Legislative Materials as a Tool for Solving Grammatical Problems in Statutory Interpretation

1. Legislative materials in interpretation of the law

Legislative materials, treated as a potential tool in the interpretation of the law, have arguably been one of the most discussed issues in global legal theory over the past few years. The discussion on ways of using legislative materials and the role they play – or should play – in the interpretation of the law is taking place in numerous countries² across Europe (Germany, Sweden, the UK, France, Spain), but also outside the European culture: in the United States (which not only started this discussion, but in fact continue to keep it at a very high level³), as well as in Australia, Canada, New Zealand, or in Asian countries. The ongoing debate, which involves not just interpreters, but also legislators⁴, is a trigger for discussions on the value of legislative materials for interpreting the law. Legislative materials (also referred to as preparatory materials or travaux prepara- toires) usually appear in the context of interpretation of the law under the name of legislative history. The term was coined in the English-language literature, where its

use is widespread⁵. Conventionally understood, legislative history is a set of materials – in the form of documents – produced or commissioned by the legislator in the course of drafting and passing of a piece of legislation. In this category – as citations in court decisions suggest – documents deriving from the parliamentary stage of the law-making process are the most important for statutory interpretation. Legislative history is used in the process of interpretation in such a way that the interpreter accesses bills, explanatory statements, or parliamentary debate records and other legislative documents in order to develop, accept, or reject interpretive hypotheses. The objective is to obtain information on the historical intentions of the legislator that led to the introduction of a particular provision or instrument⁶. Poland has not introduced, either by statute or through established interpretation directives, any rules for using legislative materials. Therefore, there are generally no directives that require or prohibit their use. As a rule of thumb, the Polish legal tradition has allowed the use of any materials which may prove useful for interpreting the law, although it is obvious that some interpretation tools will be more culturally valued and recommended than others. The use of travaux preparatoires in the process of interpretation of the law has, until recently, only received marginal interest in the Polish literature⁷, and yet their popularity in judicial decision-making is surprising: legislative process materials constitute an important interpretive tool, used with increasing frequency⁸. It should be emphasised that this is partly due to the fact that over the past few years the conditions of using legislative materials have significantly improved owing to free, relatively easy, and convenient access via the Internet. Legislative materials are used in the process of statutory interpretation in several interpretation situations⁹. In Polish case law they are deployed in the following four most frequent situations: to confirm a specific interpretation, to select one from among several interpretation hypotheses, to supplement the meaning of the interpreted phrase, and to depart from the literal meaning. Using legislative history in order to choose from among several interpretation hypotheses appears to be the least controversial use of this tool¹⁰. The choice has to be made when the interpreter is dealing with ambiguous wording of a provision of the law¹¹

or with the so-called legal classification¹². Whenever this is the case, referring to legislative materials makes it possible to select one of several meanings of a legal text and reject the other ones. Legislative history is frequently employed to confirm a line of interpretation¹³. In many judgments, this argument merely serves to reinforce and provide a better justification for an interpretation hypothesis, or to ensure that it is correct (or unequivocal)¹⁴. Nevertheless, the confirming function of legislative history is not limited to merely strengthening the argumentation in favour of a specific, previously selected, interpretation hypothesis. In fact, it frequently becomes a litmus test for clarity as in many cases a prima facie unambiguous text, once analysed in the context of its legislative history, loses its clarity¹⁵. The third way of using legislative history is the so-called supplementation. The justification for this function of legislative materials is the conviction that the legislator has included in them a number of hints for courts – for instance hints on how to construe details which have not been expressly set out in the text – and that they can be treated as a vehicle for conveying these additional details¹⁶. In order to correctly interpret a text, one sometimes needs to simply supplement it with these details. The most frequently recognised category of problems where interpreters resort to legislative history in order to “supplement” the meaning is vagueness¹⁷. The job of the interpreter is then to decide whether a case he or she is considering can be identified as a vague expression¹⁸. The last situation where lawyers resort to legislative history is when they depart from the literal meaning, or interpret against the wording. This encompasses cases when the linguistic meaning of a legal text is clear, however the interpreter rejects it, and decides in defiance of it. Interpretation against the wording means in fact correcting, amending, and refining the text of an instrument through interpretation. Therefore, the interpreter accepts a fiction and decides as if the wording of the instrument were different. This is arguably the most interesting category of uses of legislative history. Departures from the

