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So specificity of appearance and sounding of the instruments, the related rituals and original style of playing and others are accompanied by negative assessment.
In the linguistic world-image of O. Wilde correlating with the concept «Music» may also be distinguished the neutral lexicon serving for the indication of the size, form, material, etc. of the the musical instruments: long, huge, cylindrical, little, distant, etc.
Bibliographic list
1.Menjajlo V.V. Dinamichnost' avtorskoj kartiny mira / V.V. Menjajlo // STUDIA LINGUISTICA XVIII Aktual'nye problemy sovremennogo jazykoznanija: Sbornik. – SPb.: Politehnika-serviz, 2009. – C. 110–118.
2.Maslova V.A. Pojet i kul'tura: konceptosfera Mariny Cvetaevoj: ucheb. Posobie / V.A, Maslova. – M.: Flinta: Nauka, 2004. – 256 s.
3.Chukovskij K. Oskar Uajl'd / K. Chukovskij // Ljudi i knigi. – Moskva : Goslitizdat, 1960. – S. 625–670.
4.Verbickaja O.M. Osobennosti avtorskogo stilja Oskara Uajl'da (na materiale skazok O. Uajl'da) / O.M. Verbickaja, E.L. Gavriljuk // Nauchno-pedagogicheskij zhurnal Vostochnoj Sibiri Magister Dixit. – 2013. – № 1 (13). – S. 121–130.
5.Fomina Z.E., Lavrinenko I.Ju. Kognitivnye strategii kak mental'nye determinanty pri jazykovoj ob#ektivacii konceptov razuma i chuvstva v filosofskom diskurse F. Bjekona / Z.E. Fomina, I.Ju. Lavrinenko // Nauchnyj vestnik Voronezh. gos. arh.-stroit. un-ta. Sovremennye lingvisticheskie i metodiko-didakticheskie issledovanija. ‒ 2014. ‒ № 1 (21). ‒ S. 23‒37.
6.Fomina Z.E. Kul'turno-gastronomicheskie smysly v evropejskom i russkom jazykovom soznanii (na materiale nemeckih chislovyh frazeologizmov) / Z.E. Fomina // Nauchnyj vestnik Voronezh. gos. arh.-stroit. un-ta. Sovremennye lingvisticheskie i metodiko-didakticheskie issledovanija. – 2013. – vyp. 2(20). – S. 43-56.
7.Ter-Minasova S.G. Jazyk i mezhkul'turnaja kommunikacija: Ucheb. Posobie / S.G. Ter-Minasova. – M.: Slovo, 2000. – S. 47.
8.Maslova V.A. Kognitivnaja lingvistika / V. A. Maslova. – Minsk : TetraSistems, 2008.
–256 s.
9.Korobko L.V. Muzykal'naja leksika v povesti L.N. Tolstogo «Krejcerova sonata» v lingvokul'turologicheskom aspekte // Nauchnyj vestnik Voronezhskogo gosudarstvennogo arhitekturno-stroitel'nogo universiteta. Ser. Sovremennye lingvisticheskie i metodikodidakticheskie issledovanija. – 2015. – № 4 (28). – S. 52–72.
10.Fomina Z.E. Relevantnye priznaki jemocional'no-ocenochnoj leksiki kak samostojatel'nogo klassa slov v leksicheskoj sisteme jazyka / Z.E. Fomina // Vestnik Voronezhskogo gos. universiteta. Ser. 1. Gumanit. nauki. 1996. – №2. – S. 18–31.
11.Fomina Z.E. Nemeckaja jemocional'naja kartina mira i leksicheskie sredstva ee verbalizacii / Z.E. Fomina. – Voronezh : Voronezh, gos. un-t, 2006. – 336 s.
12.Fomina S. Das Konzept “Seele” als nationalspezifisches und transkulturelles Phänomen (am Beispiel deutscher, japanischer und russischer Phraseologismen und Parömien) //In: TRANSKULTURALITÄT – Identitäten im neuen Licht. Asiatische Germanistentagung in JAPAN (Kananzawa), 2008. – Deutschland, München, Iudicium Verlag, 2012. – S. 279–291.
