If you were wondering what an applied linguist does, this is an example of my work conducted in Forensic Linguistics: Linguistic vagueness and the law; a case study on Italian legislation during the COVID-19 pandemic.
The chicken coop dilemma
Can a chicken coop on wheels be considered a vehicle? This apparently harmless question, as Shardimgaliev (2016) suggests, became the centre of the case Garner v. Burr of 1951. According to the UK Road Traffic Act of 1930 (Morrison, 1930), vehicles on the road were required to have pneumatic tires. As Endicott (2022) reports, in 1950 Mr. Burr was accused of an infraction, as he had mounted his chicken coop on iron wheels, attached it behind his tractor, and drove it on the road. Initially, Mr. Burr was acquitted by the magistrate on the grounds that a chicken coop on wheels does not qualify as a vehicle. However, the appeal court reversed this decision. Instead of referring to the words of the statute, the appeal court considered more important the reason why the law had been put in place: to protect the roads from damage. Therefore, both sides argued for and against the consideration of the chicken coop as a vehicle to decide the final verdict. Whether a chicken coop on wheels is a vehicle or not, as Shardimgaliev (2016) highlights, this case is of theoretical importance as it highlights one of the legal system’s issues: vagueness in legal language.
Linguistic Vagueness
Vagueness is a feature of lay and legal language alike (Scotto di Carlo, 2013). It entails that language has the potential to create ambiguity in the interpretation phase of communication. Looking more closely at the linguistic features of ambiguity, Endicott (2022) explains this phenomenon by appealing to the symbolic nature of language. As language is the expression of the interpretation of reality and not reality itself, as Sapir-Whorf’s theory of linguistic relativity states (Lucy, 1997), language is a symbol of an interpretation. The relation between reality and word is not direct, as the intermediate step of interpretation mitigates the connection. This intermediate passage is not stable and constant: it varies from person to person, from situation to situation, as Garner v. Burr exemplifies. Even in everyday conversation, most words can be hard to define. For example, how can an adult of average intelligence be defined? In everyday language, the precise definition of these words might not create interpretation issues and its meaning could be generally assumed. However, what qualifies as an adult of average intelligence in a legal context might have much more serious implications (O’ Connor, 1979. A very fitting example of this can be traced back to the case of the New York Plain English statute of 1977. This legislation required certain legal texts to employ Plain English to help citizens better grasp the meaning of the law (O’ Connor, 1979). However, to initially determine whether a law was expressed in simple enough terms, the text had to be deemed comprehensible to an adult of average intelligence. As O’ Connor further explains, this statute put most professionals and citizens alike in a difficult position. It created issues in drafting legal text and in their application, as an “adult of average intelligence” cannot be easily quantifiably measured, especially considering the differences in age, education, ethnicity, gender, etc. This is only one example of the issues that can arise with ambiguity.
Furthermore, ambiguity seems counterproductive and antithetical to the idea of law, as it implies under-regulated and grey areas of interpretation (Endicott, 2005). However, as Hemel (2023) points out, ambiguity is not just an uncomfortable linguistic feature that legal language has to deal with; it is also used purposefully on some occasions. As Bhatia (1993, as cited in Scotto di Carlo, 2013) suggests, the law needs to embody two qualities to be effective: be all-inclusive and precise. Therefore, linguistic features of vagueness have the potential to cover more cases more broadly, compared to extremely precise terminology like legolisms and monosemic words (cf. Hemel, 2003; Endicott, 2005). Furthermore, as Hemel (2023) suggests, vagueness in the legal setting is not only an occasional linguistic flaw of the system that can unexpectedly arise, such as in the case of Garner v. Burr. It can also be used productively by the legal system itself and its professionals to further private and public agendas.
