The Role of Language in Shaping Legal Interpretation: A Comparative Study of Common Law and Civil Law Systems

• Muhammad Abdullah

  Author

The paper is a comparative study of the use of legal language in creating an interpretative approach in both Common Law and Civil Law systems. It states that, Judicial interpretation is not an objectively technical action but it is profoundly conditioned by the shape, custom and natural characteristics of the language of the law itself. The paper indicates that, because of its Common Law tradition, based on precedence (stare decisis), the Common Law language of drafting has a natural tendency towards boring particularity, and gives rise to interpretive canons, including textualism and the plain meaning rule. The tradition of the Civil Law, founded on the conception of a broad codification, and having its language that of general principle, rationally requires a teleological formulation of the law, towards the spirit and towards the systemic end of the law. The paper also examines the differentiation of the positions of the judge based on these different linguistic foundations: The Common Law judge as a decoder of statutory text in a web of binding precedent and the Civil Law judge as an applier of general codes based on intent and coherence. As much as globalization, statutory proliferation and the effect of supranational courts are suggested as driving forces behind a major convergence of practices forcing Common Law judges to be increasingly more purposive and Civil Law judges to recognize jurisprudence constant the analysis concludes that fundamental linguistic and philosophical differences remain. The very essence of any system, which in its individual way is anchored in the language, is still necessary to make sure that the ways to ascertain the legal meaning keep their own essential diversity in the world of legal thinking.

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