Interpretation Of Legal Texts Research Articles

Artificial Intelligence as a Participant in Modern Legal Relations

The practice of legal regulation is currently carried out in an environment determined by new technologies. The use of artificial intelligence in various spheres of life and the rapid technological development of society requires an understanding of the role of artificial intelligence in regulating human relations and an assessment of the need to determine its legal status. Science is faced with a new paradigm and jurisprudence is on the verge of a scientific revolution, since new technologies do not fi t into the pre-existing tenets of legal science. At present, the unification of the natural sciences and the humanities can be carried out on the basis of the principles of global evolutionism, which are immanently included in the objective study of self-developing objects. Associating the development of these objects with the problems of the place of man, taking into account the involvement of man in the functioning of the vast majority of developing systems mastered by human activity brings new scientific knowledge and a new humanistic meaning. The article attempts to define the concept of “artificial intelligence”, its essence, and identify its features in a legal context; the possibilities for the participation of artificial intelligence in legal relations (primarily related to intellectual law) have been identified. The results of the analysis of the decisions of the courts of case law countries on conflicts in the field of intellectual law using artificial intelligence are presented. In the article, based on comparativism, using epistemological constructivism and an activity approach, organically connected with the vision of the world as intercomplex self-developing systems, it is assumed to turn artificial condition of objective knowledge into a natural one. A number of observations on the interpretation of legal texts by law enforcement officials is offered.

Lawyers as Constructive Ideologists of Corporate Capitalism: The Legal Framing of Software

The study of law as a social process should combine an analysis of structures from a political economy perspective with a sociological focus on the practices of lawyering in mediating social relations and conflicts through the formulation and interpretation of legal texts. This approach is applied here to software, which has become the oxygen of the world economy, powering the digitalisation that has transformed economic activities and social life. The forms this has taken have been moulded by lawyers, battling over intellectual property rights in computer programs, enshrining them in national law and international standards, as well as devising the international tax avoidance strategies that have helped propel the giant digital-tech transnational corporations to global dominance. These contests have taken place through processes of formulation and interpretation of the legal concepts that both reflect and shape social struggles over economic and political power, mediated by law, in contemporary corporate capitalism.

Application of Artificial Intelligence Systems in Criminal Procedure: Key Areas, Basic Legal Principles and Problems of Correlation with Fundamental Human Rights

Background: Digital technologies are an important factor currently driving society’ development in various areas, affecting not only traditional spheres, such as medicine, manufacturing, and education, but also legal relations, including criminal proceedings. This is not just about using technologies related to videoconferencing, automated distribution, digital evidence, etc. Development is constantly and rapidly moving forward, and we are now facing issues related to the use of artificial intelligence technologies in criminal proceedings. Such changes also entail new threats and challenges – we are referring to the challenges of respecting fundamental human rights and freedoms in the context of technological development. In addition, there is the matter of ensuring the implementation of basic legal principles, such as the presumption of innocence, non-discrimination and the protection of the right to privacy. This concern arises when applying artificial intelligence systems in the criminal justice system. Methods: The general philosophical framework of this research consisted of axiological and hermeneutic approaches, which allowed us to conduct a value analysis of fundamental human rights and changes in their perception in the context of the AI application, as well as apply in-depth study and interpretation of legal texts. While building up the system of the basic principles of using AI systems in criminal justice, we used the system-structural and logical methods of research. The study also relied on the comparative law method in terms of comparing legal regulation and law enforcement practice in different legal systems. The method of legal modelling was applied to emphasise the main areas of possible application of AI systems in criminal proceedings. Results and Conclusions: The article identifies the main possible vectors of the use of artificial intelligence systems in criminal proceedings and assesses the feasibility and prospects of their implementation. In addition, it is stated that only using AI systems for auxiliary purposes carries minimal risks of interference with human rights and freedoms. Instead, other areas of AI adoption may significantly infringe rights and freedoms, and therefore the use of AI for such purposes should be fully controlled, verified and only subsidiary, and in certain cases, prohibited altogether.