13.Fomina Z.E. Vezhlivost' v prostranstve nemeckoj digital'noj kommunikacii (na primere jazyka Interneta) / Z.E. Fomina // Nauchnyj vestnik Voronezh. gos. arh.-stroit. un-ta. Sovremennye lingvisticheskie i metodiko-didakticheskie issledovanija. – 2013. – vyp. 2 (20). – S. 43-56.
14.Fomina S. Metaphorische Naturrepräsentationen von Sergej Jessenin und Ingeborg
Bachmann als Welterkenntnismittel unter dem Aspekt der Differenz und Universalität // In: Stimulus. Mitteilungen der österreichischen Gesellschaft für Germanistik: Sprache. Literatur.
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Erkenntnis. Herausgegeben von Wolfgang Hackl, Kalina Kupczynska & Wolfgang Wiesmueller. – Wien: Praesens Verlag 2014. – S. 234–252.
15. Fomina Z.E. Meteorologicheskie poslovichnye primety s imenem svjatogo v nemeckom lingvokul'turnom soobshhestve / Z.E. Fomina // Nauchnyj vestnik Voronezh. gos. arh.-stroit. un-ta. Sovremennye lingvisticheskie i metodiko-didakticheskie issledovanija. – 2015. – vyp. 2 (26). – S. 129-146.
Analyzed sources
1*. Wilde O. The Picture of Dorian Gray / O. Wilde, URL: http://e-libra.ru/read/328943- the-picture-of-dorian-gray.html (vremja obrashhenija – 11.11.2016).
2*. Uajl'd O. Portret Doriana Greja / O. Uajl'd, URL: http://www.bookol.ru/prozamain/proza/57176/fulltext.htm (vremja obrashhenija – 11.11.2016).
Dictionaries used
1**. The Longman Dictionary of Contemporary English Online, URL: http :// www. Ldoceonline .com (vremja obrashhenija – 23.03.2016).
2**. Collins English Dictionary, URL: https:/ /www. collinsdictionary.com/ dictionary / english (vremja obrashhenija – 23.03.2016).
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UDC 811.133.1
HERMENEUTIC UNDERSTANDING OF THE FRENCH LEGAL TEXT
K.Kh. Rekosh
____________________________________________________________________________
Moscow State Institute of International Relations (University) Ministry of Foreign Affairs of Russia.
Ph.D in philology, Associate professor of the Department of French language Karina Kh. Rekosh
e-mail: karinarekosh@mail.ru
____________________________________________________________________________
Statement of the problem. The article analyzes the problems of hermeneutic understanding of a legal text, as interpreted by the founders of the theory of interpretation as well as on the basis of the criterion, applied to the literary text.
Results. In the legal hermeneutics the understanding of the modalities of legal rules the content of which is manifested, in particular, in their application to concrete facts of reality within the framework of a judicial decision. is of special scientific interest. Understanding in general should be considered as a special case of reflection, recognizing the reflection as generic concept, and the understanding of legal discourse - in the framework of legal hermeneutics. The article shows that understanding is not knowledge, although knowledge can be formed, not thinking and not interpretation, but decoding the encoded meaning. Unlike oral discourse, written text is weak, ambiguous, incomplete, and marks the deferred communication, making understanding even more difficult. Studies of the parameters of the understanding of legal texts based on the model of intertextuality within the framework of philological hermeneutics is of great importance.
Conclusion. The criterion of legal discourse are more stringent than the criteria applied to artistic texts. At the same time, it is possible to note a certain parallelism of universals, ideas, inclusions, interactions, some of which are more relevant for literary texts, the others for legal. It depends on the genre of the discourse. Hermeneutic understanding of a legal text is to establish harmony between the written act, legal order and a fact of life and shows the syncretism and the fine line between understanding and interpretation.
Keywords: hermeneutic circle, legal hermeneutics, understanding, interpretation, completeness of the text.
Introduction. Analysis of the text can be exegetical and reduced to the letter, and hermeneutical one is going beyond the text. Understanding of the text can also go beyond the proposition and be the subject of study of philological hermeneutics. In this formulation this problem is very relevant, and its novelty is determined by the purpose of this study, which is to use parameters of philological hermeneutics to legal texts in French.
