On The Usage Of Vague Words In Legal Texts

The use of vague words in legal texts is a question that seems exquisite from the microcosmic perspective while could govern the world from the macroscopic, however, it has not been able to catch the attention of legal scholars. It was not until the putting forward of "open structure" theory by H.L.A.Hart that the legal scholars understood such a sense:the use of words has gone beyond the conceptional analysis and normative analysis of law, and has established a new boundary for legal norms on a descriptive meaning. With the "linguistic turn" of the law, the difficulty of the use of vague words in legal texts gradually evolved into a new legal proposition:the vagueness of the law. This legal proposition is stated against the traditional western pursuit of certainty of law, while it expresses the objective status of law. With the legal scholars increasingly focus their attention on language, words and the vagueness of language, the proposition of the vagueness of law and the difficulty of the use of vague words in legislation are becoming hot spots for the legal science to explore.The problem of the use of vague words in legal texts is a world-spread difficulty on the application of law today. Generally speaking, as for the nature of words, there are both nuclear region with clear meaning and marginal zone with vague meaning, thus resulting in the characteristics of openness on the structure of general words. vague words in legal texts, as one of the forms of the everyday language, also show such characteristics of openness. From the perspective of jurisprudence, the vague characteristics of the words is a kind of language phenomenon, rather than its legal meaning. It shows unique legal functions in legal texts, i.e., it can realize the abstraction of legislation, keep the elasticity of the rules of law, improve the technicality of legal texts, establish autonomy space for citizens and make up for the pragmatic defects of written law. It seems that the use of vague words in legislation has its special legal value. Therefore, eliminating the concerns of the linguistic sense, the vagueness of words does not damage (in contrary increased) the balanced status of relative stability and predictability of law. If legislators get vague words out of legal texts, the legal texts would become a kind of closed and rigid dogma. Faced with the challenge of social change, the relative stability and predictability of law will be wiped out. In this sense,vague words is not the beginning of the vagueness of law, but a pursuit of legal certainty by legislators.Vague words provide a "framework order" in the legal texts. Legislators and the ones who apply the law may determine the semantic range of vague words from the rational judgment of "human self-legislation". In this sense, the semantic border issue of vague words is essentially discussing the control border of the law. As H.L.A.Hart says, the meaning of legislative language can not be achieved by "consider word as it stands". The categories and changes of social context and social relations can not be unfolded directly by language. Thus, it would be more conducive for us to discern the deep meaning of vague words by examining the standard usage of words and the relationship between the usage of words and the society. According to the use of vague words in legal texts, combined with the territoriality of legal language, the vague words used in legislation are divided into three types:Inclusive vague words, Measurable vague words and Extent vague words, and the phrases "mother" "public interest" and "in serious cases" are selected to elaborate the three types. The word "mother" confirms the semantic change of vague words, which is triggered by social change; The term "public interest" shows us the measurable problems of vague words; The use of the phrase "in serious cases" proved a huge extent of contradictory between vague words and legal practice.Of course, the real concern of legislators and the legislature is not the problem of vague semantics of words, but what effects of social control could the law realize based on this kind of meaning of words. The openness of vague word may cause erratic effect of this social control, which is obviously not conducive to the establishment of the rule of law. Thus, "Open Texture" requests the legislator to clear the semantic boundaries of vague words and to regulate the use of vague words in legislation. As we all know, vagueness is one of the basic properties of language, any attempt to clear the semantic boundary of vague words only reduces the degree of vagueness of words in a relative sense. Words can not be absolutely clear. The analysis from the perspective of philosophy, economics, linguistics and psychology all proves this judgment. It cleared the problems of concept and category between vague words and objective world in the philosophical angle; It tells the "cost-benefit" question of vague words in the economic view; It discusses the semantic and pragmatic issues of vague words in legal texts in the linguistic analysis; It explains the cognitive discrepancies of vague word in the psychological perspective.The semantic ambiguity problems of vague words have prompted legislators to reflect on the normalization of the use of legal terms. The official and civil organizations in English countries launched a social movement named "Plain Language Movement". The movement aimed at reducing the complex, redundancy and ambiguity problems in the use of English language. The government documents and national legislation became the main targets in the movement. Plain Language Movement argued that the use of plain language aims to make legal texts clear and explicit, to improve the quality and efficiency of the legislation, and also to promote communication and exchange between citizens and the government. Therefore, legislators should achieve the following three objectives in the process of legislation. Firstly, the drafting of legal texts should be based on the public’s perspective rather than the legislators themselves for drafting convenience; Secondly, the complex words should be replaced with concise and easy words. Thirdly, efficient language usage rules should be established. For example, linguistic rules, association rules and vague-rules of vague words in legislation of modern western countries have become the main programs to solve the vague problem of the legislation, and have achieved some success in practice. In addition, in order to achieve the correct use of legislative language and to improve the quality of national legislation, South Korea created the legislative language review procedure, thus to provide a legal process for the review of legislative language (including vague words). Based on the useful experience of these countries, in the use of vague words, we should pay attention to our own language features in Chinese legislation, and acknowledge the technical characteristics of vague words, and comply with the customs of customary language, and strengthen the normative and openness of vague words, take the procedural review of legal languages into account.To this end, the Legislators should adhere to "linguistic rules" and "substantive rules" in the use of vague words and refine the following operational rules:(1) Prevent bias rules, plain meaning rules, association rules; (2) Effective supplement rules, functional constraint rules, tolerance rules. The main aim of vague words using rules is to guide the drafting of law, and improve the quality and scientificity of law. However, simply establishing rules is not sufficient to ensure the healthy implementation of the rules. Therefore, based on "linguistic rules" and "substantive rules", the legislators should introduce certain procedural rules (legislative language review procedure), in order to implement the rules above. Of course, it means that not only the use of vague words belong to the review scope of legal language review process, but also other types of words, statements, even the chapter structures should be reviewed by legislative language review procedure, thus to prevent the "legislators review paradox".