Katarzyna Strębska,

Institute of English, University of Silesia

Epistemic markers in a Supreme Court judgment: a comparative American-Polish

analysis of a genre

Wyznaczniki modalności epistemicznej w wyroku Sądu Najwyższego: analiza

porównawcza gatunku w systemach polskim i amerykańskim

Streszczenie:

Poniższa analiza ma na celu zbadanie typów i częstotliwości występowania językowych wyznaczników

modalności epistemicznej w wyrokach polskiego i amerykańskiego Sadu Najwyższego. Korpus zawiera
dziesięć przykładowych wyroków w każdej z wersji językowych. Modalność epistemiczna, jako wyrażająca
stosunek mówiącego do treści wypowiedzi, stanowi w pewnym sensie ramy pozwalające ocenić rolę sędziego
w procesie decyzyjnym a ta, z kolei jest z założenia różna w systemach prawa stanowionego oraz systemach
common law. Przyjęta w pracy metodologia, siłą rzeczy uproszczona, pozwala na porównanie najczęściej
pojawiających się wyznaczników modalności epistemicznej podzielonych przez autorkę na: kategorie
gramatyczne (czasowniki, wyrażenia czasownikowe oraz zdania dopełnieniowe a także modyfikatory modalne)
a także o różnym stopniu perswazji (o niskim stopniu, neutralne oraz o wysokim stopniu perswazji).

Na przykładach systemów amerykańskiego i polskiego można więc zweryfikować, czy w istocie ideologiczne
założenia systemów prawnych znajdują swoje odzwierciedlenie w warstwie językowej.

1.1 Remarks concerning the judicial systems of the United States and Poland

Supreme Court decisions are the ones “charged” with the highest degree of responsibility.
Regarding the functions performed by both, Polish and American entities that are the subject
of the present study (respectively, Supreme Court of the United States and Polish Sąd
Najwyższy) there are differences on numerous levels, notably as regards the involvement of
the judge in the policy making process and, consequently, the construction of the court’s
decisions. The consequences of these decisions are far-reaching, in particular with regard to
the American Supreme Court whose judgments may affect such domains of social and
political life as: individual rights (discrimination based on sex, race, ethnicity, birth control
and abortion), criminal law (freedom from unreasonable searches and seizures, right to an
attorney, right to remain silent, capital punishment, detainment of terrorism suspects),
federalism, First Amendment rights (freedom of speech and of the press, freedom of religion,
freedom of association, freedom of petition), Second Amendment rights etc.
The research questions of the present study are as follows:

1. What is the relative distribution of epistemic modality, in terms of the types (i.e.,
orientations and values), in the Polish and American Supreme Court judgments,
respectively?
2. What similarities and differences in terms of types arise out of the analysis?
3. What consequences in terms of the judge’s involvement this might have and whether it
can find its reflections in the systemic foundations which will be outlined shortly in
the section to follow.

It might seem that, whether we deal with common law or civil jurisdiction, the main objective
is to establish the true version of events that led to the trial. However, it is not the truth value
of the proposition with which we should evaluate the content of a court judgment since its
subjective nature will necessarily become apparent. In summary, we could say that judge’s
statement represents (in the civil law) an interpretation of the existing norms or, more
precisely, the subsumption of facts to suit the particular legal norm or, in the common law,
comparing the facts and the existing legal rules formulated in the precedents in order to
determine whether this particular rule can be followed or whether a new one should be
created. In doing this, judges are not simply describing the reality in terms of black and white’
or ‘yes and no’ binary opposition schemes but rather refer to a scale of the ‘possible’ and the
‘probable’. The above depiction of the language of the judgments might bring to mind
Halliday’s definition of modality referred to as: “the area of meaning that lies between yes
and no: the intermediate ground between positive and negative polarity” (Halliday 1994: 356).

And that is where modality comes into play. We shall outline the main theories that have
hitherto been proposed by various authorities in the sections to come. The following section
shall, in turn, delineate the systemic foundations of both, American and Polish legal systems.
Such a background will later serve as a departure point for the analysis of the judge’s role in
the decision making process.