Hermeneutics have always been a traditional classical discipline dealing with the interpretation of ancient texts. There had always been one goal – to reach agreement in understanding. In the middle Ages, for example, il was necessary to associate the old Testament with the Christian good news (a similar problem arose with the Protestantism) or to establish harmony between antiquity and Christianity.
Hermeneutics received philosophical orientation in the writings of Friedrich Schleiermacher (1768-1834) [1], who considered it as a theory of art understanding, as a "method of all the Sciences of the spirit" and argued that with the help of psychological "getting used one can penetrate into the inner world of the authors’ ancient texts, historical figures and on this basis reconstruct the events, understand them more deeply, than they were understood by participants of the events". This theory reached its climax in his doctrine of intuition, by which, we are transported, while reading, into the state of mind of the author, and from this point of view, solve all mysteries and oddities found in the text. Historical novels are based on this postulate.
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© Rekosh K.Kh., 2017
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In the twentieth century philosophy of hermeneutics was developed by M. Heidegger (1889-1976) [2] and H.- G. Gadamer (1900-2002) [3], who sought answers to the questions: how to understand the world, how the truth of being is embodied in this understanding, how hermeneutics reflect the consciousness of man in a certain era, how to understand the texts, separated from us by time.
As an illustration we can call hermeneutic the modern approach to perform a piece of music, for example, of the XVIII-th century in the traditions and on instruments of that time for the reconstruction of the spirit time and in order to return the work in its time and space. A similar problem arises with the understanding of written text separated from us. F. Schleiermacher has shown that art and literature passed down to us from the past, are torn from their original world, which means that all natural and original things cease to exist for them, particularly for works of art. A work of art loses its value, "if it is taken out from this environment, then it resembles something saved from the fire and now bears traces of burns", as H.-G. Gadamer writes, "the artwork has its true value, only where it is intended to be initially" [3, p.217]. He argues that in comparison with discourse a written form completely separates the meaning of the utterance from someone who makes this statement [3, p. 459], and from what is understood by a reader. Interpretation of a text requires, thereby, the completion of statements (unambiguous values), clarity of expression, establishing a relationship with those to whom it is addressed.
At the same time, H.-G. Gadamer rejects the necessity of taking into account the subjective world of the author, which Friedrich Schleiermacher [1] called "subjective interpretation". According to H.-G. Gadamer [3],when trying to understand the text, we are not transported in the mental state of the author but in the perspective within which the author came to his mind. The task of hermeneutics is then to define this perspective (to establish cohesion).
H.-G. Gadamer writes: "everything understandable by nature should be available for understanding and interpretation" [3, p. 470].The current inextricable link between language and understanding does not allow to recognize " unconsciousness," in the early evolution of language ", as the process of speech in language is intertwined with that of thinking and understanding. However, according to H.-G Gadamer, "the language unconsciousness was and still is a valid way of being for language" [3, p. 471], i.e. "consciousness" is given to the text by the interpretation.
Considering that language doesn't care about what to reflect, H.-G. Gadamer uses the concept of "language" without any distinction, although in isolation from the logo. Referring to legal discourse as a subject of study, we can say that a special language with its relevant content is not characterized by unconsciousness, there are more specific guidances in its interpretation, due to its system and order.
In common language, where all synergistic streams of special languages are concentrated and where they form concepts, human “mnemonic" is consistent with all that human memory has accumulated. As "I" and "you" differ, the memory “I” might not be that of "you", hence the problems with understanding.
Classical philosophy is based on the fact that the person needs to examine reality objectively, freed from the burden of your own knowledge. Thus, "according to the classical theory, any installed knowledge must be subject to critical analysis, since the analysis must determine the boundaries and possibilities of human knowledge" David R. Doublet(1954-2000) [4, p. 6061]. Scientific knowledge is obtained "either by deduction from accepted axioms or by induction based on certain assumptions" [4, p. 60]. These methods provide a cumulative knowledge of the objective world, which is reflected in the scientific program outlined by Auguste Comte (1789-1857) in his work "the Spirit of positive philosophy" [5], which influenced the law and laid the foundations of the positivist paradigm.