linguistic meaning are the most controversial interpretation situations and, considering the uncertainty that they entail, they give rise to concerns among the addressees of the decision implementing the law¹⁹. In the light of the deeply ingrained belief that the limits of the law are defined by “the four corners of a sheet of paper”²⁰, such manifest cases of deviating from the letter of the law attract attention of both interpretation practitioners and legal scholars specialising in interpretation²¹. On the other hand, if departing from the literal meaning is inevitable, it appears that legislative history ought to provide the strongest justification for the decision to do so: the context created by legislative history, which comes directly from the legislator, seems to best justify abandoning the imperfect wording of the instrument.

2. Grammar in statutory interpretation

The use of legislative materials in the process of statutory interpretation will be illustrated by problems related to the grammar of legal texts. This category of interpretation problems is rather under-examined in the Polish literature on the theory of law, and as such requires a short introduction. Grammar is a set of morphological and syntactic rules, i.e. rules governing the creation and combination of words (and smaller units of language – the so-called morphemes) into larger structures²². Hence, grammar is responsible for the relations occurring between words. Correct detection of these relations is a necessary condition for interpreting any text, including a legal one. It is not surprising, therefore, that any vagueness in this respect should cause interpretive doubts. An examination of court decisions reveals a whole spectrum of grammar-related issues: grammatical cases, numbers, and gender of nouns and adjectives; tenses, types, voice and forms of verbs; participles; pronouns; prepositions; word order; relations between the clauses of a complex sentence, as well as conjunctions and punctuation marks, which are particularly problematic²³. It is not without reason that in case law, the term ”grammatical interpretation” is used alongside “linguistic interpretation”²⁴.

Lexical elements are responsible for most of the difficulties in interpreting legal norms. The syntactic structure of contemporary norms, the logical relations between their respective parts, and their style, are usually simple, and only on rare occasions do they make it difficult to understand the legislator’s requirements²⁶.

This conclusion was later shared by Jerzy Wróblewski:

Absence of separate syntactic provisions of the law entails absence of interpretive discrepancies that stem from the use of these rules and means that fundamental issues in interpretation concentrate primarily on determining the meaning of particular words and not their complexes²⁷.

Similar views have been expressed in more recent American literature: “Most battles over legal interpretation are battles about the meanings of words. Grammatical rules typically remain in the background unnoticed”²⁸. This is why publications devoted to legal interpretation usually do not go beyond banal statements that when interpreting legal texts one ought to follow the general syntactic rules of the national language, and that the grammar of legal texts is not different from general grammar²⁹. Lack of attention to the grammar of legal texts can indeed appear surprising, given the enormous interest that other aspects of legal language receive in the theory of law³⁰. For instance, significant attention has for some time now been given to the use of dictionaries in the process of interpretation³¹. We can therefore speak of the primacy of

25 It is pointed out, among other things, that syntactic ambiguity – alongside lexical ambiguity and vagueness – is the main source of interpretive doubts, see K. Opałek, J. Wróblewski, Prawo: Metodologia, filozofia, teoria prawa [Eng. Law: Methodology, philosophy, legal theory], Warszawa 1991, pp. 253–255; Z. Ziembiński, Logika praktyczna [Eng. Practical logic], Warszawa 1996, pp. 237; J. Woleński, Logiczne problemy wykładni prawa [Eng. Logical problems of legal theory], Kraków 1972, p. 80.

lexis over grammar in the theory of legal interpretation. This primacy stems from the practice of law implementation wherein grammatical doubts are indeed significantly less frequent than lexical doubts³². This, however, does not change the fact that the former do in fact emerge. In the part of the article that follows we shall present several examples of judgments where doubts caused by the grammatical structure of a provision are solved using legislative materials. In doing so, we shall limit ourselves to problems of syntactic nature and skip morphological problems (i.e. problems related to grammatical categories of words)³³.

