(Legal) Vagueness

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).

Initial problem:

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.

Approach:

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

 

Reference:

Yasmin Vlase-West: Die Vagheit des Risikobegriffes in der Richtlinie 2004/33/EG anhand des EuGH-Urteils vom 29.April 2015 in der Rechtssache C-528/13

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