Petrified and Updated, or How the Interpretive Community Exercises Power Over the Meaning of Vague Terms in the Legal Text (on the Example of Polish Criminal Law)

Is replacing a vague image with a sharp one always beneficial?

Isn't a vague image often just what we need?

- Ludwig Wittgenstein, Philosophical Investigations

1 Introduction

Interpretation of the law is based on a temporal perspective. The meaning of a legal text changes over time despite the fact that the wording does not change. A provision read in 2019 may be different from the same one read in 2023, even though its letter is the same. While the form is the same, the content may be different, cf. [43]: 433–436, [4]: 494–495.

The temporal dimension of legal interpretation is recognized in the theoretical academic debate and, to a slightly different extent, in the practice of application of the law. Among other things, the theory brings insights as to the subjective (static) and objective (dynamic) interpretation and their equivalents, cf. [32]: 394–396, [44]: 440–441, [58]: 29–31, [5]: 45–49, [22]: 1479–1555, [14]: 911–936, [54]: 1671–1698, [1]: 21–22, [64]: 87–130. In turn, practitioners note that the addressees of the law may act in confidence in the meaning that is uniformly ascribed to the legal text in judicial decisions—which leads to the conclusion that changes to such a consistent understanding should not be hasty, cf. [69, 70, 74, 75].

The content of a legal text does not change by itself, but as a consequence of actions taken in the interpretive community (i.e. by individual interpreters) and by the interpretive community (i.e. when a consensus prevails within it on a given solution). Adopting the temporal perspective of interpretation allows one to see more fully the significant scope of power over the meaning of a legal text that the community has, cf. [27, 46]: 73.

The subject of our interest is the ways in which the interpretive community exercises power over the meaning of vague terms contained in a legal text.¹ This is because, in our view, the meaning of a vague term is a function of the state of discussion in the interpretive community at a given moment; in turn, the discussion develops over time with subsequent statements by interpreters about a given vague term. We assume that valuable results can be obtained from looking at the issue of vagueness in “dynamic” terms, as a certain process in the course of which the meaning of a vague term evolves. We view the manner of this evolution as a result of the way in which the interpretive community exercises its power over the meaning of a vague term, so we will use these terms interchangeably in the following discussion.

We will analyze the ways in which the meanings of vague terms have evolved in criminal law. It is in criminal law where the need for a sufficiently high standard of definiteness (or “foreseeability”) is most strongly emphasized [57]: 99–100, [45]: 167–175, [39]: 491, [40]. In Europe, the principle of nullum crimen sine lege is set out primarily by Article 7 of the European Convention on Human Rights, under which “No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time it was committed.”² In the view of the European Court of Human Rights, this principle also results in the prohibition of introducing criminal laws that do not make it possible to determine what behavior is punishable [68]. This, of course, does not mean the exclusion of vague terms from the criminal law [66,67,68]; what is important, however, is that “it proves to be sufficiently clear in the large majority of cases” [67], and in assessing this clarity, one “must accordingly ascertain whether in the present case the text of the statutory rule read in the light of the accompanying interpretative case-law satisfied this test at the relevant time” [67]. Moreover, it is difficult to imagine criminal legislation that would be free of vague terms introduced intentionally by the legislator.

The standard of regulatory definiteness imposed by nullum crimen sine lege thus plays a dual role. On the one hand, it dictates that the legislator should be cautious in delegating power over the meaning of vague terms to the interpretive community. On the other hand, it orders that community to exercise the power granted to it in a restrained manner to ensure a high level of predictability in application of the law, cf. [57]: 103. The above allows us to assume that it is precisely in criminal law that interpreters take special care in applying provisions containing vague terms.

The research material will come from Polish criminal law, to which we have the best intellectual access. However, the conclusions drawn will undoubtedly have a broader scope of application. Polish law is a typical example of a system of statutory law. Polish legal culture is strongly positivist, focused on the legal text and generally distrustful of judicial activism. This makes it particularly easy to see in Poland the drive to “develop” the “worrying” areas of legal texts, i.e. vague terms, as quickly as possible, thus reducing the unpredictability associated with them. Let us also add that Polish law emphasizes the importance of the principle of nullum crimen sine lege; it is not only part of the Criminal Code, but has also been explicitly expressed in the Polish Constitution.³

We will begin the present study with a brief overview of previous research on vague terms in legal texts in order to more fully justify the usefulness of the dynamic perspective in further analysis (Part II). Then, we will analyze the practice of using three vague terms in Polish criminal law (Part III).

Based on this material, we will realize our main research objective, which is to characterize the model ways in which the community exercises power over the meaning of vague terms (and, at the same time, the ways in which they evolve). These considerations will be addressed particularly in Part IV.

Part V, on the other hand, will focus on our secondary research objective of identifying the factors that prompt the interpretive community to exercise its power over the meaning of vague terms in one of the ways characterized earlier.

2 A Brief Look at the State of Research on Vague Terms in Legal Texts. The Usefulness of a Dynamic Perspective

The phenomenon of vagueness in legal texts is the subject of a long-standing discussion, the origins of which are difficult to be determined. The benefits of using general concepts over casuistic regulations were recognized by lawmakers centuries ago. However, in the life of various legal systems, it is possible to discern periods of preference for certainty and periods of preference for flexibility [28]: 129–130, while vague terms favor the latter. This is not to say that semantic openness, which is a feature of legal language that cannot be eliminated from it, can ever be avoided in law [7]: 250–257, [28]: 127–128. However, it would be a mistake to equate vagueness with semantic openness. Even if there are no specific terms (never, even potentially, raising doubts about their scope), this does not mean that all the other terms are vague in the same way, cf. [21]: 149–151. Semantic openness does not equal vagueness. As one author put it, openness is a set of possibilities for the occurrence of vagueness [63]: 77.

However, in legal texts there are certainly vague terms that have been intentionally placed there by the legislator as indeterminate, in order to provide the legal text with sufficient flexibility [32]: 392–406, [62]: 221–222). Referring to other terminology, we are focusing here not on general clauses, but indeterminate legal concepts [32]: 392.⁴ The vagueness of them is revealed from the start. It is visible prima facie, unlike other open terms, which usually reveal openness in unusual situations that are difficult to anticipate [23]: 71, 27. Hence, the variability of rulings issued against the background of vague terms is something much more expected and does not require such deep justification as, for example, any cases of constitutional mutation, cf. [8]: 350, [17]: 445–453.