Despite the purposeful use or lack thereof of vagueness in legal text, there are some measures in place to decode ambiguities and uncover the likely meaning of a word, phrase, or sentence (Kaplan, 2020). A few of the main measures include: intertextuality or the rule of lenity, which use other texts or cases to disambiguate vagueness; disambiguation parameters for lexis such as noscitur a sociis or Ejusdem generis, where the interpretation of a word is to be linked to the immediate and surrounding co-text; for syntactical ambiguity, canons such as the last antecedent or the series qualifier are put in place to determine the correct order of influence of words (even though these two canons contradict each other); the plain meaning rule which dictates that statutes must be interpreted according to the ordinary use of the language; and finally the two approaches that are usually adopted when interpreting a text: textualism, which focuses exclusively on what is in the text; and purposivism, which focuses on the purpose the text serves, beyond its textual elements (Kaplan, 2020; Scotto di Carlo, 2013; Hemel. 2023). These diverse strategies highlight how varied the phenomenon of ambiguity can be, as it can present itself in a lexical, morphological, or syntactical form (Kaplan, 2020). A few of these strategies will be applied now to better grasp the case of Garner v. Burr.
Looking back on the chicken coop dilemma, linguistic vagueness in this situation is embodied by lexis. In this case, two meanings of the statute were activated: the literal sense and the situational sense, the denotation and the connotation of the word “vehicle”. Denotation is the literal sense that a word activates in a text, while connotation is an idea associated with the word, such as figurative or situational meanings (Chandra Sekhar Rao, 2017). The literal meaning of “vehicle” does not traditionally include chicken coops on wheels, as an average speaker would not consider it as such (Shardimgaliev, 2016). While contextually it could be debated that a chicken coop on wheels is a connotation of “vehicle”, as the entire context of the law infers it (Endicott, 2022). Here the former position refers to the plain meaning rule for disambiguation, as vehicle is not normally associated with chicken coop. However, the latter referred to the purpose for which the law was made (purposivism), alongside collocational features of the statute, such as wheels situated specifically with pneumatic for the vast majority of the text.
This is just a brief introductory example of the analysis that I will conduct in the next sections. In fact, I will be looking at linguistic elements of ambiguity in a contemporary legal text, where the cost of misinterpretation is considerably higher (Amran, 2020), compared to one of Garner v. Burr (Shardimgaliev, 2016). The following case, the Italian government’s decree of the 26th of April 2020 (Presidente del Consiglio dei Ministri, 2020) on the global pandemic, allows for the observation of the linguistic phenomenon of vagueness in legal text, and more broadly of the relationship between the law, the professionals of the field (journalists and legislators) and the citizens.
More specifically I will look into:
a) the linguistic features of ambiguity;
b) potential linguistic strategies for disambiguation of text
c) the advantages and disadvantages of vagueness from the point of view of laypeople and of professionals;
In the final section, I will outline the state of the legal language system, informed by the analysis of linguistic features of vagueness, among an increasing claim for simpler legal language (Assy, 2011). As Assy suggests, the agenda to make legal language simpler might not be a proper answer, especially in light of the already problematic ambiguous linguistic features of the law.
“I congiunti”, vagueness in the legal language during the 2020s global pandemic
During the Global Pandemic of the early 2020s, legal language had to rapidly adapt to the communicational needs, imposed by the crisis (Trzaskawka & Kic-Drgas, 2022). Governments needed to issue laws regulating their countries, in order to navigate life during the outbreak of the virus. The law’s adaptation to this new context mostly consisted of the implementation of neologisms and borrowings from other fields, such as medical and journalistic (Trzaskawka & Kic-Drgas, 2022). However, legal language likely employed linguistic markers of ambiguity in a strategic fashion, in order to counter the rapid and complex situations, which arose from the pandemic. A potential example of this situation can be found in the DPCM, a decree from the Prime Minister (PM) of Italy, issued by PM Giuseppe Conte on the 26th of April 2020 (Presidente del Consiglio dei Ministri, 2020). The DPCMs were a constant form of communication between citizens and the government during the most active moments of the outbreak (e.g. Amran, 2020). Their main purpose in this period was to continually provide information on the situation and issue new regulations on how citizens needed to get on with life (Amran, 2020). In this specific section of the April 26th, 2020 statement, under Article 1, Section a, the DPCM addresses the regulations on travel during a calmer moment of the first wave of the pandemic. In fact, besides other reasons for travel, visits to “relatives” [in Italian, congiunti] were now allowed again.
Article 1, Section a of the Italian government’s emergency DPCM of the 26th of April 2020 (Presidente del Consiglio dei Ministri, 2020).
