=Paper=
{{Paper
|id=Vol-1341/paper8
|storemode=property
|title=Legal Argumentation Concerning Almost Identical Expressions (AIE) In Statutory Texts
|pdfUrl=https://ceur-ws.org/Vol-1341/paper8.pdf
|volume=Vol-1341
|dblpUrl=https://dblp.org/rec/conf/argnlp/AraszkiewiczL14
}}
==Legal Argumentation Concerning Almost Identical Expressions (AIE) In Statutory Texts==
https://ceur-ws.org/Vol-1341/paper8.pdf
Legal Argumentation Concerning Almost Identical Expressions (AIE)
In Statutory Texts
Michał Araszkiewicz Agata Łopatkiewicz
Department of Legal Theory Institute of Education
Jagiellonian University Jagiellonian University
Bracka 12, 31-005 Kraków, Poland Stefana Batorego 12, 31-135 Kraków, Poland
michal.araszkiewicz@uj.edu.pl agata.lopatkiewicz@uj.edu.pl
strictly identical, they should be treated as differ-
Abstract ent by the addressee of the statutory regulation.
These two argumentative stances point out incon-
This paper deals with the problem of rea- sistent solutions and, therefore, may cause diver-
soning with synonymic expressions in the gent opinions concerning the rights and obliga-
domain of statutory law. It is shown that, tions of addressees of the law. Therefore, the in-
even in cases of strong lexical synonymy vestigation of this phenomenon is important for
(what is referred to here as ‘Almost Iden- the sake of legal policy matters. However, the
tical Expressions’), it is necessary to en- analysis of argumentation encompassing almost
gage in complicated argumentative struc- identical expressions is also of crucial importance
tures in order to obtain justified conclu- for the development of legal knowledge-based
sions concerning the mutual interreplace- systems. Such systems should take into account
ability of legal terms. This result has im- that the relation of synonymy between linguistic
plications for the methods adopted in re- expressions should be treated more carefully than
search on the automated analysis of the in less formal contexts of discourse in order to
corpora of legal texts. avoid oversimplifications and potentially wrong
suggestions to the user.
1 Introduction
2 The Notion of Synonymy
The aim of this paper is to analyse the phenome-
non of legal argumentation that makes use of al- Synonymy has always been considered one of the
most identical expressions extracted from statu- most basic semantic relations between linguistic
tory texts. It is often the case that a lawmaker expressions (for instance, Murphy 2003). The re-
makes use of expressions A and B in statutory lation is also useful in contemporary research on
rules, where A and B have such a similar meaning Natural Language Processing 1 (see also Hirst
that they would be presumably treated as strictly 2004). Although synonymy is generally ac-
synonymic by a native speaker of a language. counted for as similarity of meaning, in special-
Therefore, a native speaker of a language would ised contexts, this account is insufficient because
be inclined to assign identical consequences to of notorious problems concerning the understand-
states of affairs designated by expressions A and ing of notions regarding ‘similarity’ and ‘mean-
B. The similarity between the mentioned expres- ing’.
sions seems to constitute grounds for the applica- Due to these problems, the relation of synon-
tion of arguments based on plain meaning and ymy has been a subject of interest for linguistic
analogy. However, there exist certain rationality philosophers. A classic contribution to the debate
assumptions behind the making of laws leading to is a paper by Goodman (1949), in which he argues
the conclusion that, if two expressions are not than no two non-identical words can have the
same meaning. Instead of the theory of synonymy
1 The WordNet project involves the notion of synsets: sets http://wordnet.princeton.edu, accessed on September 24,
of cognitive synonyms that represent certain concepts. 2014.
as ‘sameness of meaning’, he advocated a theory It is easy to note that the use of the term ‘syn-
of ‘likeness of meaning’, according to which two onymy’ in descriptive lexicography tends to avoid
names of predicates may be treated as synonyms the discussion of philosophical problems of this
if their meaning is similar enough to warrant the linguistic phenomenon. Generally, the people in-
thesis of their ‘sameness’, or mutual interreplace- terested in finding synonyms to certain words are
ability, in certain contexts of discourse. The crite- interested in substitutability of these words with-
ria used here may vary from one context to an- out changing their meaning (as regards both deno-
other (Goodman 1949, 7). tative, connotative and social meaning, Murphy
As with any philosophical thesis, Goodman’s 2013, 302). These empirical findings are compat-
proposal remained controversial in the literature ible with Goodman’s thesis referred to above.