The vagueness of terms is usually illustrated by the structure of the “core” and “periphery” (or “penumbra”), introduced to science by Paul Heck and later popularized by Herbert Hart [32]: 402. The core is formed by the designations, about which there is no doubt that they fall within the scope of the vague term. In turn, the periphery/penumbra includes the designations that may, but do not have to, be included in the scope of the vague term. These are the so-called borderline cases [42]: 49–50; [15].

With regard to borderline cases, the legislators do not make a decision, failing to draw the possibly most precise line between what belongs to the designation, and what does not, cf. [32]: 392. Sometimes this is a less costly solution; rather than devoting resources to resolving these issues in abstracto through the legislative process, it proves more beneficial to entrust this task to courts that consider the circumstances of specific cases [38]: 143, [53]: 399–400. The legislators are implicitly declaring that they are giving up the task of specifying the legal norm, while delegating this task to courts. The legislator decides on core designations, while the courts—on borderline cases [65]: 25; [2]: 213–214; [21,22,23,24,25]. This simplified characterization captures the phenomenon of “distribution of the task of lawmaking” that occurs when a vague term is introduced into a legal text.

In science—with regard to the temporal dimension of legal interpretation—the aforementioned model activity is executed to contrast what is fixed in the legal text with what is variable in the legal text. Fixed concepts are the places over whose meaning the interpretive community has no power; the opposite is true of evolving norms, cf. [60]: 443–446, [11]: 558–561, [10]: 262–267, [48]: 83 ff., [52]: 1–3. Regulations containing terms that are vague by their very essence, due to the need to make decisions about borderline cases, will fall into the category of evolving norms, cf. [52]: 10–12. However, this model contraposition with respect to vague terms reduces our perspective to the starting point—that is, the feature of vague terms. In turn, it is also important to ask what happens to vague terms in the process of applying the law, how such evolution takes place.

How do courts decide borderline cases? Twofold, basically. A court may interpret a vague term, thereby clarifying its meaning [29]: 204, [33]: 19. Here, the court formulates some general criteria for applicability of a given vague term. Its statement is therefore relevant not only to the case just decided and possibly others relating to the same designation. This is because the criteria can also be applied to other designations; the interpretation potentially makes the meaning of the vague term change [29]: 204. In this context, another author writes about “text-oriented interpretation”; before a vague term is applied to the case being decided, it is first translated into other linguistic expressions, by definition clearer, less vague than the term being interpreted [26].

However, the court may also simply apply a vague term without attempting to clarify its meaning. Then the evaluation of the designation's belonging to the scope of the vague term is carried out without the mediation of general applicability criteria and without changing the meaning of the term [29]: 205–210, [33]: 19. In this context, we can also speak of “fact-oriented interpretation” [26].

The difference between these two ways of making decisions regarding vague terms—interpretive and subsumptive, respectively—is about the same as between the statement “the bald are only the people whose heads are covered with hair in less than 35%” and the statement “a person with three hairs on their head is bald” (which does not mean that people with more or less hair on their heads are not bald).

We consider it only partially accurate and insufficient to say that vague terms change their meaning following interpretation:

• 1. it is “only partially accurate” because, as we have already indicated, we consider their meaning to be a function of the state of discussion in the interpretive community. With their decisions, individual interpreters can, of course, influence what meaning will be associated with a vague term for the future; however, their decisions are subject to the judgment by other interpreters. It is only by looking at the activities of the interpretive community as a certain whole that it is possible to determine how the power over the meaning of vague terms is exercised and, above all, what is its effect;

• 2. in turn, it is insufficient insofar as we believe that the application approach (fact-oriented interpretation) is also an important factor in the evolution of vague terms.

An important inspiration for our consideration of vague terms was the perspective of the legitimate expectations⁵ that the addressees of the law may attach to acts of interpretation, or more precisely, to certain established interpretive practices [3, 49, 55]. We have recognized that the legitimate expectations that can be attached to vague terms can vary in nature depending on how the interpretive community exercises its power over the meaning of these terms in a given case.

It cannot be said that in the case of vague terms, no legitimate expectations of the addressees ever arise beyond a simple expectation of equality in exactly the same factual situation. It is clear, for example, that if the courts consistently recognize, for example, a child's illness as a circumstance excusing failure to appear at a hearing, then in the future other addressees of the law may expect their child's illness to excuse absence from the hearing. However, can addressees have any reasonable expectations of borderline cases that have not yet been subject to resolution?

Since legitimate expectations are created in the process of applying the law not so much by individual interpreters, but by the interpretive community, we decided to look at vague terms from the same perspective. We then concluded that the interpretive community can transform vague terms in such a way as to reduce their vagueness significantly (thus increasing the area for legitimate expectations) or preserve their lability, volatility, unpredictability (thus leaving a small area for legitimate expectations). Once again, however, let us emphasize that this is not a matter of individual interpretive decisions, but a longer evolution occurring as a result of the interpretive community's exercise of power over the meaning of these terms.

The dynamic perspective we adopt is an underdeveloped part of the reflection on vague terms in the legal text (cf. e.g. Asgeirsson [2]: 223–224 which seems to consider problem of borderline cases retroactivity in static perspective or Decker [16]: 314–316 with marginal remarks on the role of prior judicial decisions in resolving borderline cases). At the same time, it can contribute to a fuller understanding of what legitimate expectations and in what situations, can be associated by the addressees of the law with vague terms.

3 Case Studies—Vague Terms in Polish Criminal Law

From a wide range of research material from Polish criminal law, we have selected three vague terms, guided by the intention to show as diverse situations as possible. The first case study will deal with the term “significant amount of an intoxicating agent or psychotropic substance,” the second one—with “indecent prank,” and the third—with “another similarly dangerous object”. The order of presentation is not coincidental; for we have arranged these examples according to the current degree of predictability of court decisions rendered using the provisions containing these vague terms.