"only movement motivated by proven work needs or situations of necessity meaning health reasons are permitted and travel to meet relatives [congiunti] is considered necessary as long as the ban on gatherings and interpersonal distancing of at least one meter are respected and respiratory protections are used;…"[1]
However, as many nationwide newspapers suggest, the meaning of the word “congiunti” is quite vague and up for interpretation (cf. Ziniti, 2020; Busani, 2020). In fact newspapers took it upon themselves to better explain to citizens the meaning of the law. Ziniti (2020) in her heading defines the term relatives as a “rebus” meaning an enigma, a puzzle from the government during a moment of emergency. First of all, the word “congiunti”, and its English translation relatives, allow for a brief premise on translation. No type of translation, especially interlingual translation, ever produces a perfect mould of the original text: some nuances are lost, and others are added (Chroma, 2011). The noun relative in the Cambridge dictionary is defined as a person bound by blood connection such as a family member (Cambridge Dictionary, n.d.). The most immediate correspondent of this word and meaning in Italian is not congiunto (which is not even mentioned) but parente as the bilingual Cambridge dictionary suggests (Cambridge English-Italian Dictionary, n.d). According to Treccani, the Italian monolingual dictionary, congiunto’s main grammatical function is that of an adjective which means “to be united” (Treccani, n.d). Only secondarily it is mentioned also in its noun form, meaning “bond based on blood connection”. Therefore, from the adjective’s point of view, this word would indicate all those whom a citizen is united with or shares a bond of any kind. From the noun’s perspective, congiunti in this context assumes the meaning of relatives. This phenomenon of a word (e.g. congiunti) possessing two or multiple meanings, which are distinct when activated in a text yet share a semantic overlap, is called polysemy (Hemel, 2023). Hemel states that this is one of the features of linguistic ambiguity that can be found in both lay and legal language. However, in the legal context, the misinterpretation of polysemy can have serious consequence (Scotto di Carlo, 2013), such as in the scenario of the global pandemic (Ziniti, 2020; Busani; 2020).
By applying the plain meaning rule, which states that the most common meaning of the word should be considered as the final interpretation, congiunti would assume the meaning of “bonds of any kind”. To further confirm this view, more information was supplied by the press, informed by the government’s extra documentation (Ziniti, 2020). In fact, Ziniti refers to an additional document by the government, issued in order to explain the meaning of congiunti. Both Ziniti and Busani reported that the government further specified that the ambiguous term means “stable and emotionally important relations”[2]. Even though this is not direct intertextuality, as the further documentation is not indexed in the DPCM’s text, both the press and the extra government document act as elements for the disambiguation of the article. Therefore, the external and further texts can be considered elements of disambiguation strategies, closely related to intertextuality. Alongside this additional extra-textual clarification, which adds more limits to congiunti, the word is also defined by further syntactic elements, such as the conditional clause that follows the word (as long as): to respect the distancing measures and gathering ban. Therefore, the “final” interpretation of the word comprehends bonds beyond family, however, defined by a certain level of emotional importance, consistency and respectfulness of the safety regulations.
As Amran (2020) suggests, however, this interpretation of congiunti, even when disambiguated and further defined by other texts, is still far too ambiguous. The implementation of the law mostly depends on the moral judgment of the citizen and does not allow for the legal system to function more effortlessly in times of crisis (Amran, 2020). Both Amran (2020) and the newspaper articles (Ziniti, 2020; Busani, 2020) highlight the disadvantages of this ambiguous legal writing. It does not allow the law to be enforced efficiently and it is non comprehensible to citizens. As Endicott (2022) states, the law’s principal aim is action: it strives to enforce rules and carry out punishment to regulate the life of a community. However, in order for the law to be put into action, it must be expressed, communicated, and understood by the community (Assy, 2011). Therefore, if a law fails to accomplish both of its aims, it becomes potentially useless. In this scenario, the DPCM fails to address both the needs of the law: enforcement and comprehension. However, Amran concludes their article on a different note, that such ambiguity was put in place purposefully. This would appeal to Hemel (2023), that polysemy is often enacted to further an agenda. Potentially, using an ambiguous linguistic feature was a conscious choice to alleviate social tension from the difficult conditions and allow for more personal freedom, as Amran concludes. This might explain why a more precise word such as the Italian translation of “family” or “relatives” might have not been considered for this decree. There might have been a potential fear that using the expression “friends and family” might have led to undesirable effects for the regulation of the pandemic, such as gatherings. Amran’s reflection might suggest that the proper approach to this text might not be textualism, but purposivism. Looking at the disambiguation strategies and the “final” interpretation of the word and the law, it is likely that its true meaning resides in the purpose for which this law was made.