of the subject (for a relatively recent contribution,
see Heydrich 1993). The philosophical discussion
of synonymy is deeply connected with such topics 3 Almost Identical Expressions (AIE) in
as analyticity and necessity. For obvious reasons, Statutory Language
we cannot investigate these extremely compli-
cated issues here (see Soames 2003). However, The texts of statutes consist of linguistic expres-
we claim that Goodman’s thesis captures an im- sions. Generally speaking, a lawmaker intends to
portant insight into the pragmatic dimensions of indicate certain states of affairs and to assign legal
synonymy: two linguistic expressions, A and B, consequences to them. The lawmaker indicates
may be seen as mutually interreplaceable in the these states of affairs by means of linguistic ex-
context of discourse C1 while they could be as- pressions. The language of law shares many fea-
sessed as different (and, therefore, not mutual sub- tures with plain language, such as indeterminacy
stitutions) in the context of discourse C2. The re- and vagueness (Bix, Endicott); however, although
lation of synonymy depends on the context of as- it is often presumed that statutory texts should be
sessment regarding this relation. understood with regard to the ‘plain, natural
Philosophical controversies notwithstanding, meaning’ (Interpreting Statutes), often special, le-
the notion of synonymy is widely used in lexicog- gal meaning should be ascribed to the used terms
raphy, and the existence of thesauri and dictionar- (for a recent elaboration of this subject, see
ies of synonyms is obvious evidence for the use- Araszkiewicz 2014).
fulness of this relation for language users. The It is often the case that the lawmaker chooses
words ‘synonym’ and ‘synonymy’ are actually similar, yet not identical, terms to refer to certain
used by the speakers of languages, and the corpora states of affairs that are assigned to legal conse-
of conversational material are investigated in or- quences. In such contexts, there is a situation of
der to establish their actual understanding of the doubt whether the lawmaker intended to refer to
term. Murphy (2013) notes the following accounts the same, or to different (sets of) states of affairs.
of the word ‘synonym’ as found in the analysed The pragmatic context of interpreting such statu-
corpora: tory language expressions is set out by the adver-
1) synonymy as ‘sameness’ or ‘near sameness’ sarial character of legal proceedings. Each party is
of meaning, interested in persuading the judge to ascribe such
2) synonymy as the possibility of substituting meaning to a statutory term that leads to the legal
one word for another, consequences desired by this party. Consequently,
3) synonymy as the co-extensional character of a party to the dispute may be interested in treating
two scientific names (in biology). similar expressions alike with respect to their le-
There are more specific understandings of the gal result; another party may be interested in strict
word ‘synonym’ in computer science (Murphy differentiation between the meanings of slightly
2013, 281), but they are not relevant to the discus- different expressions.
sion of the present paper. Interestingly, the rela- There are different approaches to the indicated
tion of synonymy is also found in translational problem in different jurisdictions. Sometimes,
contexts: the words that are mutual translations in even the lawmaker gives explicit guidelines to
different languages are also seen as synonyms show how similar expressions should be inter-
(Murphy 2013, 282). preted. For instance, the Australian Acts Interpre-
tation Act 19012 contains a provision, 15AC, ac-
cording to which, ‘when an Act has expressed an
2 http://www.comlaw.gov.au/Series/C1901A00002, last ac-
cessed on September 24, 2014.
idea in a particular form of words and a later Act All these expressions would be treated as mu-
appears to have expressed the same idea in a dif- tual substitutions in the majority of contexts of
ferent form of words for the purpose of using a discourse by a native speaker of the Polish lan-
clearer style, the ideas shall not be taken to be dif- guage; interestingly, lawyers are also often in-
ferent merely because different forms of words clined to see these three expressions as interre-
were used.’ 3 However, typically, the lawmaker placeable ones. However, this contention does not
will be reluctant to give the addressees of legal lead to any immediate answers concerning both
texts such explicit suggestions. Thus, the dilemma the content of requirements that are expressed by
concerning the ascription of identical or non-iden- the expressions listed above and the consequences
tical meaning to slightly different linguistic ex- of non-compliance with these requirements.