In contrast to the classical theory, M. Heidegger and H.-G. Gadamer believe that a man begins to study a text remote from him by time, having a pre-opinion, pre-judgement, preju-
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dice, and therefore he cannot be completely objective, completely abandon the burden of knowledge. (The word "prejudice" for M. Heidegger has a very positive meaning, it has received a negative connotation from the rationalists of the Enlightenment in connection with the need for an objective approach to the knowledge). This is due to the fact that language in human consciousness creates a certain picture of the world (ordinary or scientific). As explained by H.-G. Gadamer, the Enlightenment and criticism of religion in the spirit of rationalism and Cartesians brought the meaning of the words Vorurteil (German) and. préjugé (French) to the value of "unreasonable judgment" because in the age of Enlightenment they believed that judgment had all the advantages only on the basis of methodological safeguards, so it was not possible to accept something that could be put in doubt [3, p. 329]. H.-G. Gadamer believes that prejudices of an individual constitute the historical reality of his existence to a much greater extent than his judgments, [3, p. 329].
From this period came the belief that science is completely liberated from tradition, being its product itself. H.-G. Gadamer explains that the requirement to be objective is already a prejudice, because "the mind is not the master itself, it is always depending on the actual conditions in which its activity is manifested" [3, p. 328]. Therefore, "the overcoming of all prejudices is the most common requirement of the Enlightenment which exposes itself as a prejudice, its revision opens for the first time the way for a proper understanding of the finitude which dominates not only of our human existence, but also our historical consciousness" [3, p. 328].
During antiquity, the word "prejudice", ("prejudgment") had a positive meaning. With regard to judicial practice, praeiudicium in Roman law was a decision that preceded the final judgment. The Latin verb praeiudiciare means to prejudge and possibly to damage one of the sides, in French préjudice (harm).
Prejudicial approval claims meant that the judge had only to establish whether there was a disputed right or circumstance referred to in intentions: they were based on praeiudiciales formula (formula prior decision). It was based on the positive significance of the legal value of prior decisions like legal precedents. Thus, prejudice contains the possibility of positive and negative assessments. The decision should be made before its final adoption. This meaning determined the use of the term "preliminary ruling" in European Union law (renvoi préjudiciel). In Russia the notion of "prejudicial" is also used in civil law regarding proceedings for which the judicial decision has been made.
Thus, our "prejudices" empede understanding the text. At the same time on the basis of the language picture of the world, we can conclude that "pre-judgment" applies to any discourse: 1) in a different historical period, 2) in other fields: legal, political, art, and 3) depends on the subjective, objective pictures of the world.
Methodology. When reading the written text communication is unilateral, it involves only the reader (the interpreter), ie there is a gap of the communication process. When reading historical text, one must be aware that his consciousness is different. Historical distance indicates the distinction between author and interpreter, "and this suggests that we understand differently, if we really do" [3, p. 351]."The meaning of the text always exceeds the author's understanding. We don’t understand better, but differently" - this position is opposed to the objective positivism of the Enlightenment, the decisive impetus for such understanding in hermeneutics, according to H.-G. Gadamer, was given by M. Heidegger.
Thus, we are talking about the correct understanding, "in spite of distorting influences that come from the interpreter" (linguistic picture of the world). Understanding a written text separated from us is explained as follows: "whoever wants to understand a text, constantly imposes meaning on it, and as soon as the first meaning becomes clear, he makes a preliminary sketch of the entire meaning. The understanding of the text is a constant revision, development, deepening the understanding of this meaning" [3, p. 319]. This imposing meaning again and again, making a semantic movement of understanding and interpretation, is the process described by M. Heidegger [3, p. 319]. Therefore, the first imposing should be the most adequate
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to the meaning, because preconceptions can lead into error. We should remember, therefore, our own bias, so that the text manifested itself in all its otherness and thus had the opportunity to oppose the actual truth to our own "prejudices". The goal of understanding is to be agreed in regard to facts.
Such understanding is similar to how the recipient responds to a letter, he understands on the basis of "sense expectations" and his knowledge of the case, but the author of the letter knows better the merits of the case. "Therefore, to understand means to understand first of all the case itself, and then to identify and understand any other opinion as such. The truest of all the hermeneutic conditions is, therefore a preliminary understanding emerging from our treatment of the same case" [3, p. 349]. This idea confirms the inseparability of the legal discourse from the content of the appropriate discipline.