The state of the law
After looking into an example of vagueness in legal language it is clear that this phenomenon is more complex than just being a mistake or flaw of the system, as it can be purposefully exploited (Hemel, 2023). However, the advantages of creating spaces for interpretation have considerable disadvantages as well, as it becomes an issue both for citizens and law enforcement alike (Scotto di Carlo, 2013; O’ Connor, 1979). It compromises the main aims of the legal system, which are to be enacted and functioning, as well as comprehensible to both citizens and professionals (Endicott, 2022; Assy, 2011).
Addressing the latter, the issue of comprehensibility of the law has been a contended topic in the legal context, as it is mostly linguistically inaccessible to the vast majority of people (Assy, 2011). Many linguistic features, also present in the Italian decree example, have been indexed as responsible for this phenomenon. Just by observing the excerpt text of the DPCM, most of the features that make legal language inaccessible are present (Kaplan, 2020): its length (4 lines for one sentence), the passive form (e.g. are permitted) which increases verbosity, archaic Italian language (e.g. purchè), which can create distance between the reader and the text. Beyond these features, a further element of the complexity of the law is its use of linguistic vagueness, as the analysis of the DPCM suggests. In recent years, there have been increasing claims to challenge the issue of comprehensibility of the law by implementing plain language (Assy, 2011). However, as Assy suggests, reducing verbosity, length, technical terms, and so on, would not reduce the issue and it might even make it worse. Lay language compared to the law, beyond reduced technicality and linguistic complexity, uses even more vague terminology, thus augmenting the phenomenon of ambiguity (Assy, 2011). This would result in even further difficulty in the interpretation phase, not only for citizens but also for professionals. Vagueness in the legal language, as it is already present and creating dilemmas in the system, acts as a counterclaim for enacting plain language. In other words, the law is stated in a complex way (verbosity, length, etc.), as the constitutive elements of language (e.g. polysemy) already make it difficult for the law to be precise and functioning. Potentially, the accusations of length and verbosity could be motivated by the fact that a lot of detail is needed to reduce the impact of linguistic ambiguity. Implementing even more vague structures and terms would increase even more the disadvantages already present in the legal system (Assy, 2011). Thus the state of the law is a complex one, full of paradoxes (technicality and plain language) and innate linguistic phenomena (linguistic markers of vagueness), with which the legal system constantly has to deal with. This does not eliminate the issue of comprehensibility of the law, but linguistic vagueness provides a good enough explanation that plain language is not the answer. Plain language would create further issues and impede the law from fulfilling its aims: to act and communicate broadly and precisely, in a constantly changing reality, such as in the case of the 2020s global pandemic.
References
Amram, D. (April, 2020). Incontrare i congiunti" ai tempi del COVID-19. Articolo29. http://www.articolo29.it/2020/incontrare-congiunti-ai-tempi-del-covid-19/.