3.1 Significant Amount of an Intoxicating Agent or Psychotropic Substance

Poland's model of criminalizing drug possession is very developed. Its central part is the offence of possession of intoxicating agents or psychotropic substances—punishable by imprisonment of up to 3 years.⁶ This responsibility is then mitigated in the so-called minor case⁷ or aggravated in the case of possession of “a significant amount” of intoxicating agents or psychotropic substances.⁸ In addition, however, the law introduces the need to assess whether the perpetrator possessed “an insignificant amount for personal use”, which in turn creates the possibility of exonerating them from any criminal liability.⁹ Thus, the following gradation of drug possession acts has been adopted in Poland:

• 1. possession of an insignificant amount, intended for the perpetrator's own use—which gives the possibility of discontinuing the proceedings;

• 2. possession being a so-called minor case—punishable by up to a year in prison;

• 3. possession—punishable by imprisonment for up to three years;

• 4. possession of a significant amount—punishable by up to 10 years in prison.

The Polish model of criminalizing drug possession is thus based on a number of vague terms. Neither “insignificant amount” “minor case”, nor “significant amount” are defined in any way by the legislature. The distinction between the respective offences is thus in the hands of the courts. All that is known is that each of the vague terms must be read taking into account the remaining offences—one can certainly say that “a significant amount” must be significant enough for the remaining amount to be divided into basic possession, “minor case” and “insignificant amount”. Thus, this is a case of the so-called “scale vagueness” [23]: 58–60.

Of the above vague terms, here we will look at “a significant amount” as the one over which there has been the most extensive discussion in the case law. The term does not have a legal definition, of course, but this does not mean that the interpreter has broad power over its meaning. This is because at the moment, they essentially have to assume that:

a significant amount of drugs is that which is sufficient to intoxicate at least dozens of people at one time, i.e. at least 20 people [94].¹⁰

The above general criterion for applicability of a vague term largely reduces the vagueness of the term “a significant amount”, although it does not remove all doubts. For example, there is no clarity on whether the size of the amount for consumption should be determined according to the needs of non-addicts or addicts; however, the latter interpretation prevails, one more favorable for offenders.¹¹

The criterion presented has gained widespread acceptance in the interpretive community, primarily thanks to the Supreme Court, which has consistently applied it despite doubts raised by some interpreters. These doubts were embodied by a competing line of jurisprudence of the Cracow Court of Appeals, which associated the term “significant amount” with wholesale loads, sufficient to intoxicate tens of thousands of people simultaneously [87].

There was quite a convincing argument in favor of this view, noting the need to clearly distinguish the offence of possession of a “significant amount” from the “basic” offence of possession [87]. As one court explained:

(...) on the grounds of the previously effective Act on Prevention of Drug Abuse, it was assumed that an insignificant amount was an amount of up to 10 grams of marijuana (...). This was due to the legislature's intentions. Therefore, if an amount up to 10 grams of marijuana is an insignificant amount, and an amount that allows for the intoxication of dozens of people, that is even as little as 20 grams, is a significant amount, then what range of this drug should be considered basic which, in practice, should be dominant? [86].

However, the competing proposal has been criticized by other courts, who recognized the view promoted by the Supreme Court.¹² Moreover, in 2012, the Constitutional Court evaluated the constitutionality of using the vague term “a significant amount” in criminal legislation [107]. The comments made in the reasons for that judgment are very telling, but we will cite only one of them:

Indeed, one of the rudiments of the principle of the citizen's trust in the state and the laws it makes is that the citizen can assume that the content of the applicable law is exactly as determined by the courts, especially when this determination is made by the Supreme Court (...).

The interpretation that a significant amount is a few dozen portions for consumption has thus gained, in practice, a status similar to a legal definition. However, the jurisprudence also sees tendencies to mitigate the effects that would result from applying this “quasi-legal definition” to all cases. The courts have concluded that possession of dozens of portions for consumption for personal use should not be punished as severely as when the drugs are intended for trafficking [86]. It can be argued that this is a compromise between the quasi-legal definition of “a significant amount” and the competing view that a significant amount is only tens of thousands of portions of a drug for consumption. This latter, minority position, was motivated in large part precisely by a desire to avoid over-criminalization of drug possession for personal use.

Modification of the quasi-legal definition in question in the direction of also taking into account the purpose of possession, has gained acceptance in the jurisprudence of the Supreme Court. Indeed, this court found that the criterion of dozens of portions for consumption.

does not mean that in every case the amount of drug fit for one-time satisfaction of certain needs can be defined as “significant” (...) the sentencing authority should take into account, to an equal degree, also for what purpose the offender possessed the intoxicating agents or psychotropic substances, as well as whether they is a person addicted to these agents/substances [76].

The above discussion illustrates how a vague term in a legal text can gain its quasi-legal definition following the activities undertaken in and by the interpretive community. The general applicability criteria proposed in the judicature primarily included equating “a significant amount” with dozens of portions for consumption. This kind of criterion has greatly reduced the vagueness of the term “a significant amount”. Despite the fact that this criterion did not convince all the judges, the consistent application of this criterion by the Supreme Court has ensured its widespread acceptance in judicature. Moreover, it is against the backdrop of this quasi-legal definition that the Polish Constitutional Court expressed the view that terms in the legal text acquire the meaning that is ascribed to them in judicature.

The case analyzed also shows that the widespread acceptance of a quasi-legal definition does not preclude its further modification in the future. Indeed, in this case, the criterion of dozens of portions for consumption was supplemented with the criterion of the purpose of possession, which can be seen as a result of the critical opinions expressed against the former criterion. In this case, however, the acceptance of an additional criterion by the Supreme Court is also crucial. In doing so, it is worth noting that the modification to take into account the purpose of drug possession mitigates, rather than aggravates, criminal liability, making it relatively uncontroversial (cf. [2]: 232–233; critically on the role of the rule of lenity in resolving vagueness in criminal law [34]: 10–11).

3.2 Indecent Prank

Under Article 140 of the Code of Misdemeanors¹³:

Whoever commits an indecent prank in public shall be punished by detention, restriction of liberty, a fine of up to PLN 1,500 or a reprimand.

The Polish code of misdemeanors has been a piece of legislation for an exceptionally long time, dating back to the communist era¹⁴—now more than 50 years. Although it has been amended, the cited provision has changed only in terms of the severity of penalties facing the offender. Today, the term “indecent prank” is anachronistic, almost unheard of in everyday Polish language. Not only is it rare to call any behavior “indecent”, it is only occasionally that people use the term “pranks”—most often in reference to the behavior of younger children. Thus, it is difficult to consider that nowadays, an “indecent prank” is a term understood intuitively. Prima facie, it should be all the more important for the courts to determine its general applicability criteria.