Правоведы российского лесного законодательства XIX века

The article analyzes the contribution of law scholars of forest legislation of the 19th century; highlights their creative and life path. No state can exist without laws in general and without development of legislation of specific institutions, industries, structures, clusters, etc. Long-standing underdevelopment of Russian forest legislation can be explained by vastness of forests, lack of access to the seas, and lack of market relations. Transition from artisan mode of production to manufacture, the country's need for a fleet, and awareness of the necessity of replenishing the treasury through timber trade radically changed the picture and drew attention to the forest. All these changes required development of forest legislation, which actually happened in the 18th – 19th centuries. There are certain people behind each phenomenon, and the forest legislation is no exception. Those people, who harmonized fragmented and overlapping forest laws and in part, narratively, gave the legislative forest process itself a problem-chronological and explanatory character, did a huge and very useful theoretical and practical work, fully deserving the good memory of their descendants and recognition of jurists and all engaged in forestry. The empirical basis of the research is sources, which can be divided into several groups: reference books and encyclopedias of forest legislation; works analyzing the formation and improvement of Russian forest legislation; normative legal acts concerning forests. The methodological basis of the study is general dialectical method of cognition contributing to progressive development from specific to the general, as well as method of hermeneutics, lore of understanding and interpretation of legal texts; and approach emphasizing the objective nature of a historical personality’s activities, revealed through causality and conformity of historical development. The approach proposed by the author to consider the formation of the issue and its development by superimposing it with the history of personalities who solved the issue provides a new look on the problem, a better understanding of reasons that prompted scientists to deal with it, and saturates scientific narrative with brighter colors. The peculiarity of biographical research conducted by the author consists in understanding their life path, creative credo, and the history of the Fatherland.

A corpus-based interpretation of the discourse–cognitive–society triangle on Chinese court judgments

A court judgment is a common legal discourse and the final carrier of court trial activities. From the perspective of socio-cognitive discourse analysis, this study aims to describe and explore the Chinese court judgments in a corpus-based method, concentrating on the interactions among discourse, cognitive, and social dimensions. We have three key findings through an empirical qualitative analysis of the court judgments in China. First, the discourse dimension of Chinese court judgments is both society-oriented and cognition-oriented. The discourse components could mark the cognition sources in court judgments. Second, the cognitive source of faith is a part of social cognition on law and regulation, and induction and paraphrase provide the personal cognition to testimony, documentary, or hearsay evidence. Besides, the cognitive source of inference could change personal cognition into a social consensus through a reasoning process. Third, the social function of court judgments corresponds to the cognitive source and builds the surface structure with various discourse components. Moreover, a probe into the multi-dimensional relationship in court judgments can offer practical insights into the interpretation of legal texts in Chinese judicial decision-making.

THE CONCEPT OF HUMAN RIGHTS IN THE DIGITAL ERA/ CHANGES AND CONSEQUENCES FOR JUDICIAL PRACTICE

The digital age has led to conceptual changes in human rights and their content, understanding, implementation, and protection. Discussions about expanding the range of both addressees and subjects of human rights are a consequence and, at the same time, a breeding ground for change. New challenges for rights related to technological development, the increasing influence of companies and organisations, the growing use of solutions based on artificial intelligence, and the habit of relying on such solutions have led to the need for a substantial revision of such aspects as the content of individual rights and their catalogue, the definition of the fourth generation of rights as bio-information, and the clarification of the concept of digital rights. Digitalisation, which in a broad sense represents the legal, political, economic, cultural, social, and political changes caused by the use of digital tools and technologies, covers the private and public spheres, revives our understanding of and research into human rights in a horizontal dimension, and influences the revision of their anthropological foundations. The general philosophical framework of this research consisted of axiological and hermeneutic approaches, which allowed us to conduct a value analysis of fundamental human rights and changes in their perception, as well as to apply in-depth study and interpretation of legal texts. The study also relied on the comparative law method in terms of comparing legal regulation and law enforcement practice in different legal systems. The method of legal modelling was used to highlight the bio-information generation of human rights as the fourth generation of rights, as well as some scientific predictions in the field of human rights. The article argues that it is necessary to change our approach to human rights in the digital era, to widen the circle of addressees of human rights obligations to include companies and organisations, and to be ready potentially recognise artificial intelligence as a subject in public relations and fundamental rights. The term ‘spectrum of algorithm-based digital technologies’ is proposed, which can more accurately describe those phenomena that are covered by the synonymous terms ‘artificial intelligence’ and ‘algorithm’. The article proposes to consider digital rights in three dimensions, as well as to take into account the subtle structural consequences of changing the concept of human rights in the digital era for judicial practice.