Assy, R. (2011). Can the Law Speak Directly to its Subjects? The Limitation of Plain Language. Journal of Law and Society, 38(3) 376-404. ISSN: 0263-323X
Busani, A. (2020, April 27). Coronavirus, ecco chi sono i «congiunti» che si potranno incontrare dal 4 maggio. Il Sole 24 Ore. https://www.ilsole24ore.com/art/coronavirus-ecco-chi-sono-congiunti-che-si-potranno-incontrare-4-maggio-ADAsjyM
Cambridge Dictionary (n.d.). Relative. In dictionary.cambridge.org dictionary. Retrieved December 11, 2023 from https://dictionary.cambridge.org/dictionary/english/relative
Cambridge English-Italian Dictionary (n.d.). Relative. In dictionary.cambridge.org dictionary. Retrieved December 11, 2023 from https://dictionary.cambridge.org/it/dizionario/inglese-italiano/relative
Chandra Sekhar Rao, V. (2017). A Brief Study of Words Used in Denotation and Connotation. Journal for Research Scholars and Professionals of English Language Teaching, 1(1) 1-5. ISSN: 2456-8104
Chroma, M. (2011). Synonymy and Polysemy in Legal Terminology and Their Applications to Bilingual and Bijural Translation. Research in Language, 9(1), 31-50. DOI: 10.2478/v10015-011-0004-2
Endicott, T. (2005). The Value of Vagueness. In,V. K. Bhatia, J. Engberg, M. Gotti & Do. Heller (eds.), Vagueness in nomative texts (pp. 14-30). Peter Lang. https://doi.org/10.1093/acprof:oso/9780199572380.003.0002
Endicott, T. (Spring, 2022). Law and Language. The Stanford Encyclopedia of Philosophy. Retrieved December 6, 2023 from https://plato.stanford.edu/archives/spr2022/entries/law-language/
Hemel, D. J. (2023). Polysemy and the Law. Vanderbilt Law Review, 76(4), 1067-1153. http://dx.doi.org/10.2139/ssrn.4264800
Kaplan, J. P. (2020) Linguistics and law. Routledge. https://doi.org/10.4324/9780429450020.
Lucy, J. A. (1997). Linguistic Relativity. Annual Review of Anthropology, 26, 291–312. http://www.jstor.org/stable/2952524
Morrison, H. (1930). Road Traffic Act 1930. Department of Transport https://www.legislation.gov.uk/ukpga/1930/43/pdfs/ukpga_19300043_en.pdf
O’Connor, W. J. (1979). Plain English. The Business Lawyer, 34(3), 1453–1458. http://www.jstor.org/stable/40686033
Presidente del Consiglio dei Ministri (2020, April 26). Decreto del Presidente del Consiglio dei Ministri. https://www.governo.it/sites/new.governo.it/files/Dpcm_img_20200426.pdf
Scotto di Carlo, G. (2013). Vagueness as a Political Strategy: Weasel Words in Security Council Resolutions Relating to the Second Gulf War. Cambridge Scholars. ISBN: 1-4438-4657-0
Shardimgaliev, M. (2016). Grice’s theory of communication and interpretation of law. Ephemeris, 16(1) 48-67. https://digitalworks.union.edu/ephemeris/vol16/iss1/4
Treccani (n.d.). Congiunto. In treccani.it dictionary. Retrieved December 11, 2023 from https://www.treccani.it/vocabolario/congiunto/
Trzaskawka, P. & Kic-Drgas, J. (2022). Penetration of COVID-19 Related Terminology into Legal, Medical, and Journalistic Discourses. International Journal for the Semiotics of Law, 35(3) 937-960. DOI: 10.1007/s11196-021-09881-3.
Ziniti, A. (2020, April 27). Coronavirus, Conte sul rebus congiunti: "Affetti stabili o parenti, non gli amici". Mobilità vietata verso le seconde case. La Repubblica. https://www.repubblica.it/politica/2020/04/27/news/coronavirus_il_rebus_del_nuovo_decreto_chi_sono_i_congiunti_che_e_possibile_vedere_il_giallo_delle_seconde_case_dal_test-254997521/
Appendix
Article 1, Section a of the Italian government’s emergency DPCM of the 26th of April 2020 in original language:
“sono consentiti solo gli spostamenti motivati da comprovate esigenze lavorative o situazioni di necessita' ovvero per motivi di salute e si considerano necessari gli spostamenti per incontrare congiunti purche' venga rispettato il divieto di assembramento e il distanziamento interpersonale di almeno un metro e vengano utilizzate protezioni delle vie respiratorie;…”
Presidente del Consiglio dei Ministri (2020, April 26). Decreto del Presidente del Consiglio dei Ministri. https://www.governo.it/sites/new.governo.it/files/Dpcm_img_20200426.pdf
[1] This is an unofficial translation of the decree. For the version in original language see Appendix.
[2] “Affetti stabili” (Ziniti, 2020).
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