This misdemeanor is included in one chapter along with the acts of posting obscene notices, inscriptions or drawings or using obscene words (Article 141) and insistently offering to use the services of a prostitute (Article 142). The above solution already excludes such acts from the scope of “indecent pranks”. It is therefore worth looking at what the judicature includes in the scope of this vague term. These include, for example:

• 1. hanging around, in a state of intoxication, in a building in which one does not reside [109], or lying in a state of intoxication on the sidewalk [98] or in a snowdrift in front of a store [104];

• 2. urinating on the wall enclosing the cemetery [105] or going to the toilet on the pedestal of a monument [102];

• 3. having sexual intercourse [110], stripping bare (by a man) [103, 108], masturbating in front of a school boarding building [100] verification by a TV show juror whether a contestant's breasts are natural [89].

A review of judicature may lead one to conclude that the term “indecent prank” primarily includes acts related to alcohol intoxication, human physiology or intimacy. Such a conclusion, however, is explicitly rejected by the Supreme Court, which stipulates that it is about morality in the broadest sense [78]. In the same ruling, the Supreme Court cites and approves with the view expressed by one commentator that an indecent prank is a behavior that.

cause a negative reaction from others in the form of embarrassment, scorn, anger, indignation, opposition, disgust, condemnation, or is capable of causing such a reaction. Indecent behavior is that which opposes, in the above context, cultural norms, rules of social intercourse, accepted customs and traditions (...) [78].¹⁵

In addition, it is noted that the behavior intended to be “indecent pranks” must be public, observable by “an unspecified number of passers-by” [72, 98, 99].

The rulings that have been made must be considered consistent with the general applicability criteria thus defined. However, it should be noted that, unlike in the case of “a significant amount”, these criteria do not reduce the vagueness of the term “indecent prank”. On the contrary, they proliferate further benchmarks for evaluation,¹⁶ mandating reference to “cultural norms”" “rules of social intercourse”, “accepted customs and traditions”. In addition, they still mandate an assessment of whether the behavior under investigation is capable of causing “embarrassment”, “scorn”, “anger”, “indignation”, “opposition”, “disgust”, “condemnation”. If it were a matter of determining whether the behavior under investigation actually has caused such reactions, this would be relatively straightforward; however, it is the “ability to cause such a reaction” itself that also has to be assessed. In fact, the general applicability criteria analyzed are more like a set of synonyms for the terms “indecent” and “prank”, thus adding to the doubt. This is because it turns out that “indecent” means not only “contrary to customs”, but also “contrary to traditions”, “contrary to the rules of social intercourse”, “contrary to cultural norms”.

Although the general applicability criteria of “indecent prank” analyzed above can be considered widely accepted, this quasi-legal definition is deceptive—for it does not meet its primary purpose, which is precisely to reduce the vagueness of the term. This is because the formulated and widely accepted criteria are so general that they not only fail to reduce vagueness, but perhaps even increase it. Thus—they do not increase the predictability of court decisions.

3.3 Another Similarly Dangerous Object

In Polish criminal law this vague term is part of the expression “firearm, knife or another similarly dangerous object” [broń palna, nóż lub inny podobnie niebezpieczny przedmiot]. The use of a dangerous object aggravates criminal liability for, among other things, participation in a fight, assault¹⁷ or robbery.¹⁸

There are attempts in the judicature to propose general applicability criteria of the vague term “another similarly dangerous object”. They are based primarily on the clue left by the legislator that the danger to human health and life in these cases should be “similar” to that posed by a firearm or knife. Thus, courts list the following criteria for the use of this vague term:

• 1. the danger must arise from the “fixed characteristics of the object” and not from the way it is used [81];

• 2. the object must always pose an imminent danger of loss of life or grievous bodily harm regardless of the manner of its use (as is the case with firearms or knives) [84]. The mere use of an object must pose a risk to health [85];

• 3. the object must be dangerous in abstracto [91];

• 4. the object must be made primarily for destroying or injuring [101].¹⁹

A review of judicial decisions leads us to conclusion that the cited criteria are not applicated consistently, and therefore – are not widely accepted. They are rarely rejected outright, but there are many times decisions that could have been called into question on the basis of the indicated criteria. This, it seems, is primarily a problem inherent in the flawed nature of the proposed criteria.

This is because, first, it is not clear whether “other similarly dangerous objects” should meet all the indicated criteria or whether meeting one of them is sufficient.

Second, it seems that on the basis of these criteria, it would be easy to question the recognition of a kitchen knife as a dangerous object (and it is classified as such [95]). A kitchen knife becomes dangerous only in connection with an unusual way of its use, and is therefore dangerous only in concreto. Nor was it designed primarily to destroy or injure. For this reason alone, one may wonder whether the proposed criteria properly identifies what is meant by an “object that is dangerous similarly to a firearm or knife”.

Third, it is unclear what the ordinary use of the object is. For example, baseball bats [106], flagstones [82], screwdrivers [97] or dogs of breeds such as Rottweiler [80] or AmStaff [83] are considered to be other similarly dangerous objects in judicial decisions. It goes without saying that the ordinary use of these “objects” is in no way dangerous to humans. Baseball bats are primarily used for sports, flagstones are used to pave roads, screwdrivers are used for various mechanical jobs, while dogs are typically used by humans to fulfill emotional needs, and possibly for work. Therefore, it would have to be said that it is a matter of ordinary use against a person—hitting with a baseball bat, throwing a flagstone, stabbing with a screwdriver, or setting a dog on someone. However, if this is the case, it would be impossible to understand why, in judicial decisions, a car used against a person—to hit them—is not another similarly dangerous object [101]. Not to mention the example of an iron which, according to one court, is not another similarly dangerous object, although this assessment could be changed by plugging it in and heating it to a high temperature [88].

Fourth, it is highly unclear whether it is really possible to separate the “immanent characteristics of an object” from the way it is used, as evidenced by the aforementioned example of a kitchen knife. For example the Polish Supreme Court had troubles with this kind of task; considering the case of one-kilogram metal tube it used arguments concerning exactly the way of using this thing by the defendant, not the imminent characteristics of this tube:

“An object of such length and weight, set in motion by an adult male, undoubtedly appears to be a dangerous tool (...). As a side note, it is worth noting that its use caused the aggrieved party medium impairment to health - and therefore relatively serious bodily injuries.” [77]

To sum up, the interpretive community has also made attempts to define general criteria for the applicability of the vague term “another similarly dangerous object”. These criteria potentially reduce the vagueness of the term under review, but the relevant judicature demonstrates that they are not accepted. Their rejection is not expressed explicitly, but is evident in the respective adjudications, which should be considered unjustified from the perspective of these criteria (e.g. a screwdriver as a “dangerous object in ordinary use”). Similarly, therefore, it would be difficult to conclude that these criteria effectively increase the predictability of judicial decisions.