pressions will remain an open issue. For the sake of clarity regarding the following
This dilemma is particularly visible with regard investigations, it is necessary to delineate the legal
to the class of expressions we refer to as Almost context concerning the ‘written form’ requirement
Identical Expressions (AIE). By definition, the in Polish civil law. The basic rules dealing with
linguistic expressions E1 and E2 in language L be- this issue are in art. 73 § 1 of the PCC:
long to the set of AIE if and only if:
1) they stem from the same lexical root, If the law stipulates that a legal act be made in
2) they are not identical from the syntactic point written form, an act made without observing the
of view, stipulated form is invalid only if the law provides
3) they would be considered as natural mutual for a nullity clause.
substitutions by a competent native speaker of
language L (in a relevant context of discourse C). and article 74 § 1 of the PCC:
The point 3) is the most important one: AIE cre-
ate a strong inclination in the native speakers of The stipulation of written form without a nullity
the language to treat them interchangeably in the clause leads, if the stipulated form is not observed
relevant context of discourse. But point 2) creates in litigation, to witness evidence or evidence in the
the possibility for the construction of arguments form of declarations of the parties concerning the
to the contrary. The next two sections are devoted performance of the act being inadmissible.4
to the discussion of an exemplary legal question
encompassing the use of AIE. The legal consequences stemming from the
quoted rules are straightforward. If a given act
4 The Legal Research Problem should be made in written form and the law pre-
scribes for the pain of nullity, in the case of failure
The legal research problem that focused our atten-
to fulfil the requirement, the act is not valid. Con-
tion on the argumentation concerning AIE is as
versely, if the pain of nullity is not mentioned in
follows: what are the legal consequences of non-
the law (or in the statement of the parties), the act
compliance of subjects of law with the require-
cannot be invalid in the case of non-compliance
ment of concluding contracts and making other
with the written form requirement. This conse-
statements in writing? The Polish Civil Code (Act
quence is uncontroversial. The legal results pro-
of 23 April 1964, consolidated version: Journal of
vided by the latter of the quoted provisions are
Laws 2014.121, hereafter referred to as the PCC)
more nuanced: if a written form is required for an
contains approximately 100 instances of expres-
act and it is not complied with, the act is still valid.
sions lexically cognate with the word ‘writing’,
However, certain types of evidence are not admis-
most of which are parts of provisions specifying
sible to prove that such act has taken place. Let us
requirements of the form of contracts and other
refer to this legal consequence as the consequence
statements. There are three types of these expres-
of evidentiary difficulties. In the following anal-
sions, forming a set of AIE:
yses, we will focus on this latter legal conse-
1) ‘in written form’ (PL: w formie pisemnej),
quence only. The consequence of invalidity is an
2) ‘in writing’ (PL: na piśmie) and
easy topic from the point of view of argument
3) ‘stated in writing’ (PL: stwierdzone
pismem).
3 We are grateful to Graeme Hirst for pointing out this inter- 4 The translations of the provisions are taken from the com-
esting regulation during the BiCi seminar on Frontiers and mercial Legalis system provided by the C.H. Beck publish-
Connections between Argumentation Theory and Natural ing house, with certain modifications by the authors.
Language Processing in Bertinoro (July 20-24th, 2014).
mining and natural language processing of statu- tend to give positive and negative answers to the
tory texts: an act is invalid only if there is an ex- question) and Q2: positive (but the interpretation
plicit clause providing for such consequence. In of the answer depends on the chosen answer to
the absence of such a clause, the consequence of Q1).
the failure to meet the requirement of a ‘written Theoretically, several argumentation schemes
form’ should lead to evidentiary difficulties. This can play their role is justifying different answers
contention is, again, uncontroversial, with regard to Q1. For instance, the argument from plain nat-
to the requirement of ‘written form’ as indicated ural meaning would support a positive answer to
in the latter of the quoted provisions. The question Q1. The argument would run as follows.
is, first, whether the requirements provided by the
law should be understood identically where the Premise 1. Statutory terms should be inter-
law speaks about ‘written form’, ‘in writing’ and preted in accordance with their plain natural
‘stated in writing’, respectively. Second, what are meaning.
the legal consequences of the failure to meet the Premise 2. According to plain natural mean-
requirements referred to as ‘in writing’ and ‘stated ing, the expressions ‘in written form’, ‘in writing’
in writing’? and ‘stated in writing’ should be treated as (strict)
Let us present the existing controversy in a synonyms.
more explicit manner. Let us assume that a legal Conclusion. The meaning of X, Y and Z is
provision of the PCC has the following scheme: identical (positive answer to Q1).