Reading Law: The Interpretation of Legal Texts

Reading Law: The Interpretation of Legal Texts

Рrospects for the Development of Norms of Сivil Law on Preliminary Contract

This article is devoted to the study of the historical experience of regulating pre-contractual legal relations. The main focus is on the development of preliminary contract legislation. At the same time, problems are posed related to possible ways of further development of legislation on a preliminary contract. The purpose of the article is to study the current legal regulation of legal relations complicated by a preliminary agreement, and to propose scientific ideas aimed at improving the Civil Code of the Russian Federation in the part related to the preliminary agreement. The article was written with the active use of general scientific methods and special legal methods. When writing the article, the methods of formal logic and the general dialectical method and methods of interpretation of legal texts were used. In this article, conclusions are drawn about the need for a general design of a preliminary contract, uniting elements of all existing structures that ensure the organization of future contractual relations. In addition, this article draws conclusions about the introduction of special restrictions on freedom of contract when concluding a preliminary contract. The author expressed the idea of fixing such a legal consequence in case of violation of a preliminary contract, as the recognition of legal consequences as having occurred.

Law and Social Action

Why was the Voting Rights Act of 1965 able to accomplish what The 15th Amendment and subsequent Enforcement Acts in the 19th century were not? This paper argues that jurisprudence and the interpretation of legal texts cannot answer this question. Instead a social action approach is formulated, in which different actors within a given group are capable of taking specific actions in order to influence the collective perceptions held by members of that group, and thereby alter the group’s character. This approach is then applied to the history of The 15th Amendment and the Voting Rights Act of 1965 to shed light on the toothlessness of the former and the tremendous impact of the latter.

Interpreting the Arguments of China and the Philippines in the South China Sea Territorial Dispute: A Relevance-Theoretic Perspective

The South China Sea territorial dispute has been a contentious issue in the international community. In the course of 3 years, China and the Philippines had undergone arbitral proceedings over the maritime rights and entitlements in the South China Sea. As the Permanent Court of Arbitration reached its decision, this paper aims to examine the interpretation process of the Arbitral Tribunal in the judgment of the South China Sea conflict between China and the Philippines. The primary objective of the study is to reconstruct or explain how the Tribunal came up with its interpretation of the written arguments presented by the parties involved and to distinguish whether such reconstruction the Tribunal has successfully interpreted or made sense of the said arguments and submissions. Doing so would necessitate a pragmatic analysis– the relevance-theoretic account of human communication and cognition. Data analyzed include written submissions and arguments as well as the legal documents used during the arbitral process. Using content analysis, the data were evaluated through applying the tool of interpretation based on the criteria set by the three conditions of the relevance theory: (1) logical condition, (2) pragmatic condition, and (3) condition of optimal relevance. This paper argues that in order for the addressee of an utterance, in this case the Arbitral Tribunal, to attain a successful interpretation, it should meet these three conditions. This study found that the reconstruction of the interpretation based on the three conditions showed that the Tribunal had attained a valid and correct interpretation of the Philippines’ and China’s arguments. Furthermore, the paper asserts that implied conclusion and the contextual assumptions can be a guiding principle for the cognitive comprehension or interpretation of legal texts.

Covid 19. La pandemia, el derecho a la salud en Ecuador y Venezuela

The object of study at work is the state of the right to health of the Ecuadorian and Venezuelan population affected by the COVID 19 disease. The objective is to carry out a review process of the legal treatment given in Ecuador and Venezuela, being the different legal framework in the business application since in Ecuador specific management is contemplated through the area of occupational safety and health at work. Within the analysis of comparative law, a method applied in this study in which hermeneutical interpretation of legal texts is made, it is evident that the Constitutions of both countries are similar insofar as they correspond to the type of Constitutions that guarantee human rights, particularly those of social character, while the management models and the use of the information and communication media are radicall. Keywords: law, human rights health, pandemic, occupational health.