4 The Ways in Which the Interpretive Community Exercises its Power Over the Meaning of a Legal Text

The first case study showed a situation in which the interpretive community managed to effectively reduce the vagueness of the term “a significant amount” by formulating its quasi-legal definition—through the widespread acceptance of certain general applicability criteria. The status of this quasi-legal definition is so strong that rulings that do not comply with it are considered to deserve to be repealed. However, this does not preclude further modifications to the quasi-legal definition, as shown by the issue of supplementing it with the criterion of the purpose of possessing an intoxicating drug or psychotropic substance.

In the case study of “indecent pranks”, we saw a situation seemingly similar to the first one—i.e. established, general applicability criteria that can be considered widely accepted in the interpretive community. However, this quasi-legal definition was already feigned, as it did not achieve its primary purpose—it did not lead to a reduction of the vagueness of the term, and thus did not increase the predictability of judicial decisions.

Finally, the analysis of “another similarly dangerous object” presents a case in which various general applicability criteria are formulated in the interpretive community, but are not widely accepted. Although they are not rejected outright, subsequent rulings show that they are not followed in practice. Similarly, therefore, it is difficult to consider that the interpretive community in this case has succeeded in effectively reducing the vagueness of the term “another similarly dangerous object.”

From a dynamic perspective, we want to categorize the above situations into two distinct groups. In our view, “a substantial amount of an intoxicating agent or psychotropic substance” is a petrified vague term. In turn, we will call “indecent prank” and “other similarly dangerous object” updated vague terms.

In this text, we do not predetermine that petrification and updating are the only possible ways of evolution and ways of exercising power over the meaning of vague terms. However, this dichotomy reveals opposing solutions, so it allows us to see the differences in the way the interpretive community exercises its power over the meaning of a legal text.

4.1 Petrified Vague Terms

4.1.1 What is Petrification?

With reference to the case of “a significant amount,” we can say that a vague term is petrified when there is widespread acceptance, in the interpretive community, of its general applicability criteria.

This creates a quasi-legal definition. “Quasi” because it is not a legal definition in the strict sense, it does not come from the legislator and is not established in a legal text. At the same time, however, its role is very similar; after all, it represents the understanding of a certain term, which the interpreter must replicate in practice if they do not want to expose themselves to the accusation of illegality.

The pattern of such a quasi-legal definition is as follows:

• X belongs to the scope of the vague term A if and only if it meets the conditions of Y₁, Y₂… Y_n

Let us emphasize that a quasi-legal definition means only such general applicability criteria that have already gained widespread acceptance in the interpretive community. The criterion of “widespread acceptance in the interpretive community” is, of course, itself vague. An assessment can only be made on a case-by-case basis (see part 4.1.3). The case studies presented show that, in practice, such an assessment is possible. While in the case of “a significant amount” we can certainly already speak of widespread acceptance both at the level of the beliefs stated by the courts and of conformity of rulings with those beliefs, the situation is quite different in the case of “another similarly dangerous object.”

Against the background of the “indecent prank” example, it would also be appropriate to emphasize that the general applicability criteria must also be functional, and therefore lead to reduction of vagueness of the term in question (reduction of a number of borderline cases – but not necessarily eliminating them all, which seems impossible). This is because otherwise there will be no increase in predictability of judicial decisions, and thus the main goal of petrification will not be achieved.

To conclude, a petrified vague term is one that has a functional quasi-legal definition, which includes general criteria for its applicability, leading to a reduction in vagueness of the term, which criteria are widely accepted in the interpretive community.

4.1.2 The Values that Benefit From Petrification

The petrification of a vague term leads primarily to increased legal certainty and, more specifically, to predictability of judicial decisions. This is because the functional quasi-legal definition increases the chances that the vague term will be read identically by different courts in different cases, and borderline cases will be decided identically.

Petrification thus reduces the risks usually pointed out as arguments against introducing vague terms into the legal text. At the same time, it also reduces the benefits of vagueness. This is not surprising if one considers that petrification in practice leads to replacement of a vague term with an explicit (or at more explicit) one. In this regard, interpreters, and especially judges, are self-limiting in the exercise of their power over the meaning of the text.

Of course, the petrified vague term will not completely lose its flexibility; petrification “freezes” rather than destroys this potential. The functional quasi-legal definition of a vague term can develop further, as the example of “a significant amount” shows well (supplementing the definition with the criterion of purpose of possession). It also cannot be ruled out that the functional legal quasi-definition will lose its status due to the outbreak of a major dispute in the interpretive community; in this state of affairs, it will not be possible to call a vague term petrified until another functional quasi-legal definition is developed.

4.1.3 Methods of Transforming a Vague Term into a Petrified One

When the interpreter decides on a borderline case, the vague term is not clear to them. In such a situation, the interpreter oriented more towards the text than towards the facts may proceed first to clarify the legal text itself. They will attempt to translate the vague term into other phrases. Thus, they will formulate general criteria for the applicability of a vague term.

It seems that in most situations, however, the interpreter will not need to translate a vague term into another, since it will be sufficient to refer to the general applicability criteria already proposed by others. As we have emphasized, the petrification of a vague term only takes place when a functional quasi-legal definition is created, and one of the basic conditions for this is the widespread acceptance in the interpretive community of certain general applicability criteria. As a rule, this will be the result of a process spread over time.

The case study of “a significant amount” shows that a fundamental role in ensuring that general applicability criteria be widely accepted in the interpretive community is played by the attitude of the highest judicial authorities, who have the “final say” in interpretive discussions. The consistency on the part of these bodies—such as the Polish Supreme Court—clearly increases the likelihood that a functional quasi-legal definition will be established, see also [46]: 70–71.

In our view, however, widespread acceptance could also be recognized if the general criteria for applicability:

• 1. are repeatedly used in the justifications of court decisions, without giving rise to a serious interpretation dispute. Of course, it is not possible to indicate exactly what “repeatedly” means here;

• 2. are repeatedly used by one of the highest judicial authorities in such a way that it can reasonably be assumed that courts of the lower instances will not challenge the position of the highest judicial authority. In the Polish legal system, these can be, for example, resolutions passed by the expanded composition of the Supreme Court.

