crystallization of formal rules. On this point, discursive theory is divided into
two tendencies, one markedly normativist, and another that directly refers
to the concretion of vital worlds.
The idea of the rule of law can be developed on the set of principles
according to which a legitimate right is produced from the power of
communication and this, in turn, is translated through the right legitimately
erected into administrative power. That is, the democratic principle refers
to the level of external institutionalization, effective in the plan of action,
from equal participation to a discursive formation of opinion and will, which
is fulfilled in communicative forms that are in turn legally guaranteed. . In
other words, the democratic rule of law has the task of translating the
product of social communication into binding legal norms; In this way, on
the one hand the legal medium has the function of a transformer and
expander of the weak impulses towards the social integration of a
communicatively structured vital world; On the other hand, administrative
power can be redirected to that communicative power that constitutes the
only source of legitimation.
A norm is created to regulate the conduct of individuals who are within the
scope of spatial validity of the law of a State, its immediate purpose is to be
accepted and fulfilled by its recipients, which is why pragmatic rationality is
presupposed for the feasibility of the norm in its practical application, not
only positivized and as a theoretical part of the legal system. It is defined as
the claim that the conduct of the recipients conforms to what is prescribed
by law. It is the degree of acceptance and compliance with the standard by
the recipient or addressee of the standard. The importance of this
rationality is manifested in the fact that it would make no sense to have a
perfectly well-structured body of regulations, prepared in accordance with
the established training processes, if its degree of incidence and
compliance is not being achieved, because there is no parameter between
the editor and the receiver. or link that intertwines them.