By reveling prestructure of understanding (essentially the individual picture of the world of the reader), Martin Heidegger has shown what is made by the historical-hermeneutic consciousness, which must protect itself from anything that may prevent to correctly understand tradition, and for this, our expectations, anticipations must be deliberate, proper (so as not to distort what is read), fact-based and controlled (this is a linguistic principle, but in interpretation it is possible to see deliberate distortions). As far as the law or other Sciences are concerned anticipations may occur due to prior studies.
In the process of understanding meanings grow and turn into knowledge. The extension of the meaning takes place in concentric circles, according to H.-G. Gadamer, "at the heart of the hermeneutical problem there is the polarity of intimacy and alienation" [3, p. 349].
In contrast to classical philosophy, which believes that the cognition process is cumulative and occurs through deduction and induction, Heidegger argues that it occurs in the hermeneutic circle, his notion of circle has no negative value of the logical circle. In the logic, a circle has the value of a logical error in the proof, the error is that the truth of any thesis is justified by the same provision, which has yet to be proven [6, p. 602].
The hermeneutic theory of understanding (or interpretation) is based, as mentioned, on the concept of the circle within which there is a movement from general to particular and vice versa. According to this theory, the circular movement of understanding takes place back and forth within the text and is removed in its complete understanding.
Another aspect of the hermeneutic circle is the hermeneutic rule, worked out by ancient rhetoric and saying that "the whole should be understood on the basis of private and private – on the basis of the whole." Hermeneutics of the new time moved it from the oratory to the art of understanding. (For lawyers the distinction between the whole and private, genus and species is one of the universals of the legal technology that is clearly reflected in the French terminology, for example, infractions (offences): contraventions (administrative offences), délit, crime (crimes), etc.). There is a circular relationship. The process of understanding is to expand the unity of the understood sense with concentric circles. The particulars corresponding to the whole is the criterion of correct understanding. D. Doublet clarifies the mechanism of understanding: he draws a cylinder located on the time axis and swings it as a pendulum from the first meaning through the refinement and further along the cylinder.
Based on the foregoing theories the hermeneutic understanding is defined as understanding the meaning of texts, the development of other people's feelings, thoughts and decisions, content of texts, which has historical variability [7], as a reflection and "rethinking of things perceived" [8, p. 414]. It can be presented statically as an object of study and in the dynamics as a process, as a kind of "system idea activity" and as its result (result is the production of knowledge thanks to understanding). To highlight it as subject of study, it should be separated from knowledge, thinking and interpretations. Describing the hermeneutic understanding, we should note that it is directly connected to the hermeneutic experience, the experience of going beyond what the author said [8, p. 414]. By this the hermeneutic understanding differs from
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exegetical understanding, the back side of the dichotomy, upon which commentators rely, and converges with the theory of intertextuality.
V. I. Arnold presented a model of intertextuality that is created on the concept of dialogism by M. M. Bakhtin [9] and on certain provisions of hermeneutics, but in application to literature. The dispersed language of literature is comprehensive, so linguists study language phenomena in the texts of fiction. Since the typology of understanding depends on text type, it is advisable to apply the above model to the legal texts which have a high illustrativity . Usually, legal texts are the result of the interaction of multiple texts and discourses, oral and written, the result of the collective experience.
Intertextuality presupposes different kinds of "inclusions". "The central task is to establish inclusions, identify their sources and understand intexts as bi-directional units, which interact with source and host contexts" [8, p. 416]. On the basis of inclusions [8, p.415-416] in this model, it is useful to consider the judgment which is a conglomerate of written and oral discourses. It can be considered as the epitome of intertextuality. Judicial decision as a genre of the text differs significantly from the literary text, a model of intertextuality gives the opportunity to consider similarities and differences point by point and to decompose into elements the process of understanding, separating it from the interpretation [10].
Results. The article discusses the case of Lehideux and Isorni v. France before the European Court of Human Rights of 23 September 1998, [1*], in order to describe the elements of understanding legal discourse in contrast to the literary text on the basis of the following parameters of the model of intertextuality.
