September 25, 2018 9:30 am
Yasmin Vlase-West is a Study Visitor in the Terminology Coordination Unit of the European Parliament (Luxembourg). She holds a Bachelor’s degree in European Legal Linguistics from the University of Cologne where she currently continues her studies in this field by completing the Masters program.
I wrote my bachelor’s thesis about the (legal) vagueness of the term “risk” in the directive 2004/33/EC as regards certain technical requirements for blood and blood components by means of the judgement of the European Court of Justice of 29th April 2015 (C-528/13).
The comparison of some of the directive`s language versions (English, German, French, Spanish and Romanian) shows a non-uniform application of the adjective “high” in relation to the term “risk” in these language versions. The discrepancies that can be found are not only inter- but also intralingual.
To assess the discrepancies properly an extensive legal linguistic analysis of the term “risk” was conducted. Thus, my thesis`s main steps and conclusions are the following:
1) The examination of “risk” in the European legal context:
- the term “risk” derives from the legal principle of prevention
- “risk” represents an indeterminate legal term
2) A presentation of the phenomenon of vagueness and existing means of specification from a linguistic point of view:
- vagueness is inherent to any natural language
- vague terms have three features which are intrinsically linked to each other: fuzzy extensional boundaries, borderline cases for their application and they are applicable to the vagueness of a term can never be completely eliminated, it can only be reduced
- the Sorites paradox
- context is an effective and important mean for the reduction of vagueness and specification of a term`s meaning
3) A comparison of linguistic vagueness with legal indeterminacy and existing specification means on the legal level:
- as any legal system depends on using natural language to create its laws, vagueness is also inherent to any legal language, called legal indeterminacy
- vagueness enhances flexibility and functionality of any language, but can also represent a serious problem
- indeterminate legal terms have to be precised on a case-by-case basis by the judiciary and authorities within their margin of discretion
- means for specification on the legal level: common legal interpretation methods (grammatical, systematic, teleological, historical approach), creation of substantial legal criteria by jurisdiction
4) The analysis of the non- uniform application of the adjective “high” in relation to the vague term “risk” in directive 2004/33/EC.
- the intention of using “high” was to specify the vague noun “risk”
- however, the specification deprives of its effects, because the adjective” high” is vague for its part
- instead of reducing the vagueness of the term “risk” the employment of the adjective “high” increases the term`s vagueness
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