(X) Legal act X should be performed in written Let us note that this argument could be further
form. backed by analogous reasoning: Premise 2 could
be refined to relax the assumption of strict synon-
The quoted art. 74 § 1 of the PCC enables us to ymy in favour of the claim that, in the context if
derive the following conclusion from (X): legal discourse, these AIE should be treated as
carrying the same meaning (because the differ-
(X-con) If the legal act X is not performed in ences between them could be reasonably ignored).
written form, then the consequence of evidentiary Actually, a refined version of this argument
difficulties shall apply as regards the legal act X. scheme was used by one of the most influential
legal scholars in Poland, Zbigniew Radwański
Let us recall the expression ‘in written form’ (Radwański 2002, 134). The remaining analysed
forms an AIE set with the expressions ‘in writing’ doctrinal sources also adopt this view. Let us re-
and ‘stated in writing’. This enables us to present construct his argument:
the two following schemes of provisions (actually
often instantiated in the PCC): Premise 1. If differences between the terms
used by the legislator are a matter of style only,
(Y) Legal act Y should be performed in writing. then the terms should be treated as (strict) syno-
(Z) Legal act Z should be stated in writing. nyms.
Premise 2. ‘In written form’, ‘in writing’ and
The precise formulation of the legal research ‘stated in writing’ are terms that differ with re-
questions goes as follows: (Q1) Is the meaning of spect to style only.
X, Y and Z identical? (Q2) Is it the case that Y and Conclusion. The meanings of X, Y and Z are
Z lead to the formulation of Y-con and Z-con rules identical (positive answer to Q1).
analogous to the X-con rule?
In order to establish valuable answers to these Let us note that a positive answer to Q1 im-
questions, a corpus of judgments (>30 cases) and plies, as a matter of logic, a positive answer to Q2.
legal doctrinal works (5 sources) were examined. However, it is also possible to formulate argu-
The results are reported in the following section. ments to the contrary. According to the rationality
postulates concerning legislative process, if the
5 Analysis of Actual Arguments as legislator intends to indicate the same state of af-
Found in the Corpora fairs in different parts of regulation, he uses one
and the same term. If he uses (even slightly) dif-
The analysis of the existing material led to the fol- ferent terms instead, this means that his intent was
lowing answers to the questions outlined above:
Q1: undecided (there are authoritative sources that
to designate different states of affairs. This argu- The courts tend to adopt a negative answer to
mentative pattern is often referred to as the prohi- Q1 in this context. For instance, in the Resolution
bition of synonymic interpretation: of 6 July 2005 (III CZP 40/05), the Supreme Court
stated that:
Premise 1. The terms used in the statute should
not be assigned with an identical meaning unless Stating of the claim in writing in the under-
they are syntactically identical. standing of the art. 514 of the PCC is satisfied
Premise 2. ‘In written form’, ‘in writing’ and also in case the creditor issues a document (e.g.
‘stated in writing’ are not syntactically identical. an invoice) that confirms the performance of an
Conclusion. The meanings of X, Y and Z are obligation and the debtor accepts the document.
not identical (negative answer to Q1).