1.Code inclusions are inclusions from various spheres and of different styles. In the literature these can be single words, idioms, sayings, stylistically colored vocabulary (metaphors) that came from different areas. The text of the judgment has, on the one hand, a permanent institutionally formalized part, on the other hand, a variable part, which elements are interspersed in the above part, particularly in connection with cases from different spheres: environment, taxation, trade, human rights, etc.
Institutional part of the court decision is strictly regulated and formalized, its lexical and terminological composition depends on the branch of law, regulation, etc. In the present case, we see a combination of the vocabulary of common-language with terms (key words) of the case. In the text of the judgment there are three main groups of lexical units: 1)terms of registration of judicial decisions devant la Cour Européenne des droits de l'homme (European Court of Human Rights), requérants (appellants), Etat défendeur (the state defendant), requête (statement), les circonstances de l espèce (the circumstances of the case), appréciation de la Cour (Court's discretion), frais et dépens (expenses and court costs), judgment (decision),etc , 2) terms of particular case atrocités (cruelty), double jeu (double game), légitimité de la révision (the legality of a retrial), texte incriminé (the alleged text), apologie du crime et délit de collaboration avec l'ennemi (the glorification of the crimes of collaboration with the enemy), complicité (complicity), etc ; 3)expressions of the dispersed literature language : le pain de chaque jour (notre pain quotidien – our daily bread), sauveur (salvor), libération de la France
(liberation of France), trahir la patrie (to bring Home), controverse historique (historical argument). Groups 1 and 2 belong to the same key of legal text, group 3 reflects the key of common language.
Similarly, the model highlights the paragraph
2. Text inclusions, which consists of 1)institutional inclusions (articles of domestic law of France, ECHR (European Convention on Human Rights) [2*], etc); 2)texts in connection to the case: advertising text in defense of Marshal Petain. "Français, vous avez la mémoire courte, si vous avez oublié.." ("Frenchmen, you have a short memory if you forgot") printed in the newspaper Le Monde and placed in judicial decision, discourse of the hearings. The volume of text inclusions can be different.
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3. Internal and external intertextuality. In judicial decisions the combination of these two types of intertextuality is inevitable, with the only difference that in the judgment there is a collective dominant factor, particularly in the form of a combination of legal acts (ECHR, French legislation, judicial decisions and rulings), discourses of proceedings, discussions, reviews and interpretations and judicial practice.
The legal framework of the case, articles of the ECHR, judicial practice can be called external intertextuality.. This creates a legal culture within the framework of law and related knowledge, as well as general, timeless and unifying factor (picture of the world of law).
In the literature we see an individual subjective factor of the author of the text and of the reader, in the judgment internal (individual) factors are indirect, they are indirectly reflected in the collective factor. For example, in the present case, the section Thèses des comparants (Claims of applicants) says: "il s'est peut-être passé autre chose que ce que l'on croit" (according to the applicants, perhaps there is something other than what is usually assumed)" [1*, item 40]. From the point of view of intertextuality, the applicant represents individuality, although the plaintiffs may be few, the Government acts as one person (in the legal sense), although it is the collective body, external to the case. Another collective body which presented its point of view on this matter is the Commission. The presentation of the parties positions is external to the text of the decision. In this court decision there is no comparison of the points of view of three parties. The Court implicitly does it in its decision on the violation by the Government of France of the article 10 of the ECHR, speaking at the top of the relationship hierarchy of the applicants, the Government and the Court, and being the author of the text. The study of the parties positions is purely hermeneutical problem, because the Court goes beyond the texts of (positions), weighing the pro and contra in relation to a particular case. The Court's position is reflected in the relevant section of the resolution: Appréciation de la Cour (the discretion of the Court), where the Court assessed actions of the French Government, as it protects the ECHR and must understand how the Government is implementing the Convention [1*, item 58]: what is reflected in paragraph 58: En résumé, la Cour'estime d i s p r o p o r t i o n n é e et, dès lors, non n é c e s s a i r e d a n s u n e s o c i é t é d é m o c r a t i q u e, la condamnation pénale subie par les réquérants. Partant, il y a eu violation de l'article 10 (summarizing the Court considers disproportionate and therefore unnecessary in a democratic society the criminal sentence imposed on the applicants. Therefore, there was violation of article 10 of the ECHR). The Court assures the reader by the logic of arguments, not by eloquence.