3. Selected judgments

3.1. Conjunction oraz (and, as well as)

We shall begin with a case where interpretive doubts resulted from the fact that the legislator had used the conjunction oraz. Polish conjunctions used in legal texts, such as i (and), oraz (and, as well as), lub (or, and), albo (or) have long caused problems in judicial decision-making and attracted attention of legal theorists. There is a widely known proposal that the meaning of conjunctions and, consequently, syntactic relations within a sentence, should be established based on the meaning of the corresponding truth-functional connectives in formal logic³⁴. This entails a number of problems. First of all, using conjunctions as exponents of specific logical relations is a matter of convention adopted among logicians, and one not used consistently at that. This convention does not bind the legislator³⁵. Secondly, it is not uncommon for the same conjunction to express more than just one logical relation, e.g. conjunction i (and) is attributed in logic a conjunctive, enumerative, and synthesising functions³⁶. Thirdly, the logical meaning of a conjunction is often different from the meaning it has in common parlance, and from the meaning it is assigned by linguists. This stems from the fact that “semantic relations (and the hidden reasoning behind these relations) expressed through syntactic constructions are far more complicated than those described by logic”³⁷. Fourthly, many sentence conjunctions do not have established meanings in logic. Examples include Polish conjunctions a (and, while, whereas), tudzież (and), chociaż (although). The provision we shall discuss confers certain rights on persons “who worked for at least ten years at a commercialised state-owned enterprise and its predecessor”³⁸. The applicant had worked for 10 years at the predecessor of a commercialised enterprise, however, his employment had terminated before the commercialised enterprise was

established. Hence, doubts arose as to whether he was eligible for the rights set forth in the provision. At the level of language, it all boiled down to determining the relation between the two clauses conjoined by the conjunction oraz (and). Courts of the first and second instances dismissed the action, holding that obtaining the right was contingent upon working at both the commercialised enterprise and its predecessor. The courts argued that this followed from the use of conjunction oraz (and), which is a conjunction connective, in the wording of the provision³⁹. The Supreme Court⁴⁰ agreed with this reasoning, pointing out, however, that “it cannot be held that it follows from the linguistic interpretation of the analysed provision” as “the conjunction was used therein somewhat unfortunately”. The Court pointed out that recognising the conjunction oraz as a conjunction connective would lead to unacceptable outcomes. More specifically, it would mean that in order to be eligible for the right it is not enough to have worked at either the predecessor of the commercialised enterprise or the commercialised enterprise, but at both. The Court held that this line of reasoning would be a misinterpretation, given the strong arguments “that follow from the systemic and historical interpretation and from the motives presented by the drafter of the current wording of the provision”. The explanatory statement to the draft introducing the provision’s wording as it is analysed herein makes it clear that “the intention was to maintain the prerequisite criterion of eligibility to acquire shares free of charge, which is associated (...) with the commercialised enterprise”. As a result, the Court held that the entitlement should apply to employees who had worked for at least 10 years at the commercialised enterprise or cumulatively at the commercialised enterprise and its predecessor. We are therefore dealing with a case of departing from the literal meaning of the conjunction oraz. Admittedly, the meanings of coordinating conjunctions (i, oraz), as identified in the science of law, are different⁴¹, and none of them corresponds to the meaning adopted by the Court in the case discussed above. As a matter of fact, the Court denied the conjunction oraz the role of both conjunction connective (contrary to what courts of the lower instances argued) and non-exclusive disjunction (contrary to what the applicant had argued), deciding instead that the wording of the provision should be interpreted entirely using extra-lingual factors, derived predominantly from legislative history.

3.2. Prepositional phrase w tym (including)

In the next case, the point of contention was not a conjunction, but the prepositional phrase w tym (including)⁴². The law stipulates that “municipal police shall only become vested with the power of a public prosecutor when, within its remit, including in the course of investigation, it revealed petty offences and petitioned for punishment”⁴³. The question that arose was whether municipal police could act as a public prosecutor in case