4.2 Updated Vague Terms

4.2.1 What is Updating?

Updating can be considered the state of a vague term, in which, despite its repeated application in borderline cases:

• 1. no attempt has been made to formulate a functional quasi-legal definition of the vague term;

• 2. the attempts made to formulate a functional quasi-legal definition of the vague term have not received widespread acceptance in the interpretive community, especially among judges (see case study of ‘another similarly dangerous object’);

• 3. widely accepted general applicability criteria (quasi-legal definition) are not functional, that is they do not reduce vagueness of given term (see case study of ‘indecent prank’).

Updating can thus also be seen as the result of long-standing abandonment of formulation of a functional quasi-legal definition of a vague term or the failure of such efforts. “Long-standing” refers here not so much to time taken in absolute terms, but to the number of resolutions in borderline cases, where the quasi-legal definition could apply.

4.2.2 The Values that Benefit From Updating

The evolution of a vague term into updating does not, of course, limit the risks of introducing vague terms into legal texts in general. Thus, it leads to diminish of the legal certainty and, more specifically, of predictability of judicial decisions.

Of course, however, the addressees of the law may nourish the expectation that since one court has considered a given referent from the scope of penumbra as falling within the scope of a vague term, subsequent interpreters will copy this decision. Subsequent situations of application of the provision do not give us a basis for expecting what courts will do in other borderline cases – those which have not yet been decided by any court (and such a basis is provided by the quasi-legal definition). However, they make it possible to at least determine what can be expected with regard to the borderline cases that have already been decided in the past, cf. [29]: 203–205. Of course, we should speak here precisely of “expectations” rather than “certainty”.

The act of updating preserves the flexibility of a vague term, and thus can contribute to strengthening the fairness of rulings, understood as their best adjustment to the circumstances of a particular case, cf. [18]: 60–61; [19]: 188–190; [20]: 24–25. The lack of self-limitation on the part of interpreters in the exercise of power over the meaning of the text makes it possible to subsequently determine the goals that should be achieved with the help of the legal text (see Sect. 4.2.1.). Thus, it leaves a much wider range of possible responses to situations that were impossible to foresee at the time of drafting the legal text or potentially formulating a functional quasi-legal definition of a vague term. Flexibility here is a value to be upheld [31]: 757–774.

4.2.3 Methods of Transforming a Vague Term into an Updated One

In borderline cases, the interpreter will be interested in whether the inclusion of a referent of a certain type within the scope of the vague term is justified from the perspective of the desired goals of influencing reality through the law. “Desired”, that is both those that have already been attributed to the legal text and those that the interpreter themselves consider desirable in the circumstances of a particular case. This is well illustrated by the example of “another similarly dangerous object”, a vague term used by interpreters to ensure the appropriate severity of the criminal law response also where it does not correspond to the previously formulated general criteria for its applicability (e.g. a screwdriver, an AmStaff or Rottweiler dog).

4.3 Summary

Petrified vague terms are those for which the interpretive community, at a given time, has a functional quasi-legal definition – i.e. the general criteria for its applicability, leading to a reduction in vagueness of the term that has been widely accepted in the interpretive community. To achieve this state of widespread acceptance, the attitude of the highest judicial authorities is fundamental, unless the given general applicability criteria do not at all raise serious interpretive disputes that require resolution. Petrification primarily serves to increase legal certainty and, more specifically—the predictability of judicial decisions.

In turn, updated vague terms are those for which the interpretive community does not have a functional quasi-legal definition at any given time. Such a situation may result either from the abandonment of attempts to establish it, or from the failure of such efforts. Updating does not, of course, effectively increase the predictability of judicial decisions, but it allows to retain a large degree of flexibility of the legal text, and thus facilitates its adaptation to the desired goals of influencing social life through the law.

At the end of this part of the discussion, we must still stipulate that it is only possible to assess whether we are dealing with a petrified vague term or an updated vague term only when a given term becomes the object of discussion concerning judicial decisions. Of course, interpreters other than judges are also involved in discussing a vague term and, as can be seen in the example of “indecent pranks”, their proposals may even be adopted by judges in their entirety. However, since it is judges are equipped by the legal system with the authority to resolve disputes, including disputes over the meaning of a legal text, their positions are by far most relevant when assessing the direction of evolution of a vague term.

Therefore, vague terms should be classified into:

• 1. the ones whose direction of evolution cannot yet be assessed (due to a shortage of resolved borderline cases), and

• 2. the ones whose direction of evolution can already be determined and they are either:

• 3. petrified vague terms, or

• 4. updated vague terms.

It should be reminded, that in our view the meaning of vague term is a function of the state of discussion in the interpretive community at a given moment. Consistently, also only for the given moment we will be able to assess, whether certain vague term is petrified or updated. It is not out of the question that a vague term, which at one point should have been considered updated, will later gain a functional legal quasi-definition which will make it petrified. Or that the opposite process will occur—as a result of a shattering of the previous consensus by the interpretive community with regard to a functional quasi-legal definition.

We must recall further that we see the two evolutionary directions under discussion as the poles of a certain spectrum, in which specific vague terms occupy some intermediate position, closer to petrified vague terms or updated vague terms. And it is on the basis of this “proximity to the pole” that we determine the category in which a particular vague term should be placed. That status could be changing and we may notice that phenomenon using the dynamic perspective on the vague terms in legal texts.

5 Circumstances Affecting How the Interpretive Community Exercises its Power Over the Meaning of a Vague Term

The way in which a vague term evolves depends on the interpretive community, which can exercise its power over the meaning of the term in two ways. We do not perceive this process as one that will always result from conscious decisions. It is not at all out of the question that individual interpreters include, in their intention, only the resolution of a certain borderline case, without seeking to achieve an impact on the meaning of the vague term as such. Whether it was intentional or not, however, the respective rulings can significantly affect this meaning.

However, we believe that the way in which power over the meaning of a vague term is exercised is not something random, a matter of whim of the interpretive community, but dependent—at least to some extent—on the influence of identifiable circumstances. It is a matter of judicial discretion, not judicial arbitrariness, cf. [56]: 81, [25]: 443–445. We perceive three such circumstances:

• 1. the prevailing ideology, in the interpretive community, of applying the law;

• 2. specificity of the legal field to which the provision containing the vague term belongs;

• 3. reasons for which the historical legislators introduced a vague term into the legal text.