The Role of Founding Values and Principles in Constitutional and Statutory Interpretation: Lessons for Zimbabwe

This article explores the role of constitutional values and principles in statutory and constitutional analysis. Given that the exact meaning of these values and principles remains largely unexplored, the article starts by explaining the differences between these terms and argues that these differences are not important for purposes of determining the role of values and principles in the interpretation of legal texts. In addition, the article examines the meaning and scope of the teleological theory of interpretation which forms the philosophical basis of a value-laden approach to constitutional and statutory analysis. More importantly, the article proceeds to unpack the letter and reach of the constitutional provisions that explicitly require courts to pay due regard to values and principles when interpreting any part of the Declaration of Rights. Towards the end, the article demonstrates the role of values in both the interpretation of enactments and the development of the common law or customary law.

Brief of Amici Curiae Professor Clark D. Cunningham and Professor Jesse Egbert on Behalf of Neither Party, Blumenthal v. Trump, No. 19-5237 (D.C. Cir. Oct. 8, 2019)

On June 14, 2017, 30 Senators and 171 members of the House of Representatives filed a lawsuit in the United States District Court for the District of Columbia against Donald J. Trump, in his official capacity as President of the United States of America. The complaint alleged that the President had violated both the Domestic Emolument Clause and the Foreign Emolument Clause of the Constitution through his continued ownership interest in The Trump International Hotel in Washington, D.C. and many other businesses that receive payments from domestic and foreign governments. On September 15, 2017, the President filed a Motion to Dismiss, arguing that when the Constitution was ratified the term “emolument” had two distinct meanings – a “narrow” sense limited to “profit arising from an office or employ” and a “broad” sense meaning “benefit, advantage or profit” – and that emolument in the Constitution only referred to the narrow meaning. On April 30, 2019, the district court denied the President’s motion, concluding that the meaning of emolument is “sweeping and unqualified” and includes “any profit, gain or advantage.” Blumenthal v. Trump, 373 F.Supp.3d 191, 207, 212 (D.D.C. 2019). On August 21, 2019, the district court certified its decision for immediate appeal. The appeal is currently set for argument in the D.C. Court of Appeals on December 9, 2019. On October 8, 2019, professors Clark Cunningham and Jesse Egbert filed this amicus brief in support of neither party in the D.C. Court of Appeals, reporting the results of the research described in their forthcoming law review article, Using Empirical Data to Investigate the Original Meaning of ‘Emolument’ in the Constitution, 36 Georgia State Law Review (January 2020), available at SSRN: https://ssrn.com/abstract=3460735. Cunningham and Egbert applied the tools of linguistic analysis to newly available “big data” collections encompassing written language in common usage in the Founding Era to investigate the original public meaning of “emolument” at the time the Constitution was ratified. This data is accessible on the public website of the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. Cunningham and Egbert posed the research question: “Is there evidence that Americans in the Founding Era could have used the word “emolument” to describe revenue derived from ownership of a hotel?” They accessed every text in COFEA in which emolument appeared – over 2800 examples of actual usage – and analyzed all of these texts using three different computerized search methods. Their research results produced several different findings, each of which provided evidence that Founding Era Americans could have used “emolument” to describe revenue derived from ownership of a hotel. Using the word in such a way would have been consistent with what they discovered to be the broad meaning and wide usage of emolument. Further, their research revealed actual examples where “emolument” was specifically used to refer to revenue from ownership interest in a business. When they embarked on this research project, Cunningham and Egbert had no expectation that the results would favor any particular party to this case. Their amicus brief takes no position as to the affirmance or reversal of the District Court’s decision denying Petitioner’s Motion to Dismiss, noting that original public meaning may be only one of many factors taken into account when applying a constitutional text to a current issue. Egbert is a professor of applied linguistics who has authored or co-edited three books and more than 60 peer-reviewed publications. Cunningham is a law professor who has written previously about applying linguistics to the interpretation of legal texts, including Plain Meaning and Hard Cases, 103 Yale L.J. 1561 (1994), Using Common Sense: A Linguistic Perspective on Judicial Interpretations of 'Use a Firearm', 73 Washington University Law Quarterly 1159 (1995), and A Linguistic Analysis of the Meanings of 'Search' in the Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541 (1988).