of a petty offence that, although it was revealed in the course of activities carried out by its officers, in its substance went beyond the statutory scope of activity of this service. The Attorney General regarded the prepositional phrase w tym (including), used in this provision, as the main argument in favour of a negative answer⁴⁴. The analysed provision was introduced into the statute by means of amendment⁴⁵. In an earlier version of the draft, the expressions “within its remit” and “in the course of investigation” were conjoined using the conjunction lub (or). However, at later stages of the legislative work a change was made and lub (or) was substituted by w tym (including); the change was described as “an editorial change” and no broader discussions ensued⁴⁶. The Attorney General argued that, as a matter of fact, the change was substantial. The conjunction lub (or) would mean that both of the quoted expressions would constitute two alternative grounds for awarding municipal police the power to bring prosecutions. Therefore, municipal police officers would be able to appear before courts both in cases involving petty offences they revealed within its remit and in cases involving petty offences they revealed in the course of the investigation. As a result of the amendment, the investigation must fall within the scope of activity of municipal police. This means that there was only one condition (“within its remit”), which was described in more detail (“including in the course of investigation”). In the opinion of the Attorney General, the “teleological and systemic interpretation should not negate an unambiguous outcome of correctly conducted linguistic interpretation and lead to unacceptable creation, by means of a court judgment, of a desired – yet not expressed in the provision – legal norm”⁴⁷. The Supreme Court rejected the Attorney General’s argumentation. The Court first observed that, while the linguistic interpretation could not be omitted, it would be useful to:

first, as part of the historical interpretation, analyse the process of passing of the amendment (...) so as to prove that (...) the objective of the changes introduced by the amending statute was, among other things, to extend municipal police’s power to bring prosecutions⁴⁸.

A thorough analysis of the legislative process led the Court to conviction that the legislator indeed believed substituting lub (or) with w tym (including) was merely an editorial change. The MPs voted:

believing – and the belief was reinforced by explanations of the MP-rapporteur – that the introduction of the phrase “w tym” (including) into Article (...) in place of the originally proposed word “lub” (or) was not a substantive amendment leading to a different than originally planned regulation of the power to bring prosecutions vested in the entities specified in the provision⁴⁹.

As a result, the Court held that “it was a legible intention of the legislator to award the entities listed in Article 17(3) of the Petty Offences Procedure Code extensive powers to bring prosecutions”, in line with the earlier, broadly discussed version of the draft.

not so much to indicate that “something” falls within “something” else (…), but rather to make a certain phrase more specific, which is also the case with words również (also), także (as well), włącznie z (including), w szczególności (in particular) (e.g. “the bouquet was made of flowers of various colours, including red ones”)⁵⁰.

As a result, the Court argued that the results of the linguistic interpretation did not contradict the conclusions developed with the help of extra-lingual interpretation tools, including in particular legislative materials. We are therefore once again dealing with a case of departing from the literal, statutory meaning. This time, however, it is even more marked. Unlike in the previous case, the meaning of the prepositional phrase w tym (including) can be considered (in the context given) as entirely unambiguous. The sentence proposed by the Court seems a sufficient confirmation of this. “A bouquet made of flowers of various colours, including red ones” is an excellent example of the inclusion relation that the Attorney General argued in favour of. The meaning assigned to the provision by the Court may, on the other hand, be expressed by a hypothetical sentence: “A bouquet made of white flowers, including red ones”. This clearly shows that the meaning of the phrase w tym (including), obvious to each language user, was significantly modified by the Court in order to achieve the outcome devised by the legislator. This argumentation style, in which the interpreter makes every effort to convince that a given hypothesis does not contradict the linguistic meaning, and that it “falls within” this meaning, etc., is very characteristic of the Polish judicature. It allows the courts to conceal law-making solutions and “hide” behind the construct of the language limits of interpretation. The benefits are rather limited, as even the best concealed law-making activity tends to stand out, and – what is more – the average citizen may feel disoriented and insecure when faced with this type of arguments. It appears that nothing justifies keeping the appearance that departing from, or interpreting against, the literal meaning is inadmissible. In the process of application of the law, legitimacy and consistency are higher values than compliance with faultily expressed (especially in the light of legislative materials) letter of the law.