This text falls under the requirements of the following paragraph:
4.Marking and visibility of inclusions, which reflects the "interaction between source and host contexts" [8, p. 424]. In legal discourse, in principle, there is no problems with the interaction between the source and the incoming contexts because their compatibility is predefined by the rule of law and the system, and also by the visibility of inclusions, if there are names and numbers of legal acts, for example, article 10 of the ECHR, as seen in the above text. Furthermore, legal texts can reflect the principles and legal provisions, the recognition of which requires relevant legal knowledge. Illustrative in this sense are expressions disproportionné, non nécessaire dans une société démocratique (disproportionate and therefore unnecessary in a democratic society). Assessing government compliance with articles of the ECHR, the Court often uses these expressions when deciding whether a Government action is proportionate and necessary in a democratic society, which has become a principle and is already in use without inverted commas (although the expression nécessaires dans une société démocratique appears in article 9 of the ECHR [2*]). This way of thinking is predefined by the role of the ECHR, i.e. in his argument, the Court goes on the track drawn by the source of law.
5.Sources. The problem of sources of law is central for different legal orders, because that determines their type. In the present case, the source of law is the ECHR. At its core, this problem differs from the problem of that of literature called "precedent texts". Precedent texts are not only the classics of literature, but "myths, folk songs, stories, prayers" [8, p. 426] and
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proverbs, sayings, "winged words." In French there is no expression "winged words", but there is the concept of adages (adagia), among them adages juridiques (legal adages) are a generic concept that refers to a discourse of "sound law". In French legal discourse we should note the medieval customary law having Roman or French origin, for example: non bis in idem (not twice for one and the same), dura lex, sed lex (the law is harsh, but the law), pas d'intérêt, pas d'action (no interest and no claim), une fois n'est pas coutume (once doesn't count). With the disappearance of customary law, they have turned to universals and principles
6. Place of inclusions. The order of the title, epigraph, preface, epilogue, comments, etc. is in principle strictly defined and is called the "paratextuality". Some of these rules apply in cultures in general, in French legal discourse, we see the combination of cultural and General legal principles, the legal pyramid of France is rigidly organized.
The court decision is, by definition, a combination of contexts, both verbal and written, organized and dispersed discourses, syncretism of intertextuality, a conglomerate of voices and texts describing facts of reality along with regulations, all this is considered by legal hermeneutics. The court is working with facts and norms. The asymmetry between the rule expressed in general and abstract forms and a concrete fact becomes evident, since the norm is not always congruent. By applying rules to specific facts and by interpretation lawyers examine the reality.
Since a written text has multiple meanings and is not completed, in former times, according to H.-G. Gadamer, hermeneutics had the task of correlating the meaning of the text with the concrete situation in which it must be perceived. "The original model here is a prophet of the divine wil who is able to interpret the word of the Oracle"[3, p. 365]. The same is true in law. H.-G. Gadamer indicates only two kinds of texts (divine and normative) that come into being when applied to a particular case. In legal discourse he saw legal hermeneutics.
Legal hermeneutics is reflected in the grammar of the French language. As shown above, intertextuality takes into account the presence of the author in the text and its interaction with the reader. Linguistics formulate it on the basis of the theory of modality. The modality of the text is manifested not only in the will or in the speaker’s attitude to the utterance, but also in showing that the assertion does not come from him. The native French speakers know that the conditional mood in the language of journalists is used when a journalist wants to show that the news does not come from him, that he refers to a source (in order to avoid accusations of distorting the truth). The same meaning is combined with the uncertainty about the news. In Russian such cases are lexically expressed: "as it is known" "as reported", "they say", "it seems that", etc. For example, in the sentence: Il a u r a i t une femme et deux filles, installées à Vienne, mais personne à Paris ne les a jamais rencontrées. Une c e r t i t u d e, en revanche:
Alexandre est bien le fils de son père (They say that he has a wife and two daughters living in Vienna, but in Paris nobody had never seen them. But what is certain is that Alexander is his father’s son) [3*] not only the conditional mood (Il aurait une femme et deux filles) shows the inaccuracy of information, but also the second sentence: Une certitude, en revanche.