5.1 The Prevailing Ideology in the Interpretive Community of Applying the Law

The ideology of application of the law is understood here as the sets of beliefs held by judges regarding the main values that should be respected in the process of applying the law and the paths leading to this goal.

As a model, the process of applying the law can be aimed primarily at protecting legal certainty (ensuring predictability of application of the law) or at pursuing justice (fairness), understood as the issuance of a ruling best suited to the circumstances of a particular case [64]: 273–304, [41]: 123–130, [51]: 679–684. We may refer here also the ideas of “court of law” and “court of justice”, respectively [61]: 537–540.

Judges focused on protecting legal certainty will also value consistency of judicial decisions and consistency regarding the treatment of similar cases. Of course, the establishment of a functional quasi-legal definition of a vague term is, in a sense, lawmaking, but it limits other judges and allows better coordination of their acts. Thus, it represents a major step towards increasing the predictability of judicial decisions, which, in practice, is the most important aspect of legal certainty. Therefore, it can be hypothesized that judges focused on protecting legal certainty will be more inclined to formulate and copy functional quasi-legal definitions of vague terms, unless they perceive this kind of act as overstepping their role as faithful agents of the legislature [24]: 905–910.

Judges focused on the pursuit of justice (fairness) will be more inclined to avoid quasi-legal definitions so as not to be bound for the future by rigid criteria for applicability of a vague term that could hinder the best possible judicial decision. Courts, not being bound by functional quasi-legal definitions, can also act more effectively as partners of the lawmakers in the search for the best means of influencing social reality [59]: 537. Performance of this role is not excluded also in the formulation of functional quasi-legal definitions, but it can be realized more broadly when greater discretion is preserved to decide on the association of a certain referent with the scope of a vague term. Judges focused on the pursuit of justice will therefore, in our view, move in the direction of making the vague term updated rather than petrified.

Depending on local circumstances, interpretive communities may be dominated either by judges focused on protecting legal certainty, or ones focused on the pursuit of justice. In our view, it is this “general tendency” that may determine whether the interpretive community will, as a rule, aim to petrify or update vague terms. The Polish interpretive community seems rather oriented towards protecting legal certainty, which may explain the phenomenon observed in the case studies to seek general applicability criteria in each of the analyzed cases—although it did not always prove possible to establish a functional quasi-legal definition.

5.2 Specificity of the Legal Field to Which the Provision Containing the Vague Term Belongs

For the reasons explained in the introduction, we have devoted the above discussion entirely to examples from criminal law. A key role is played by the desire to meet the high standard of definiteness associated with the principle of nullum crimen sine lege. Therefore, the interpretive community here will seek primarily to ensure predictability in the application of the law and, even more broadly, to protect legal certainty. This is because an addressee of the law must be able to rationally plan their life activities with the possibility to take into account all the potential legal consequences of their own acts.

For these reasons, it can be suspected that in criminal law, there will be a tendency to petrify rather than update vague terms, since it is the former process that allows to protect legal certainty to a greater extent. The case studies conducted in this paper may confirm this intuition; for in all three cases, there were clearly discernible attempts to establish general criteria for applicability of vague terms that could give rise to a functional quasi-legal definition. Although the establishment of a functional quasi-legal definition has so far proved possible in only one of these cases, the trend itself is worth highlighting and noting. We believe that a similar phenomenon may also take place in other areas of so-called repressive law, most notably tax law.

We can also mention the specificity of those fields of the law that deal with rapidly changing socio-economic realities, such as those caused by development of technology. Good examples of such fields of the law are environmental law²⁰ or data protection law. These are regulations that are particularly prone to becoming inadequate to current human needs. This could be a serious indication pushing interpreters against the search for functional quasi-legal definitions of vague terms used in regulations belonging to these fields of the law.

5.3 Reasons for Which the Historical Legislators Introduced a Vague Term into the Legal Text

5.3.1 Lack of Full Knowledge of Reality and Ambiguity of Objectives of the Law

Lawmaking involves creating general and abstract norms that operate pro futuro, which confronts the legislator with the extremely difficult task of predicting the future. Aware of their own unavoidable cognitive limitations, and at the same time of the risks created by the existence of gaps in the law, lawmakers use vague terms in legal texts, cf. [59]: 536, [20]: 24–25, [50]: 38–42. As one of the authors stated it, ‘Vagueness is ineliminable from a legal system’ [19]: 188–190.

At the same time, as Herbert Hart has convincingly shown, the lack of complete knowledge of reality is also combined with the ambiguity of the objectives of the respective rules [28]: 128–129. A provision containing a vague term is, of course, introduced into the legal text to achieve some main, initial goal; resolving borderline cases, however, will require choosing among secondary goals. For example, the main purpose of banning vehicles from a park may be to allow all users of that park to enjoy it without disruptive noise generated by vehicles. So should electric scooters also be banned? From the perspective of the main purpose, no, nevertheless could a ban on vehicles entering the park also protect park users from the threat to life and health posed by the use of vehicles by others? In light of such a goal, electric scooters should also be banned from entering the park. Ambiguity of goals thus becomes an invitation to the courts to co-determine state policy in a certain area, cf. [59]: 537, [32]: 407, [30]: 219.

If the introduction of a vague term into a legal text is dictated by the lack of full knowledge of reality and the ambiguity of the goals of the law, this directs the interpretive community to update the vague term rather than petrify it. Petrification would only be justified if it could be concluded that both the knowledge of reality is already sufficiently large and the goals of the law are so defined that leaving the legal text flexible is no longer justified. However, it can be presumed that this will be a fairly rare situation.

5.3.2 Inability to Build a Definition at the Lawmaking Stage

Giving up the task of constructing a legal definition may also stem from the observation that it is still too early to build such a definition, but it will nevertheless be possible in the future (vagueness here is a way to “postpone ultimate decision”, see [9]: 889, [38]: 143, [53]: 399–400). This is because participants in the legislative process often lack knowledge that is either already collected (but cannot be accessed, for example due to the high pace of legislative work) or will in all likelihood be collected in the future. Thus, it is not so much an abandonment of the legal definition as a postponement of the moment of its formulation—either through an amendment or by shifting the responsibility for its creation to those applying the law. As the legislative work in the Polish parliament shows, it can happen that participants in legislative work directly express the belief that “the courts will cope” with a certain vague term, ergo—perhaps they will develop its applicability criteria.²¹

Thus, it can be said that in such cases, the reason for introducing a vague term into the legal text is the temporary impossibility of constructing its legal definition. This kind of reason may encourage the interpretive community to make efforts to petrify the vague term, instead of updating it.