3.3. Syntactic structure of in-line enumerations

The next example is connected with the problematic syntactic structure of enumerations included in the wording of a provision. Provisions which encompass the so-called in-line enumerations are particularly conducive to syntactic ambiguity, i.e. a situation wherein the rules of syntax allow for more than one correct interpretation of a phrase or sentence⁵¹. The provision in question provided for the possibility of awarding a building licence in specialties listed in points 1–6, including, among others, “4) installation of

heating, ventilation, gas, water and sewage networks, systems and devices”⁵². Doubts arose as to whether the fragment quoted above concerned one specialty whose scope encompasses all the areas listed, or several separate specialties. Given the interpretive difficulties, the case was referred to seven justices of the Supreme Administrative Court⁵³. When referring the case, the Court sitting as an ordinary panel provided several interesting arguments in favour of the first option. First of all, the singular number of the noun “installation” suggested that it was a single specialty. Secondly, during the legislative process it had been mentioned that the number of specialties should be reduced. The explanatory statement accompanying the bill stated that construction practice did not confirm the need for as many as fourteen narrow specialties (as it was the case in the past), and so it was legitimate to reduce the number to four (architectural-building, construction-building, sanitary installations, and electric installations specialities). Although at a certain stage of the legislative work a colon was used after the word “devices”, the change “was neither discussed nor explained, which would suggest that it was not meant to change the original conception included in the draft bill”. Thirdly, the ministerial regulation issued on the basis of this statute explicitly provided for just one specialty, whose scope encompassed the five disciplines⁵⁴. It is indeed difficult to agree that “the minister issuing the regulation was not familiar with the wording of the Act or misinterpreted its provisions, as he was the author of the bill and the regulation”⁵⁵. The Court did not find these arguments sufficient. At the outset, the Court pointed to the syntactic ambiguity of the provision. Despite the use of the singular number denoting the type of specialty (installation), the Court opined that:

it can be argued that the use of the singular number at the beginning of this point refers solely to its relation with the words that follow the colon, i.e. to the relation between the first (general) part of the designation of the specialty and the areas of specialist activity in the building industry subsequently listed separately (and thus autonomously) after the colon⁵⁶.

The Court furthermore pointed to the punctuation used in the enumeration:

the nouns used after the colon are not in alphabetical order, and there is the conjunction “and” as well as commas used in various places between them. This makes it legitimate to assume that there is conjunction between the words “water and sewage” and separation between the other ones, since they are separated by commas, and the conjunction “and” at the end of the sentence does not have a conjunctive function⁵⁷.

After discussing the syntactic structure of the sentence, the Court proceeded to a systemic and teleological interpretation, and in doing so resorted to the legislative history:

Assuming that the provision in question concerns several specialties and not just one does not interfere with the realisation of this objective.

On the other hand, the emphasis placed in the versions of the bill on ensuring greater versatility of building specialties (...) cannot be decisive in, (...). While the legislator intended to reduce the number of specialties in comparison to the earlier legislation, it does not necessarily follow that the intention was to have just one specialty (...)⁵⁹.

Finally, the Court presented its decision as a form of protection of the principle of freedom of economic and professional activity, guaranteed by the Constitution. At this point, it should be mentioned that maintaining the one-specialty view would mean that the party in the case would lose their licence. The case discussed above should be analysed as a situation of choosing between two interpretation hypotheses, each of which – given the syntactic ambiguity – was admissible from the perspective of the rules of language. One of the hypotheses was corroborated by explicit declarations by the legislator as to the need for a reduction in the number of specialties. The other one, in the opinion of the Court, better realised the objective of the statute, as inferred from the explanatory statement to the bill. We can conclude that the Court decided to achieve the objective intended by the legislator, but refused to apply the means foreseen for achieving it. It is furthermore worth noting that Supreme Administrative Court Justice Andrzej Gliniecki appended a dissenting opinion to the resolution discussed above. Invoking the principle of primacy of the literal interpretation, the justice argued that “the interpretation process is a mirror image of the drafting process”, and that “legal texts are drafted in compliance with the rules of grammar and syntax of the Polish language”. He then made references to several publications devoted to the grammar of the Polish language⁶⁰, and carried out a detailed syntactic analysis of the provision in dispute. The analysis led him to conclude that “this is a description of one «installation [specialty] regarding networks, systems and devices»”, and the specialty encompasses not just four, but in fact nine disciplines⁶¹. This view is corroborated by the wording of the provision – all of the disciplines have been listed in one point. Last but not least, the justice presented a number of extra-lingual arguments showing, beyond any possible doubt, that the legislator’s intention was to decrease the number of specialties⁶².