We see this phenomenon in judgments: when the court outlines other positions (not the court’s position) in the reasoning, the conditional mood is used, especially in the section Arguments des parties (parties' Arguments). This rule is strictly implemented in the decisions of the courts of France, ECHR (European Court of Human Rights), of the EU Court of Justice, etc. This is evidence of a grammatical characteristic of the French language objectified in law. This fact is strengthened by the column titles.
For example, in the case C-50//08 [4*], the title Argumentation des parties (parties' Arguments) reads: 41. Le fait que le notaire engage sa responsabilité lors de l établissement des actes notariés le r a p p r o a c h e r a i t de la plupart des professionnels indépendants, tels que les avocats, les architectes ou les médecins dont la responsabilité s e r a i t é g a l e m e n t e n g a g é e dans le cadre des activités qu'ils exercent (The fact that the notary may be liable while performing notarial actions, brings him close, in the opinion of the Commission, with the majority of self-employed professionals, lawyers, architects and doctors who are also, according to
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the Commission, responsible for carrying out their activities). Verbs in the conditional mood rapprocherait and serait également engagé are translated in the indicative mood with the addition of the words: in the opinion of the Commission and according to the Commission, because the Court expounded its position.
If a sentence is not verbalized and does not have the logical-grammatical features of the norm (hypothesis, disposition, sanction), in the regulatory document it is "actualized", marks the normativity under the influence of the branch of law. For example, article 1 of the ECHR :
Les Hautes Parties contractantes reconnaissent à toute personne relevant de leur juridiction les libertés et droits définis au titre 1 de la présente Convention [2*] (The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section I of this Convention).. This article means that signatory States to the European Convention on human rights, are bound by the positive obligation (obligation de faire) to defend democracy in their countries. In the reasoning of the European Court of Human Rights this article is cited as a part of the syllogism in the sense of "but the government has pledged to protect democratic rights and freedoms".
Such parameters of the model, as functions of inclusions, comparability of contexts, transformability of quotes and genre differences seem to be original and cannot be easily distinguished in literature. Unlike artistic text, in which inclusions can enhance the expressiveness, a stylistic coloration, the official style of legal discourse should be relatively neutral, and inclusions are designed to enhance motivation and credibility, meaningful informative text. When deciding, the Court compares the contexts, in particular, texts that reflect the circumstances of the case, with contexts involving questions of law. Quotes can be fragmented, hidden, or presented in the form of reminiscences.
Conclusion. This article discussed the problem of the hermeneutic understanding of legal discourse on the basis of criteria applied to artistic text, which allowed to draw the following conclusions. The criterion of legal discourse are more stringent than the criteria applied to artistic texts. At the same time, it is possible to note a certain parallelism of universals, ideas, inclusions, interactions, some of which are more relevant for literary texts, the others for legal. It depends on the genre of the discourse.
In the judgment, the understanding is integrated, there is always two positions: pro and contra that gives objective parameters and facilitates understanding. In accordance with the model in a literary text there is relationship between the author and the reader, in the text of the court decision there is legal relationship: opposition of parties, attitude to the object and the position of the Court.
The article presents a linguistic approach to the problem of understanding the court decision in its verbalized form. If we consider understanding as the comprehension of the internal relations of the text, as a movement to knowledge and to the whole, then from the legal point of view the options shown do not seem fundamental, for legal understanding of the court decisions is to determine issues of law, which was decided by the Court, and this requires knowledge of the relevant branch of law and interpretation.
Syllogistical nature of the discourse of judicial decisions in France should be seen as the most striking feature in contrast to the discourse of art works, because it represents the result of applying rules to specific facts (qualification of the fact and choice of standards for subsumee are not described, as they relate to the interpretation, despite the fact that between interpretation and understanding there is an internal unity). Hermeneutic understanding of a legal text is to establish harmony between the written act, legal order and a fact of life and shows the syncretism and the fine line between understanding and interpretation.
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