The aim of this article is to critically reflect on the Polish transformation taking place in the interpretation of business law in the form of legal clarifications that can be qualified as a soft law guidance. The article attempts to address the following questions: does the new Polish legal framework offer really novel approaches to the interpretation of business law and/or its tools? What are the peculiarities that characterize the new instrument for the interpretation of business law in the form (...) of legal clarifications? What are the pros and cons of legal clarifications? What is the potential practical importance of the introduced interpretation tool, in particular in the context of certain previously existing tools for the interpretation of legal texts? To this end, first, the article sheds light into types of the interpretation of legal texts as well as soft law guidance. Second, it analyses the distinctive features of legal clarifications. Third, it contains the concise comparison of legal clarifications to certain previously existing instruments. In the last part before the conclusion, the topic required an attempt at an assessment. The point of the analysis in this article was both descriptive and normative. (shrink)

The centrality of argumentation in the judicial process is an age-old acquisition of research on legal discourse. Notwithstanding the deep insights provided by legal theoretical and philosophical works, only recently has judicial argumentation been tackled in its linguistic dimension. This paper aims to contribute to the development of linguistic studies of judicial argumentation, by shedding light on evaluation as a prominent aspect in the construction of the judge’s argumentative position. Evaluation as a deep structure of judicial argumentation is studied from (...) a discursive point of view entailing the analysis of a sample of authentic judicial language. Evaluative lexis is investigated within a single genre of judicial discourse, i.e. judgments, instantiated by a corpus of US Supreme Court judgments. Findings show that judges use diversified strategies to take stance as they organise their argumentative discourse: from easily recognisable verbal and adjectival tools to more finely-grained discourse elements such as the encapsulating pattern ‘this/these/that/those + labelling noun’. (shrink)

Una de las cuestiones a que se enfrenta la teoría de la argumentación jurídica, y a la que se dedica este trabajo, es poner de relieve el papel que las valoraciones tienen en el proceso de aplicación del derecho. Las razones valorativas juegan un papel más importante que el que la concepción positivista del derecho suele advertir. En muchos casos las decisiones judiciales no pueden justificarse en el propio derecho, sino en valoraciones ajenas al mismo. Esto no debe significar que, (...) en este ámbito, aquellas sean necesariamente arbitrarias, pero sí discrecionales, lo que conlleva que deben establecerse algunos criterios de racionalidad; criterios que no son ya jurídicos, sino de carácter moral o ético. (shrink)

This dissertation addresses the issues of the indeterminacy of law and judicial discretion in the decision of the quaestio facti. It is composed of four papers: In the first paper, I develop an account of legal indeterminacy called the ‘systemic indeterminacy’ thesis. This thesis claims that legal indeterminacy and judicial discretion are the results of features of the structure of typical rational legal systems such as interpretative codes with a plurality of interpretative directives, the non-redundancy clause, and the non-liquet rule. (...) In the second paper, I criticise two approaches that support the thesis that law ought to ascertain the truth of the quaestio facti: the motivation approach and the legal approach. First, I advance two objections to a version of the motivation approach that I call the ‘behaviour-guidance’ theory. The first objection claims that the appearance of ascertaining the truth is enough to produce the psychological state of compliance. The second objection claims that the indeterminacy of law brings about the impossibility of an ex ante knowledge of the content of the law, thus, the governed cannot gain knowledge of the law’s efforts to ascertain the truth. Second, I explore if the legal approach is plausible. I provide five different legal reasons to support the claim that the law ought to ascertain the truth of the quaestio facti. However, I show that none of these reasons are particularly convincing. In the third paper, I advance three objections to the idea of reducing the indeterminacy of the standard of proof rules by adding new legal rules for their interpretation. The first objection claims that these interpretative rules, do not provide any guidance to the trier of fact to set the quantum of evidence. The second objection claims that insofar as these interpretative rules are posited in a natural language they are also indeterminate. The third objection claims that these interpretative rules are redundant legal rules. In the fourth paper, I develop the thesis that standards of proof are competence norms that grant competence to triers of fact to set the quantum of evidence in a case-by-case manner. (shrink)