1.2. American common law systemic foundations:

Crucial to the understanding of the common law, in particular the role judges are to fulfil
within it, is the concept of the precedent. As explained by Pomorski, it was not until the 19 th
century that the precedent acquired its constitutive character as the sine qua non condition of
the common law system: “The binding character of single precedents was established in the
course of a long evolutionary process and first crystallized as a binding principle in the
English and American legal systems in the 19 th century. Henceforth, the common law ceased
to be the customary law of the court and became a law enacted by the court” (Pomorski 1975:
36).

The principle of following precedents is also referred to as stare decisis. According to online
legal dictionary it may be defined as:

”the doctrine under which courts adhere to precedent on questions of law in order to insure certainty,
consistency, and stability in the administration of justice with departure from precedent permitted for compelling
reasons (as to prevent the perpetuation of injustice).”

(source: http://dictionary.findlaw.com/definition/stare-decisis.html)

Somehow similar to the doctrine of the precedent is the procedure of distinguishing defined as
rejecting the application of ratio and creating, in turn, a new narrower ratio that will serve as
the basis for delivering the judgment (ibid: 94). This occurs when the material facts of the
case do not correspond to each other to the extent that the judge is compelled to draw a
distinction between his/her own case and the precedent case.

Article III. of the United States Constitution is specifically dedicated to the Judiciary. Its
section I. states as follows:

“The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall
hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation,
which shall not be diminished during their continuance in office.” 1

“It is emphatically the province of the judicial department to say what the law is.”

The above statement is commonly said to have established a precedent fundamental for the
United States legal system. Uttered by Chief Justice John Marshall as a result of Marbury v.
Madison case of 1803, it neatly summarizes the role the Supreme Court is to perform vis-à-vis
the two other branches of government: the legislative and the executive.

1.3. The Polish Supreme Court and its systemic foundations:

1
source: http://www.archives.gov/exhibits/charters/constitution_transcript.html
Article 175 of the Polish Constitution stipulates that:

“The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the
common courts, administrative courts and military courts.” 2

Although the Polish Constitution does not specify the structure of the common courts, it does,
however, in its article 176 paragraph 1, impose the two-level court system. The Law on the
system of common courts goes even further in that it introduces three instances of court
procedure (Garlicki 2011: 337).

If no extraordinary circumstances or interpretational problems occur, the court sits and

decides the cases in a bench of three judges. However, if serious doubts as to the
interpretation of the provisions arise, a bench of seven judges will accept to determine the
answer to a request or refuse to accept it. It may also review the case in its entirety of the
particularities so require.

Article 61 of the Act on the Supreme Court specifies what conditions need to be fulfilled
when adopting resolutions: if the Supreme Court accepts to adjudicate the case and
furthermore, the previous judgments invoke provisions or rules that arouse serious doubts as
to their meaning or scope of application. According to article 61, paragraph 1 of the said Act:

Art. 61.
§ 1. If a Supreme Court bench decides that the submitted question requires clarification, and that the revealed
discrepancies need to be adjudicated, it shall adopt a resolution. 3

A bench of seven judges is authorized to grant the power of legal principle to a resolution if
the gravity of the matter so requires.

1.4. The genre of court judgment: common law and civil law variations
1.4.1. American counterpart

As far as the common law judgments are concerned, the main body of a decision contains a
part which, in its essence, will be binding for the judges deciding analogical cases, and the
part which will be insignificant for the future considerations. The former is referred to as
ratio decidendi while as the latter is known as obiter dicta (“other things said”). Nonetheless,

2
The Constitution of the Republic of Poland dated 2nd April, 1997, The Journal of Laws No. 78, item 483.
3
Act of 23 November 2002 on the Supreme Court, Journal of Laws dated 2002 no. 240, item 2052
their names are not included in the judgment and hence it may not be clear for the interpreters,
that is, the judges, which statements are vested with the power of precedent and which can be
omitted.

A typical common law judgment can be divided into the following parts:

 Facts in issue (including reference to previous cases that bear resemblance to the case
at hand),
 Summary of statements and arguments put forward by the parties to the proceeding,
 Statement of reason (justification of the decision) (Koszowski 2009: 29-30).