Догматичний напрям методології формування сучасної національної доктрини приватного права

Юридична методологія відіграє важливу роль у забезпеченні комплексного дослідження цивільно-правової матерії, адже застосування усього доступного арсеналу апробованих у юриспруденції методів забезпечує найбільш якісне вивчення кожного окремого напряму цивілістичної проблематики. Зі свого боку врахування на законодавчому рівні обґрунтованих цивілістикою висновків та рекомендацій уможливлює подальше вдосконалення відповідних сегментів вітчизняного механізму цивільно-правового регулювання. Незважаючи на достатньо повно рoзрoблeну мeтoдику тлумачeння нoрмативнo-правoвих актiв на рiвнi iнструмeнтальнoї тeoрiї права i наявнiсть наукoвих праць, присвячeних спoсoбам тлумачeння дoгoвoрiв, мeханiзм виявлeння глибинної сутності більшості інших актів саморегулювання як рiзнoвидiв приватнoправoвих тeкстiв дoстатньою мірою у цивілістиці нe рoзрoблeний. Залишається також малoдoслiджeним питання щoдo мoжливoстi застoсування єдинoї стандартнoї сукупнoстi мeтoдiв пiзнання явищ цивiльнo-правoвoї рeальнoстi нeзалeжнo вiд спeцифiки oб’єкта дoслiджeння. Метою статті є спроба обґрунтування методологічної доцільності застосування герменевтики як одного з основних методів догматичного напряму наукових досліджень у цивілістичній науці. Показано, що в ідеалі сучасні дослідження у цивілістиці повинні ґрунтуватися на трьох можливих рівнях наукового пізнання: дoгматичнoму, сoцioлoгiчнoму та аксioлoгiчнoму. Продемонстровано, що догматичний рівень полягає у дослідженні норм позитивного права, що містяться в актах цивільного законодавства України, приписів, які становлять зміст правових звичаїв й інших джерел цивільного права, а також положень договорів, статутів, регламентів та інших внутрішніх документів юридичних осіб. Їх всебічне вивчення здійснюється за допомогою методів правової герменевтики з урахуванням актуальних потреб у регулюванні та волі, вираженої у правовій нормі. Обґрунтовується, що застосування герменевтичного підходу до дослідження цивільно-правової реальності дає змогу виявити системні проблеми в організації правової роботи окремих суб’єктів цивільних правовідносин, опрацювати пропозиції щодо її вдосконалення та окреслити шляхи досягнення поставлених завдань більш ефективними прийомами. Продемонстровано, що евристичний потенціал цього методу для здійснення досліджень у цивілістиці полягає в отриманні відомостей про смисл тексту, закладений у нього автором, і про те, для чого цей текст може бути використаний. У науковому дослідженні такий результат повинен бути проміжним, давати підставу для роздумів вченого про правові явища і служити приводом для виявлення проб лем в адекватності викладу фактичних обставин.

THE “CRIMINAL LAW OF VICTIM” AS A CRIMINAL LAW MODEL

The subject. The article is devoted to analysis of the basic models of criminal law and the impact of victim’s legal status on the criminal legal theory.The purpose of the paper is to substantiate the existence and the importance of “criminal law of victim” as basic model of criminal legal theory.The methodological basis of the research includes general-scientific methods (analysis and synthesis, system-structural approach) as well as academic methods (formal-legal method, method of interpretation of legal texts).Results and scope of application. The definition of the role of the victim, the importance of his legitimate interests in the implementation of criminal liability is complicated by the fact that the basic models of criminal law developed by science – “criminal law of the offender” and “criminal law of the crime” – do not consider the victim as a subject of criminal legal relations.The theoretical models of criminal law are embodied in the criminal law, specific legal rela-tions, law enforcement acts, etc., in connection with which there are specific indicators – the parameters by which it is possible to determine which model of criminal law is implemented.If the question of the criminal legal personality of the victim is controversial, in my opinion, there is no doubt that the victim is a party to the criminal law conflict, which often begins to unfold long before the crime.Conclusions. Recognizing the victim as a subject of criminal legal relations, as well as a par-ticipant in the criminal law conflict, it is possible to talk about the formation of a new model of criminal law – “the criminal law of victim”.