The next example also concerns enumerations, this time columnar enumerations, which on very rare occasions cause interpretation problems⁶³. The provision stipulates that the concept of “contribution payer” means, among others:

other (...) referring entities – in respect of individuals who receive scholarships during the period of education, internship, or vocational training – which are: (...) – research facilities, (…) [eighth indent – authors’ note] – career counselling and psychological counselling centres [twelfth indent – authors’ note] – entities using public Community funds and public domestic funds under project co-financing agreements or decisions specified in the law⁶⁴ [thirteenth indent – authors’ note]⁶⁵.

The question was whether a private higher education institution could be considered a contribution payer within the meaning of the provision. The court of the second instance excluded such a possibility, and the arguments it presented were very interesting. First of all, the court pointed out that the school in question could not be considered “a research facility” (eighth indent) as it did not meet the criteria laid down in the relevant statute⁶⁶. While it could be considered an entity “using public Community funds and public domestic funds” (thirteenth indent), a provision of the Legislative Drafting Principles, pursuant to which each indent should end with a comma, and the last indent should end with a comma, semicolon, or full stop, unless an enumeration ends with a shared part, applicable to all indents, stood in the way of treating it as such. Whenever this is the case, the comma, semicolon, or full stop should be placed after the shared part⁶⁷. Since the twelfth indent of the provision did not end with any punctuation marks, the court held that the wording that followed it constituted such a shared part, not another (thirteenth) indent. In the court’s words: “all entities listed in this provision (12 types) should be contribution payers and only to the extent that they use public Community funds and public domestic funds allocated for project cofinancing or decision”⁶⁸. The Supreme Court⁶⁹ called this argumentation into question and observed that, in the original wording of the statute, the twelfth indent was followed by a comma, which was subsequently omitted during one of the amendments (presumably by mistake). This is why the Court considered that “invoking the legislative drafting principles alone does not suffice to explain what entities are considered to be referring entities within the meaning of this provision”. In order to determine it, the Court conducted an extensive analysis of legislative history. To start with, the Court established that in the governmental amending bill the contentious provision was very concise and did not

include an enumeration of eligible entities. The wording of the provision only became more precise as a result of the work of a special Sejm committee. The Court quoted a lengthy statement delivered during one of the committee meetings by the deputy director of a ministerial department, which clearly showed that the objective behind the changes was to “ensure the fullest possible support for the youth, including graduates of all types of schools, so that they do not become unemployed”. In line with that objective, the phrase “other referring entities”, as used in the statute, should encompass all beneficiaries who, as part of an EU project, undertook measures intended to activate unemployed youth. This included higher education institutions of various types, too. Ultimately, the Supreme Court overturned the judgment and referred the case back to the court of first instance, since misinterpretation of the contentious provision led to significant inadequacies in the findings. We are therefore once again dealing with a choice. One of the interpretation hypotheses is confirmed by a drafting rule laid down in the Legislative Drafting Principles. The other one appears to be better justified in the light of the legislative history, i.e. given the objectives the legislator intended to achieve through the provision under dispute. Both types of arguments, namely the Legislative Drafting Principles and the legislative history, have been provided by the legislator, which makes the choice controversial. Interestingly, the courts considering the case concentrated on the structure of the provision so much that they made very little reference to the wording of the presumed thirteenth indent, which describes an attribute: “using…”, but does not specify the entity to which it refers. This makes it different from the other indents within this provision, which clearly denote institutions, organisations, centres, etc. This is, without a doubt, an argument in favour of acknowledging, contrary to the Supreme Court’s decision, that the presumed thirteenth indent merely constitutes a shared part referring to the previous elements of the enumeration.

3.5. Absence of a comma

The last case to be discussed here concerns punctuation. Punctuation is defined as “the rules governing the use of punctuation marks, i.e. auxiliary graphic signs dividing a written text into sentence units (expressions) and their parts”⁷⁰. In the Polish language, punctuation is primarily subordinate to syntax⁷¹, which justifies discussing it in this article, although, strictly speaking, it does not constitute a branch of grammar⁷². The punctuation system used in the Polish language consists of ten signs⁷³. Of those, commas account for the most problems. Arguably the most famous comma in the history of Polish legislation was the comma wrongly placed in Article 156(1)(2) of the Criminal Code of 1997. The provision was published in the Journal of Law in the following wording: “Whoever causes grievous bodily harm in the form of: (...) a serious illness that is incurable or prolonged illness