Analogically, the structure of the U.S. Supreme Court judgment will be based on the reference
to the facts of the case together with the history of appellation and the justification where
reference to precedents is made. The part containing statements and arguments of the parties
is not included in the Supreme Court opinions since it is at the level of the trial courts where
each party's counsel is required to make oral submissions and draw the judge's attention to the
relevant evidence and law (where appropriate, the expert witnesses testimonies are also made
part of the proceedings).

The main body is concerned with stating the reasons, as in the case of the lower courts’
judgments, the difference being the gravity of the matter dealt with and, consequently, the
types and frequency of the markers of epistemicity employed which shall constitute the object
of the present analysis.

Let us also invoke a somewhat interesting view expressed by Shapiro who draws a distinction
between the court’s decision and its opinion and, at the same time, observes the reluctance of
the public towards viewing a judicial opinion as of virtual impact on the social and political
life:

“We have tended to neglect the most characteristic phenomenon of judge-made law-that the judicial opinion-
i.e., the judges explanation or justification of his decision-serves not only as an "internal" defense related to his
craftsmanship, wisdom, etc., but an "external" communication to others (particularly judges, administrators and
counselors) as to how they should act in the future (…) most [studies] are directed to a court decision (not
opinion) viewed as a simple command (desegregate the schools, don't read the Bible, say certain words to the
suspect), and the research task has been to discover the extent to which the command was obeyed and more
ambitiously the variables contributing to greater or lesser obedience” (Shapiro 1970: 86).
1.4.2. Polish counterpart

A judgment in the Polish legal system (a civil or a criminal one) may be defined as a
declaration of will of imperative nature vested with the force of law and issued by an
adjudicating body (a court acting in the name of the Republic of Poland) (Skorupka, 2012:
239). The validity of judgments (in Polish: prawomocność wyroku) has its sources in the legal
norm.

Concerning the classification of court rulings, the judgment belongs to the general group of
“rulings” (orzeczenia) to which we also include decision (postanowienie), resolution of the
Supreme Court (uchwała Sądu Najwyższego) as well as an order for payment (nakaz zapłaty).

Both civil and criminal judgments should contain a sentence (an introduction and the
resolution) as well as a statement of reason.

As may be expected, the statement of reason will be linguistically marked with epistemicity in
a greater extent than the first, informative, part. Here, the consenting and dissenting opinions
will be expressed by the adjudicating panel and most typical argumentation schemes
employed by the judges will occur.

1.5. The corpus:

The corpus consists of 20 sample judgments that have been taken from the Database of the
Polish Supreme Court’s judgments available at: Http://sn.pl/orzecznictwo/SitePages/Baza
%20orzecze%C5%84.aspx (as regards the Polish version) and the American Bound
Volumes of the Supreme Court’s judgments and opinions available at:
http://www.supremecourt.gov/opinions/boundvolumes.aspx (the American corpus).

Considering the incongruity of ‘ordinary’ decisions made by the Supreme Court in Poland
(delivered by a reduced panel of one or three judges), with their American counterparts in
the case of the Polish part, the author has selected only the resolutions passed by a body of
seven judges as those having the force of a legal principle.

A bench of seven judges is authorized to grant to resolution the power of a legal principle
only under particular circumstances justified by e.g. the gravity of the matter.
Such resolutions, although not binding upon the lower courts, may nevertheless be invoked
as a source of authority. They can hardly be called precedents since they become binding
only upon the Polish Supreme Court itself, not upon the lower common courts.

1.6. Epistemic modality: definitions and general typology:

Modality in its broadest sense has been so far studied and reviewed from many different
angles and each author points to its different aspect. Whether approached from grammatical,
semantic, pragmatic or discursive perspective, it might be defined by describing ways of its
realization in a given language (e.g. in English either through verbal morphology or lexically,
with modal verbs) or by referring to the ‘sets of possible worlds’ where a given proposition is
true or possible according to the speaker’s knowledge. The latter approach draws on the so
called modal logic dating back to the 1950s and 1960s. According to the Stanford
Encyclopaedia of Philosophy, we might distinguish between the modality of things and
modality of the propositions (modality de re and modality de dicto). This difference might be
studied by analysing the two below examples:

1. All dogs are mammals, essentially.

2. Necessarily, all dogs are mammals.

The truth conditions for both modalities involve a commitment to possible worlds 4. Since in
the present study we are limiting ourselves to the latter, that is the modality of the
proposition, let us for the time being conclude that modality of the proposition is used to
indicate the possibility or necessity of some piece of knowledge. In the epistemic use, modals
can be interpreted as indicating inference or some other process of reasoning involved in
coming to the conclusion stated in the sentence containing the modal (Carrio Pastor 2012:
118).

