（外国语言学及应用语言学专业论文）论立法语言的模糊性.pdf

an analysis on vagueness of legislative language iv 摘 要 法律语言作为一种具有规约性的语言分支 其独特的语言风格之一就是措 辞十分准确 以避免产生不必要的歧义 从而有利于法律适用的便捷顺达 因 为法律规范是国家意志的表现 也是社会安定的重要保障 法律的权威性和强 制力决定了立法语言必须具有高度的精确性和严密的科学性 通过语言文字的 准确应用来表述国家的立法思想和具体的法律内容 以便全体公民 包括立法 司法和执法人员 清楚地了解到其作为公民的权利和义务 尽管如此 模糊性还是普遍地存在于法律语言特别是立法语言中 法律现 象复杂纷呈 而立法者不可能预测法律活动中所有会发生的事情 也不可能以 有限的法律规范来全面调整所有的社会行为 因此 为扩大法律规范的适用范 围 立法者增强了立法语言的自由度和灵活性 这有助于增强立法语言的包容 性 给法律条文的解释留有回旋的余地 但同时也增强了模糊性和抽象性 鉴 于此 对立法语言模糊性的研究有助于我们客观认识并正确对待模糊立法语言 用模糊语言承载精确语言难以传达的法律信息 在模糊性与精确性之间取得一 种动态平衡 最终达到提高立法技术 最大限度打击犯罪的目的 本文从三个层面对立法语言的模糊性进行分析 第一个层面是词汇层面的 模糊 也是立法语言模糊性表现最为突出的一个层面 根据词类的不同 将模 糊立法语言划分为模糊名词 形容词 动词 副词 代词和介词 这些词是立 法语言模糊性的主要研究对象 第二个层面是句子层面的模糊 立法语言中使 用并列手段加大法律条款的适用性 第三个层面是逻辑的模糊 逻辑结构是法 律和法律语言的支柱 也是立法者所采用的重要策略 本文采用认知学和符号学的理论对自然语言的模糊性进行了简要的分析 文章的重点在于对立法语言模糊性的分析 一是立法语言概括性的特点 用有 限的法律条文尽可能的去包罗更为广泛的法律行为 二是立法原则的要求 社 会变化日新月异 而法律文本相对固定 所以模糊性可以使法律概念的外延扩 大到法律所规定的范围 三是语言本身的特点 模糊语言的运用可以给执法者 中南民族大学硕士学位论文 v 灵活处理的余地 四是模糊语言的运用可有效地维护有关当事人的权益 最后 文化差异的影响也会造成立法语言的模糊性 关键词 立法语言 立法原则 模糊性 概括性 灵活性 an analysis on vagueness of legislative language ii abstract legal language is a language branch which is of stipulation one of its unique stylistic features is that it uses accurate diction so as to avoid unnecessary ambiguity which is beneficial for the expressive smoothness of the legal language as is known to all the law regulations are not only the demonstration of national willpower but also the important guarantee of social stability authoritativeness and compulsory power of the laws determine that legislative language must be of high accuracy and scientificity by means of the accurate usage of language the nation s legislative ideology and specific legal contents are expatiated so that all the citizens including legislative judicial and law executive staff can know clearly as citizens what rights and obligations they have vagueness however is still ubiquitous in legal language especially in legislative language owing to complexity of the legal phenomenon the legislators cannot anticipate all the possible happenings in legal activities nor can they enumerate all the social behaviors in terms of limited law regulations therefore the legislators increase the flexibility and generality of the legislative language in order to broaden the application scope of legal regulations this can be conducive to the improvement of inclusiveness of legislative language leaving flexible room for interpretations of legal articles but at the same time flexibility and generality cause vagueness and abstractness in light of this researches on vagueness of legislative language can help us get an objective understanding of vague legislative language and treat it in an appropriate manner vague language can be used to convey the legal information which accurate language cannot express and so the dynamic balance between vagueness and accuracy is realized finally the ultimate goal of the improvement of legislative technology and the punishment of the criminals to the largest extent is achieved in this paper vagueness of legislative language is analyzed at three levels the 中南民族大学硕士学位论文 iii first level goes to lexical level where vagueness of legislative language is most prominent according to parts of speech vague legislative language is divided into vague nouns vague adjectives vague verbs vague adverbs vague pronouns and vague prepositions these words are the important research objects in legislative language at the second level of syntax coordinate measures are employed to expand the scope of law articles usage vagueness at logical level ranks third logical structure is the backbone of law and legal language it is also a significant strategy by legislators in the enactment of law vagueness of natural language is briefly analyzed in terms of cognitive and semiotic theories the emphasis lies in the analysis on the vagueness of legislative language the first reason is due to generality of legislative language which has to embrace as many legal behaviors as possible in limited legal articles the second one goes to the requirements of legislative principles stupendous changes take place around the world whereas the legal texts are relatively fixed vagueness can make the denotations of the legal concepts extended to the domain stipulated by law thirdly vagueness results from the properties of language itself usage of vague language leaves room for elastic decisions by law executors finally influences of cultural differences also cause vagueness of legislative language key words legislative language legislative principles vagueness generality flexibility 中南民族大学中南民族大学 学位论文原创性声明学位论文原创性声明 本人郑重声明 所呈交的论文是本人在导师的指导下独立进行研究所 取得的研究成果 除了文中特别加以标注引用的内容外 本论文不包含任 何其他个人或集体已经发表或撰写的成果作品 对本文的研究做出重要贡 献的个人和集体 均已在文中以明确方式标明 本人完全意识到本声明的 法律后果由本人承担 作者签名 日期 年 月 日 学位论文版权使用授权书学位论文版权使用授权书 本学位论文作者完全了解学校有关保留 使用学位论文的规定 同意 学校保留并向国家有关部门或机构送交论文的复印件和电子版 允许论文 被查阅和借阅 本人授权中南民族大学可以将本学位论文的全部或部分内 容编入有关数据库进行检索 可以采用影印 缩印或扫描等复制手段保存 和汇编本学位论文 本学位论文属于 1 保密 在 年解密后适用本授权书 2 不保密 请在以上相应方框内打 作者签名 日期 年 月 日 导师签名 日期 年 月 日 中南民族大学硕士学位论文 i acknowledgements first and foremost i m especially grateful to professor lv wanying my faculty advisor for the enlightening instruction she has given me in planning and preparing this thesis for her enthusiastic and unfailing encouragement when i came across various difficulties in my study and thesis writing and for the pains she has taken to read and revise the previous versions time and again without her help this thesis would have been impossible moreover i am greatly indebted to all the professors and teachers who have taught me during my postgraduate study in school of foreign languages at south central university for nationalities from their courses i not only learned the linguistic theories but also benefited from their personal characteristics and their devotion to teaching my final thanks go to all of my classmates with whom i have shared my gains and pains during my postgraduate study last but not the least i would like to express