Linguistic (in)defi niteness of legal prescriptions

Abstract

The article raises the issue of the definiteness and, respectively, the indefiniteness of legal prescriptions. Definiteness is a feature of law which contributes to its foreseeability. The subject matter of the study consists in the linguistic indefiniteness and, partly, its opposite – the overly definiteness of legal prescriptions. A distinction is made between linguistic and functional indefiniteness. The indefiniteness is linguistic where it is due either to unclarity or to the use of terms of a rather abstract or ambiguous content. It is functional where there exist concurrent principles and contradictory methods of interpretation that the enforcement body must choose among. The factors on which the (in)definiteness of legal prescriptions depends are pointed out. Numerous examples are given in the field of civil and criminal law that illustrate the issue. A conclusion is drawn that it is necessary to seek a compromise and a balance between the generalization and the specification of factual circumstances, and to enhance the definiteness of legal prescriptions, yet, this should not paralyze the effect of the rules.