that is life-threatening (...)”⁷⁴. This version was included in the bill, which was then correctly passed by the Sejm. However, the version submitted by the Marshal of the Sejm to the President to sign was modified. Due to the insertion of a comma, the sense of the text changed as follows: “a severe illness that is incurable or prolonged, illness that is life-threatening”, allegedly “with the drafters’ knowledge and approval”. This wording was indeed consistent with the previous legislation⁷⁵. After the Code was published in the Journal of Laws, the President of the Council of Ministers noticed the discrepancy between the version published and the one submitted to the President for signature and – considering it to be a technical error – corrected it by means of a notice⁷⁶. The legal circumstances created as a result caused considerable doubts in the application of the law. The courts unanimously agreed that the placement of the comma influenced the meaning of the provision. In accordance with the version published, the constituent elements of the offence included, among others, causing a serious incurable illness and a prolonged life-threatening illness. On the other hand, the wording of the provision post-correction included the following constituent elements of the offence: a serious incurable illness, a serious prolonged illness, and a life-threatening illness. The first version significantly narrowed down the scope of penal responsibility of the perpetrator, as it excluded from penalisation instances of causing a life-threatening disease that was not prolonged. The courts initially applied the corrected version of the Code, maintaining that “it is not the courts’ task to review the legitimacy of correcting the wording of the provision (...) since the correction was made in compliance with the law”⁷⁷. The Constitutional Tribunal, having conducted a thorough analysis of the legislative history, determined that the corrected version did not correspond with the version passed in compliance with the legislative procedure and ruled that a fragment of the notice was unconstitutional⁷⁸. The judiciary thus became obliged to apply the provision in its original wording, which – as was already known – did not reflect the actual intention of the legislator. In this situation, the courts demonstrated far-reaching creativity, e.g. by arguing that it was not time that determined whether an illness was prolonged but “the invasive nature of a surgical procedure affecting an organ important for life”⁷⁹, or that “prolonged can also be interpreted as lasting for a period of several days”⁸⁰. The courts therefore departed from the obvious meaning of the adjective “prolonged”, but did not interfere with the syntactic structure of the sentence. Similar examples can be found in other judgments⁸¹.

The case discussed above shows that using legislative history does not always yield homogeneous results. Materials from the legislative process provided arguments both in favour of the literal interpretation of the text of the Code (as the comma was absent both during the parliamentary works and in the text passed by the Sejm), and against such an interpretation (as the Marshal of the Sejm, followed by the President of the Council of Ministers, with the approval of the drafters, considered that the version passed contained an evident error). For the Constitutional Tribunal, the legislative history confirmed that the correct and binding version of the Code was the one published in the Journal of Laws. On the other hand, for the courts hearing cases involving Article 156(1)(2) of the Criminal Code, the legislative history triggered departure from the literal meaning of the provision (more specifically – of the word “prolonged”). The multilevel controversy accompanying this case illustrates the need for further, in-depth research on legislative history in the application of law. On the other hand, the case in point shows the enormous importance of the context provided by legislative materials for the decision of the Constitutional Tribunal. Without familiarity with legislative materials, it would not have been possible to determine how the legislative process developed, which was of great importance for the case.

4. Conclusions – the text and what is “beyond the text”

We discussed five cases in which courts resorted to legislative history in order to resolve interpretation doubts caused by the grammar of a provision (conjunctions, sentence construction, and punctuation). Whereas a research sample of this size is insufficient for formulating decisive conclusions, it amply illustrates the problem discussed in the paper. The presented cases encompassed the situations of departing from the literal meaning, choosing from among two interpretation hypotheses, and confirming an interpretation hypothesis. They did not illustrate the situation of supplementing the meaning, which can be explained by the character of the interpretive doubts discussed in the article. After all, supplementation of meaning primarily concerns the situation of vagueness, which is characteristic of lexical problems, and sometimes also morphological ones (i.e. problems related to grammatical categories of words, such as the number, tense, aspect, etc.), but as a rule is not required in case of syntax-related problems. The particularity of the examples discussed in the text lies in the combination of intuition and grammar. Grammar is conventionally understood as a set of rules governing the formal correctness (grammaticality) of a sentence. Hence, these rules could be expected to always determine a single correct way of understanding a text. The examples analysed in the article prove that this is not the case. First of all, sometimes the rules of grammar allow for several, equally acceptable, interpretations of a sentence. Secondly, a line of interpretation derived from an unambiguous syntax may be challenged given other factors that influence the meaning. In the light of contemporary linguistic theories, this is by no means unusual. For instance, cognitive grammar – a highly influential theory developed by a US linguist Ronald Langacker – emphasises grammar’s subsidiary role vis-à-vis the communicative function of language, and analyses grammatical phenomena through their semantic motivation. The notion of grammatical correctness is replaced by the notion of conventionality (entrenchment)⁸². Grammar rules are perceived as a network of intertwined