5.3.3 Situations of Deliberate Ambiguity

By deliberate ambiguity²² we mean situations in which it is only through the introduction of a term into the text, which can be understood in different ways, that it is possible to bring about the establishment of regulations [36]: 596–597, [37]: 302–303. This happens when the groups involved in the legislative process have such conflicting interests that only by leaving the most emotionally charged issues in the penumbra, is a piece of legislation established. In Polish legislation, a very good example of this type of situation is the constitutional provision establishing the right to life, held by every human being.²³ Violent disputes have erupted time and again, related primarily to defining when “a human being starts”, that is, whether the constitutional right to life precludes abortion—and if so, to what extent. An attempt to clarify the concept of “human being” (or “human life”) in the Polish Constitution itself would likely strongly impede the enactment of this legislation.

The phenomenon of deliberate ambiguity can be linked to the process of symbolic constitutionalization—a concept that denotes the growing discrepancy between the constitutional text and the practical social and political landscape, cf. [35]: 62–69. While deliberate ambiguity serves as a tool within symbolic constitutionalization, it is not the sole component. Furthermore, the realm of deliberate ambiguity extends beyond constitutional law; this phenomenon can also manifest in criminal law and other areas of legal practice.

Since in situations of deliberate ambiguity we are faced with disputes that cannot be resolved by the lawmakers, it would be difficult to justify the efforts of the interpreters to petrify such a vague term. If the legislator's intention was to leave the term vague, the discussion, it seems, should not be closed by interpreters. This would mean, therefore, that in this type of case, it would be more reasonable for the direction of evolution to update rather than petrify the vague term.

5.4 Summary

We have presented the above circumstances in an order illustrating the power we assume they have on the interpretive community when it chooses to exercise power over the meaning of a vague term. Thus, we attribute the greatest significance to the prevailing ideology of the application of law in the interpretive community, less significance to the specificity of the legal field, and the least (which is not to say irrelevant) to the reasons, associated with the historical legislator, for introducing a vague term into the legal text. We have not discussed the epistemic issue of how to determine the latter; however, we can point out that, in our view, the best means of determining such causes is through legislative history analysis.

When summarizing the above findings, it can be concluded that the following factors may push interpreters to seek a functional quasi-legal definition of a vague term or against seeking it:

Looking for a functional quasi-legal definition (the vague term will evolve towards petrification)	Abandoning the looking for a functional quasi-legal definition (The vague term will evolve towards updating)
Introduction of a vague term into the legal text due to inability to build a definition at the lawmaking stage	Introduction of a vague term into the legal text due to: 1. lack of full knowledge of reality, and ambiguity of the goals of the law, 2. situations of deliberate ambiguity;
Acceptance of the ideology of applying the law aimed at protecting legal certainty	Acceptance of the ideology of applying the law aimed at pursuit of justice
specificity of the legal fields that can be classified as so-called repressive law	specificity of the legal fields that regulate the dynamically changing socio-economic reality

6 Instead of a Conclusion, or the Missing Places

A legal text can change its content during its lifetime even if its form does not change. Transformations are the responsibility of the interpretive community, primarily through the acts of judges. The process described here can be seen most clearly precisely in the example of vague terms. In addition, in the case of vague terms, this power of interpreters over the legal text causes the least controversy due to the fact that the legislators themselves introduce this kind of division of legislative labor.

Not long after their introduction into the legal text, it is still impossible to say with certainty what use the interpretive community will make of its delegated power. It is possible to derive some assumptions about this by analyzing, for example the prevailing ideology among judges of application of the law, the specificity of the legal field in which the analyzed term appears, or the reasons for introduction of a vague term into a legal text. These are the factors that can “push” the interpretive community either towards petrification of a vague term or towards its updating.

The acts of the respective interpreters with regard to vague terms ultimately represent a collective advocacy for either greater certainty or greater flexibility of the law. Importantly, it is not the case that all vague terms are treated identically in a given interpretive community; their directions of evolution vary, and in this study we have revealed at least some of the factors that may influence their determination.

In the case of petrified vague terms, the interpretive community behaves in the way that actually leads to depriving the vague term of its vagueness (in whole or in part). Regardless of this fact, this is not the same situation as introduction of a legal definition by the legislators themselves; for the authority over such a functional quasi-legal definition is retained by the interpretive community, and therefore it can modify this definition in the future. This “uncertainty in certainty” is, in principle, not dissimilar to that created by the legislator's ability to amend legal definitions. However, with regard to changes in the established interpretation of the law, there is a lack of culturally developed, comprehensive intertemporal rules similar to those that protect the addressees of the legislator's rulings from their sudden change, cf. [12]: 118–119, [59]: 537–538. This is, in our view, an important gap not only in legal culture, but also in legal theory, which has so far failed to recognize these issues with the attention they deserve. They are still awaiting elaboration.

In contrast, updated vague terms retain all the flexibility that the legislator gives to the legal text. The case studies conducted revealed that, at least in the area of criminal law and at least in the Polish legal culture (which is strongly positivist and averse to judicial activism, as we explained at the outset), there are strong tendencies for vagueness to be “restrained” in every case, by setting the general criteria for applicability. On many occasions, however, it is impossible to get from suggesting such criteria to establishing a functional quasi-legal definition. In view of the above, of course, the normative question can be formulated as to when and under what conditions the interpretive community would be expected to at least attempt to establish such a definition.

However, even in this case of updated vague terms it is impossible not to notice the expectations that the addressees of the law can develop on the basis of the previous decisions about the respective referents of a vague term. Extremely important questions arise also here, as to how much and under what conditions these expectations of understanding a vague term should be protected. In our view, legal theory will have to address the indicated, normative problems. Thanks to the Internet and the AI-supported legal services [47]: 253–258, [13]: 421–423, access to judicial decisions has become and will increasingly become broader and easier than ever before in history. Thus, determining the views expressed by the interpretive community will also be a relatively simple task. This normative discussion, initially with regard to vague terms, may be facilitated by the analysis tools that we have proposed.