great gratitude to my family for their love and understanding that give me confidence to overcome every obstacle all through my postgraduate study 中南民族大学硕士学位论文 1 chapter 1 introduction 1 1 research background forensic linguistics is an interdisciplinary subject which studies the relationship between law and language it is also an important branch in the applied linguistics as early as in the greek period the western scholars began to study the use of legal language at that time the focus was on legislative language and law texts which had a close relationship with rhetoric in 1960s with the development of linguistics more and more sociologists linguists psychologists and law experts began to realize the key role of language in forensic activities and so forensic linguistics found its way into the field of linguistics in july 1993 the first international forensic linguistics conference by iafl the international association of forensic linguistics was held in bonn germany and in the following year the first forensic linguistics journal forensic linguistics the international journal of speech language and the law was published which indicated the independence of forensic linguistics ma yu 2005 compared to other branches of linguistics forensic linguistics is relatively new and only a small number of universities or colleges in the world are devoted to this subject for this reason the study on legal language is a promising area in linguistics in a narrow sense legal language refers to legislative language exclusively that is the language used in regulatory law documents simply speaking it is the language used in statute in a broad sense legal language includes legislative language judicial language or law enforcement language as well as language of legal theory in other words legal language is used in law science of law and practice of law liu hongying 2007 22 in the present paper the author prefers the classification of legislative language law executive and judicial language and language concerning legal theory which can make the discussions and results more an analysis on vagueness of legislative language 2 clearly as is known to all law is the demonstration of national power and the guarantee of a stable society legal language has been always considered as the strictest language having no strictness and accuracy law will be in lack of compulsory power and authority this is especially true for legislative language accuracy has always been the soul of legislative language and is also one of the major legislative principles legislators try their best to make the legislative language authoritative and to remove the ambiguity as one of the varieties of natural languages legal language has almost all the features of natural languages including vagueness to which linguists and legal professionals have paid much attention in practice vagueness runs through the whole forensic activities and it is hard to remove it pearce maley 1994 pointed out that in australia and england it is necessary to adjudicate the meanings of specified legislative provisions in about 40 forensic activities which indicates that legislative language is very often vague so far vagueness in legal language has been most discussed and a lot of achievements have been made in this field to fulfill today s study what has been achieved in the study of vagueness cannot be omitted this is what will be introduced in literature review 1 2 significance of the research it is commonly assumed that legislative language should be as precise as possible the importance of preciseness in legislative language is often highlighted by the legists however quite the reverse legislators frequently employ vague expressions in the legislative texts chen xingliang 1992 said that in the chinese criminal laws such terms as serious can be found everywhere the connotations and denotations of such terms are rather vague they are not only the boundary to distinguish crime from non crime but also the boundary to distinguish serious crime from mitigated crime the specific meanings of such terms depend on the 中南民族大学硕士学位论文 3 understanding of judicial staff and the common citizens have no access to them this indicates the imperfection of legislation but the society is so sophisticated that legislators can hardly anticipate all the possibilities of legal activities and give very detailed rules and regulations it can be said that vague language is inevitable in legislative fields in light of this the study on vagueness of legislative language can improve the understanding of vagueness so far great achievements on the study of vagueness have been made in the field of forensic linguistics but the scope of investigation is not so specific that is to say most of what has been done is about legal language which includes legislative language judicial and law enforcement language and the language concerning the forensic theories some scholars only touched the lexical level and gave the explanations in terms of semantics even if they made research on vagueness of legislative language in fact vagueness of legislative language also appears at syntactic and logic levels and vagueness of legislative language can be explained in terms of other theories for example pragmatics and cognitive theory this can make the research of vagueness of legislative language more comprehensive and systematic of course the negative effects of vagueness on legislative language can never be ignored improper use or overuse of vague language can hamper the operation of laws which is harmful for the equality and impartiality of laws if so lots of disputes will be brought about in the judicial practice for this reason the study on vagueness of legislative language enables the legislators to remove the negative effects and improve the legislative techniques resulting in an improved legislative system all the above inspire the writer to analyze the vagueness of legislative language in hope of increasing the study