A special feature of corporate income taxation in Portugal: the autonomous taxation of expenses

PurposeThe purpose of this paper is to discuss the following research questions: Is the Portuguese corporate income tax (CIT) losing its internal consistency by extending the autonomous taxation of expenses (ATE)? Are receipts derived from autonomous taxes so relevant that what began as an exception is gradually becoming a permanent feature of the income tax? Given the constitutional principle that corporate taxation should be fundamentally based on income, is the taxation of expenses unconstitutional? Is Portugal an international outlier, in applying this type of taxation to corporate expenses?Design/methodology/approachThe methodology used in the paper is a blend of legal research method and case study analysis. The interpretation of legal texts and the ratio legis discussion (hermeneutical side), the evaluation of advantages and disadvantages of autonomous taxes (argumentative approach) and the use of aggregate data to gauge an impression of autonomous taxes’ impact on global tax receipts (empirical side) will, jointly, be used to analyse the topic. Autonomous taxation is a case study on how a (albeit distortive) solution is being applied in an European Union (EU) country to significantly enhance corporate-related tax revenue.FindingsThe authors conclude that autonomous taxation is a relevant source of revenue and its elimination is not foreseeable, at least in the medium term. Moreover, the extension of the tax base is gradually transforming CIT in a kind of dual tax, by charging profits and some expenses. The Constitutional Court, stressing the equity principle, has not ruled autonomous taxation unconstitutional, invoking usefulness against tax evasion. Finally, with the exception of some Portuguese-speaking countries, no other comparable international experience is observed.Practical implicationsThe autonomous taxes (ATE) and its progressive enlargement imply, on the one hand, that the CIT has been slowly, but inexorably, losing its sole purpose of taxing profits, and imposing a tax penalty on an increasing set of accounting expenses. On the other hand, the growing number of expenses subjected to taxation leads some authors to ponder if the Portuguese tax regime is losing attractiveness. By increasing ATE’s scope, the effective rate tends to move upwards, countering reductions in the statutory rate. Finally, tax law will increasingly influence managers’ daily decisions, given the set of expenses targeted by autonomous taxes.Originality/valueTaking into account the aim of this study, the discussion of a Portuguese particular feature of corporate taxation can highlight useful policy points to a broader audience. Many Organization for Economic Cooperation and Development (OECD) countries face a dire situation in public finances. Therefore, given the pressure to increase tax receipts, the ATE can be a case study on how a (albeit distortive) solution is being applied in an EU country to significantly enhance corporate-related tax revenue.

The Application of Paul Ricoeur’s Theory in Interpretation of Legal Texts and Legally Relevant Human Action

The article presents possible applications of Paul Ricoeur’s theory in interpretation of legal texts and legally relevant human action. One should notice that Paul Ricoeur developed a comprehensive interpretation theory of two seemingly distant phenomena: literary texts and human action. When interrelating these issues, it becomes possible, on the basis of Ricoeur’s work, to construct a unified theory of the interpretation of legal texts and of legally relevant human action. What is provided by this theory for jurisprudence is the possibility of formulating a comprehensive theory of application of law, well established in the ontology of the recipient of the legal text. It should be emphasised that the resulting benefits, outlined in the article become particularly noticeable when set against the background of the methodological weaknesses of legal positivism, concerning both the interpretation of law and a syllogistic model of its application.

