On Intelligibility of Legislative Acts
The question whether our laws are understandable was already raised by the VIII Riigikogu, and it still remains topical.
Prof U. Mereste (MP) who initiated a special draft law on the intelligibility of legislative acts in order to start a discussion on the subject has made significant contribution to the debate. When analysing the issue, we discover the double nature of it: on the one hand, the problem is legal-philosophical, on the other hand – gnoseological. Philosophically, Lon L. Fuller has suggested that any law is intelligible by definition because the law that is not understood simply does not function or is not a law at all. Gnoseologically, the notion of “intelligibility” itself refers to the laws as object-textual phenomena, remaining itself at the meta-level of the “truth-grammar” (Russell-Whitehead paradox, Tarski, Gödel). Both theoretical prospects combined, we face the problem that the question of intelligibility of laws has to be observed by reference to the target group, i.e. to whom the law should be intelligible. The currently used reference criteria for target groups (e.g. “non-professional reader with high-school education”) are themselves questionable.
From the constitutional-legal point of view, the intelligibility of laws cannot be universal – there are always laws that somebody cannot (does not want to, is not motivated to, etc.) understand. On the other hand, any kind of professional group is not an adequate reference criterion either: the group’s expertise is valuable but socially it represents a special interest (lobbying) group outside the routine parliamentary procedure.
Thus, the intelligibility of legal acts, which is an internally paradoxical theoretical and logico-philosophical problem, could be viewed rather as a social ideal than a practical goal of parliamentary activities. But approximation of this goal is definitely achievable by maximising public participation in the legislative drafting procedures, by widening of legal “discourse” in the society (Habermas) and by further improving the professional preparatory work carried out in the drafting stage of legislative acts.
Maret Maripuu, born 1974, public manager, College of Tallinn Private Bachelor’s School 1996; Open University of the University of Tartu, law 1996-. Work: sales representative of the Estonian Statoil 1993-94, adviser to the faction of the Reform Party and head of the chancellery 1994-99; member of Tallinn city council 1999-, member of the IX Riigikogu 1999-. Affiliation: Estonian Reform Party 1996-, Society Res Publica (chairwoman 1993-95), member of the Board of the Women’s Civic Training Centre 1997- and chairwoman of the Board of its Foundation 1999-.