awareness of this domain and to make some contributions to the study of forensic linguistics and the legal english teaching and learning an analysis on vagueness of legislative language 4 1 3 data collection the legislative articles in the paper are chosen from both at home and abroad the foreign legislative articles are mainly from the legislative texts of the united states why to make such a choice nowadays in the world the legal systems basically fall into two kinds the continental law system and the common law system the chinese legislative system belongs to the continental law system while the american legislative system belongs to the common law system the examples chosen from these two different legal systems may better serve the analysis on the vagueness of legislative language the names of the law texts from which the example articles are chosen are listed in the appendix 1 4 organization of the thesis this thesis consists of altogether six chapters chapter 1 is an introduction to the background significance and data collection of this research and also the organization of this paper in chapter 2 the key term vagueness is explained and the difference between vagueness and ambiguity between vagueness and generality are presented above all categorization of vague language is elaborated which is divided into four kinds vague additives vague implicature vague continuums and hedges in chapter 3 the definition of legislative language is given followed by the studies on legislative language this chapter includes the properties of legislative language the properties of legislative language are analyzed from two aspects lexis and syntax after that chapter 4 is devoted to the analysis on vagueness of legislative language which is divided into three major parts vagueness at lexical level vagueness at syntactic level and vagueness at logic level following this procedure chapter 5 explains the reasons why vagueness exists in natural language as well as in legislative language 中南民族大学硕士学位论文 5 chapter 6 serves as a conclusion the author summarizes the major findings applications and points out the limitations of the study as well furthermore some suggestions are given with a view to deepen the research in the future an analysis on vagueness of legislative language 6 chapter 2 overview of vagueness of language 2 1 key terms vagueness was first discovered in philosophy a greek philosopher eublides who was in the same era as aristotle and a member of megarian school initiated the famous theory sorites paradox which tried to solve a complicated mathematic problem with the idea of vagueness in sorites paradox the most common are paradox of the heap and paradox of the bald man the former talks about how many grains can make a heap one grain does not make a heap at all one another grain does not either the rest may be deduced by analogy adding numerous grains cannot make a heap however we all agree that one grain is not a heap but that a million grains makes a heap the latter mainly means that a man with one hundred thousand hairs is not bald one hair lost does not make him bald one hair lost again does not either in this way the man is not bald even though he has lost one hundred thousand hairs this sorites paradox aims at turning an originally true proposition into a logically true but in fact preposterous conclusion by means of reasoning the reasoning is characterized by increasing or decreasing continually the properties of matters so as to change the truth value of a proposition this done the two value logic of aristotle was challenged with the limitations of his theory being pointed out eventually people recognized vagueness of languages which to some extent promoted and brought about the birth of vague mathematics and vague logic in longman dictionary of language teaching 2 indeterminacy of meaning where the meaning of an item itself seems indeterminate 3 lack of specification in the meaning of an item where the meaning is clear but is only generally specified 4 disjunction in the specification of an item s meaning where the meaning involves an either or statement with different interpretation possibilities 1977 124 128 before the author gives the definition of vagueness this fact should be noticed some scholars distinguish vagueness from fuzziness considering them two different terms others have used vagueness and fuzziness interchangeably in fact vagueness and fuzziness are difficult to tell one from another zhang qiao 1998b 101 defined vagueness as words or sentences which have more than one semantic explanations she gave an example mr wang took away my bicycle this sentence can be understood in different ways such as mr wang took away the bicycle which i bought myself mr wang took away the bicycle which i borrowed from my friend or mr wang took away the bicycle which my father bought for me and so on on the other hand the words with uncertain extensions are called fuzzy words in the daily life almost all physical objects have characteristics that vary continuously not disjunctly we can say mr smith is five feet tall or mr smith is very tall perhaps mr smith is five feet twelve inches tall while saying mr smith is five feet tall is just roughly correct for the sake of convenience saying he is tall can also convey information generally speaking it is unnecessary to make uncertain extension precise in our daily communication such fuzzy language can be enough most of the times according to oxford advanced learner s dictionary extended fourth edition under the two entries we can find the following illustrations 1 vague not clearly expressed or perceived not specific or exact imprecise 1997 an analysis on vagueness of legislative language 8 1678 2 fuzzy blurred or indistinct esp in shape or outline 1997 602 it seems that these two terms convey similar meanings in fact no matter what the concept is called it makes little difference between the two as long as we keep it well defined in our minds furthermore w