construction schemas, abstracted from the actual examples of language usage⁸³. Understanding a language structure entails recognising that it constitutes a concretization of one of the schemas stored in the speaker’s mind. What takes place is a universal (and not merely linguistic) process of categorization. The choice (mental activation) of a specific schema does not result from a quasi-mathematical algorithm, but is made based on a number of diverse factors, in line with the neural network model. Those factors include the similarity to the target schema, the degree of entrenchment of the schema, but also the context⁸⁴, or expectations of the language user⁸⁵. This is, therefore, not an objective process, determined solely by the properties of linguistic units. It is entirely natural that a specific context may predetermine the process of categorisation of a certain structure so much that some, theoretically acceptable, ways of construing it will not be taken into account⁸⁶. The description above constitutes an attempt to reconstruct the cognitive processes that take place beyond the conscious mind of a speaker. In this sense, it does not directly apply to interpretation of the law in the strict sense, and does not offer justification for the decisions analysed in this article. Nevertheless, we do believe that knowledge of the “mechanics” behind these processes may be highly informative for lawyers. Langacker’s conception shows that grammar itself has a somewhat argumentative nature. Using a fortiori inference, we can say that if the syntactic structure at the level beyond consciousness is shaped by an array of factors, including those traditionally labelled as extra-lingual, these factors should gain more prominence in a conscious, in-depth analysis of a provision in the process of legal interpretation. Concluding, it is also worthwhile to invoke discussions on legislative history. One of the main veins of criticism of using legislative history as an interpretive tool focuses on the assertion that as a source external to the text of the legal instrument (extra-textual, coming from beyond the legal text), legislative history is unsuitable for interpreting the law ⁸⁷. This claim is justified in several ways, however the strongest emphasis is placed on the fact that “the ordinary citizen”, who is not a lawyer, should be bound only by legislative texts, as they constitute the source of his or her rights and obligations. The need to be familiar with legislative materials in order to correctly understand and interpret the wording of provisions of the law is perceived as a burden that exceeds reasonable expectations, and more importantly, the capabilities of a regular citizen. Textualists, who lead the way in this vein of criticism, compare practising the use of legislative materials to a trick used by emperor Nero, who placed his decrees high on

columns so as to make it difficult for citizens to get familiar with them88. Making the interpreter choose between using either the approved text or legislative materials is also – in the opinion of the critics – completely inconsistent with the ideals of democracy89. Consequently, the critics claim that the right context for the interpretation of the law is the context defined by the usual, plain meaning, whereas the legislative context should not be taken into consideration. Cases involving grammar-related problems prove that even the most precise legislative constructions cannot free a piece of legislation from the lack of precision. Hence, it is necessary to disambiguate the meaning of a text with the help of evidence derived from outside of the text itself, and the legislative context should play the leading role in that. In order to interpret a text, we simply have to use external contexts. The claim that the strongest proof of the legislator’s intent is the contents of the created text is arguably obvious. However, when the text causes doubts (becomes a subject of dispute), it is necessary to go beyond it.

88 According to Scalia, obliging citizens to know legislative materials external to the legal text means obliging them to interpret the text based on sources that are not only poorly available, but also not approved by the legislator. A. Scalia, A Matter of Interpretation: Federal Courts and the Law, Princeton 1997, p. 17; P.A. Rubin, War of the words: How courts can use dictionaries in accordance with textualist principles, “Duke Law Journal” 2010/60, pp. 173–174. 89 A. Scalia, A Matter…, p. 17.