Reading Law in Georgia

This article attempts to arrest the rising influence in Georgia of Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan Garner. Though Reading Law has many worthy uses, its false polemics, its sharp divergence from the law of Georgia, and its numerous flaws should incline Georgia courts to use it cautiously, not to adopt its program wholesale.Its flaws begin at the beginning, and this article takes the book to task for its misrepresenting the state of statutory interpretation at the founding of the nation as exemplified in its treatment of Blackstone’s Commentaries. Blackstone is clearly a purposivist, as Reading Law defines the term, and American judicial power was understood in purposivist terms, as the Georgia Supreme Court confirmed at a very early stage. Reading Law’s treatment of Blackstone is simply bad textualism.The article then surveys the breadth of Georgia’s approach to statutory interpretation in point-by-point comparison with Reading Law. Though there are large areas of agreement, the differences are striking, most tellingly in Georgia’s methods of determining and applying the legislative intent under the “Mischief Rule” and in its robust application of the “Absurdity Doctrine.” Numerous points in this survey show that a pure textualism is undesirable, that Reading Law departs widely from a pure textualism, that many of Reading Law’s canons of interpretation are purposivist in origin, and that most if not all questions of interpretation involve some judgment calls on the part of the judge, whether consciously or unconsciously performed, which makes hopelessly unattainable the textualist ideal of statutory interpretation free of judicial preferences.The article concludes by rejecting as weak the arguments that the book urges against purposivism, and it presents a philosophical contrast between the legislator presupposed by both approaches. The purposivist legislator is to be preferred.

Cultural Dimensions Of Legal Discourse

Abstract Despite the intention for precision and accuracy, legal discourse is oftentimes complex, archaic and ambiguous - which gives rise to contentious interpretation. Moreover, little or no attention is paid to the cultural dimension of legal discourse, which plays a critical role in the translation and interpretation of legal texts, as well as in the application of law. This paper endeavours to illustrate the impact the culture, or, more precisely, legal culture has on the way legal texts are construed or translated and to present problems which arise in the interpretation, translation and application of law as a result of cultural diversities

Textualism and Transnational Securities Law: A Reappraisal of Justice Scalia's Analysis in Morrison v. National Australia Bank

In 2010 the Supreme Court issued its opinion in Morrison v. National Australia Bank, which almost certainly effectively wiped out forty years of case law that addressed transnational issues under the U.S. securities laws in a powerful opinion by Justice Scalia, establishing a “transactional” test requiring a securities purchase on a U.S. exchange or otherwise within U.S. territory to recover. More recently, in late 2012, Justice Scalia, along with a co-author, published Reading Law: The Interpretation of Legal Texts. Reading Law purports to be an analysis of statutory interpretation, an update of older treatises on statutory interpretation as well as a comprehensive summary of the various canons and other rules of statutory interpretation. Interestingly, with respect to Morrison, Justice Scalia and his co-author have a separate section addressed specifically to the presumption against the extraterritorial application of statutes, the principal concern of Morrison. In addition, Justice Scalia states his views on what he (and others) call “purposivism” which is also critical to the reasoning of Morrison. Other sections of Reading Law also shed new light on Morrison. In short, Reading Law gives greater insight into the Morrison opinion, and its history and critique of the “conduct” and “effects” test that had held sway for over 40 years in transnational litigation involving the securities laws. In particular, the analysis of the presumption against extraterritoriality in Reading Law can be viewed as an attempt to bolster one of the key, but weaker, sections of the Morrison opinion. Thus, a reappraisal of the textual analysis of Morrison in light of Justice Scalia’s later work is enlightening. Further, his recent attack in Reading Law on “purposivism” and his linking it straightforwardly to the presumption against extraterritoriality is significant. Whether Justice Scalia’s use of the concept of statutory “focus” is a species of his own purposivist views is considered. Similarly, his attack on the technique of interpretation (a species of purposivism) that asks what Congress “would have meant” informs his strident attack on Judge Henry Friendly’s jurisprudence in the extraterritorial area. Unspoken is the unarticulated rejection of the possibility of “concurrent” jurisdiction or other alternative weighing of multi-jurisdictional interests in the contemporary international system although Justice Scalia had previously endorsed that, at least partially, in his plurality opinion in Hartford Fire. Finally, this article attempts to give a close reading to the opinion analyzing and critiquing its use of prior case law, including the “in connection with” body of case law under Section 10(b) of the Securities Exchange Act of 1934 (hereinafter “the ’34 Act”), which is a key intellectual pivot point in Morrison.