Thus, the Supreme Court ruled that the re-
Note that a negative answer to Q1 does not log- quirements for satisfying the ‘stated in writing’ re-
ically imply a negative answer to Q2. A negative quirement are less severe than ‘in written form’.
answer to Q1 consists only of holding that the The satisfaction of the latter implies the satisfac-
‘written form’ requirement is something other tion of the former, but not the other way around.
than ‘in writing’ or ‘stated in writing’. Let us add The reconstruction of an argument justifying
in this connection that, uncontroversially, the this conclusion from the wording of the Resolu-
‘written form’ requirement is satisfied only if a tion is a non-trivial task due to the highly complex
statement is manually5 undersigned by a person. structure of the analysed sentences. The proposal
Consequently, the controversy between a pos- of the argument’s structuration would be as fol-
itive and negative answer to Q1 boils down to the lows:
set of sufficient conditions to satisfy a given re-
quirement. Undoubtedly, if a legal provision is Premise 1. There is no need to delimit the types
based on the scheme (X) presented above, the re- of documents that may be used for the identifica-
quirement is not met unless the statement encom- tion and confirmation of legal facts (wrt art. 514
passing the content of legal act X is manually un- of the PCC).
dersigned by a person. The question (Q3) is Premise 2. Adoption of a positive answer to Q1
whether this sufficient condition should also be would amount to the undue delimitation of the
met for the satisfaction of requirements formu- types of documents used for the identification and
lated in schemes (Y) and (Z). As a matter of confirmation of legal facts.
course, a positive answer to Q1 implies a positive Conclusion. Q1 should be answered nega-
answer to Q3, while a negative answer to Q1 im- tively.
plies a negative answer to Q3.
Interestingly, the judicial opinions reviewed in The argument formulated by the Supreme
the research tend to adopt a rather negative answer Court is enthymematic, especially with regard to
to Q1 (unlike doctrinal sources quoted above). the premise 1: the court seems to assume that the
This may be caused by the fact that judicial au- possibility of identification and confirmation of
thorities are closer to legal practice and they do legal facts is a worthwhile value, which should be
not intend to impose unnecessary burdens on the realised at the expense of more firm protection of
addressees of the provisions. This is particularly debtors. This stems from the contention of the Su-
visible in the context of the interpretation of the preme Court, according to which an invoice is-
following provision (art. 514 of the PCC) related sued by the creditor but not accepted by the debtor
to the institution of a claim assignment: would be insufficient to fulfil the condition of ‘be-
ing stated in writing’, because the protection of
If a claim is stated in writing, a contractual the debtor would be too weak if a broader inter-
stipulation that assignment cannot be made with- pretation were accepted. This value judgment can
out the debtor's consent is effective towards the be reconstructed from the text only by a person
assignee only when the document contains a men- who possesses at least basic legal training. How-
tion of the stipulation unless the assignee knew of ever, this does alter the conclusion that the Su-
the stipulation at the time of assignment.
5 For the sake of brevity, we leave the problems of elec-
tronic signatures aside.
preme Court rejects the thesis concerning the mu- Even in the case of AIE, which seem to be
tual interreplaceability of expressions ‘in written (near) synonyms on purely linguistic grounds, as
form’ and ‘stated in writing’. it was shown, the discussion of their interreplace-
ability involves the use of not only linguistic ar-
It is worth emphasising that the same interpre- guments, but also teleological arguments pos-
tation has been accepted by the courts with regard sessing a complicated structure. The obtained
to the interpretation of art. 511 of the PCC: conclusions are contextual and perhaps defeasi-
ble, as is often the case in the context of legal dis-
If a claim is stated in writing, its assignment course.
should also be stated in writing. The most important conclusion stemming from
the investigations above is that, in the context of
For instance, in the Judgment of the Appellate an NLP analysis of the corpora of legal texts (aim-
Court in Katowice of 8 March 2005, I ACa ing at the creation of intelligent databases of legal
1516/04, the negative answer to the Q1 was ad- knowledge), one should be very cautious as re-
vanced on the basis of a literal reading of the stat- gards the use of any databases of synonyms.
ute: If the legislator speaks about ‘stating in writ- Moreover, the corpora of statutory texts should
ing’, this means that he does not intend to intro- not be analysed apart from the legal doctrine and
duce a requirement of ‘written form’, simply be- (most importantly) databases of legal cases. These
cause these expressions are not identical. sources should serve for the reconstruction of ar-
Let us note that the answer to the Q2 may re- guments used to determine the meaning and scope
main positive even if Q1 is answered negatively. of statutory expressions.
However, different situations will have to be con-
sidered as regards the satisfaction of ‘written References
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