In his own definition of epistemic modality, Palmer draws our attention to the status of the
proposition. As he views it, epistemic modality is ‘the stauts of the proposition in terms of the
speaker’s commitment to it’. (Palmer, 1986: 54-55).

Regarding the typology of modality, one of the most often invoked is where modal meanings
are seen as either referring to the truth of the modalised proposition, or as indicating the
necessity or ability of an agent to perform the action specified by the proposition containing
4
Source: http://plato.stanford.edu/entries/possible-worlds/
a modality marker. The former type includes alethic and epistemic modality; the latter,
deontic modality (Lyons, 1977: 791).

One effect of using an epistemic modal (as opposed to not using one) is a general weakening
of the speaker's commitment to the truth of the sentence containing the modal. However, it is
disputed whether the function of modals is to indicate this weakening of commitment, or
whether the weakening is a by-product of some other aspect of the modal's meaning (Carrio
Pastor 2012: 118). Examples of the expression of epistemic modality in English are:

3. John might have that book you are looking for (low probability, the speaker is not
sure but is basing on his/her limit knowledge, e.g. judging by John’s versatility and
erudition),

4. John should be earning a lot of money (high probability, the speaker has solid
evidence, e.g. the fact that John drives an expensive car and lives in a luxurious villa),

5. John must be the one who will get promoted (certitude, no doubt, e.g. there is no other
candidate who could compete with John).

In contrast, deontic modality is concerned with possibility and necessity in terms of freedom
to act 5. English examples include

6. John can speak five languages fluently (ability),

7. You may go to the party (permission),

8. You should wear your winter coat and a scarf (request), and

9. You must be ready by five (command).

In English as in many other languages, some of the same words are used for both: the deontic
modality and the epistemic modality, and the meaning is distinguished from the context: He
must be there by now (epistemic) versus He must be there tomorrow at noon (deontic)
(Chung and Timberlake 1985: 246-247).

The tables below present a classification of modality categories as proposed by Halliday:

HIGH Must, ought to, need, have to, be to

5
Source: https://en.wikipedia.org/wiki/Linguistic_modality
 MEDIAN Will, would, shall, should
LOW May, might, can, could
Table 1.1: Three values of modality. Adapted from Halliday (1985, p. 337)

PROBABILITY USUALITY OBLIGATION INCLINATION

High Certain Always Required Determined

Median Probable Usually Supposed Keen

Low Possible Sometimes Allowed Willing

Table 1.2: Semantic distinction of modal verbs according to their value. Adapted from
Halliday (1985, p. 339).

Epistemic modality in legal settings encodes the speaker’s (in this case: the judge’s) stance
towards the truth value of the proposition. Various studies have indicated its relation to e.g.
conviction (Halliday 1994). Additionally, it can be realized through various means such as
modal verbs (e.g., ‘may,’ ‘might’ and ‘must’), adjectives (e.g., ‘possible,’ ‘probable,’
‘necessary’), adverbs (e.g., ‘probably,’ ‘likely,’ ‘perhaps’), nouns (e.g., ‘possibility,’
‘probability,’ ‘necessity’), and phrases (e.g., ‘in my opinion,’ ‘in all likelihood’) (Halliday &
Matthiessen, 2004, pp. 613–625).

Alongside the distinction into epistemic and deontic modality we should also mention the
existence of another dichotomy often referred to when speaking about modality, that is the
realis and irrealis moods. As Chafe explains “realis as an expression of states and events
which “are believed by the (…) speaker to accord with objective reality on the basis of direct
observation, memories of directly experienced past events, or his or her knowledge of the
world. Irrealis is an expression of a state or an event which “is imagined rather than directly
perceived or remembered” (Warchał after Chafe, 2014: 60).

Two common irrealis moods are the conditional mood and the subjunctive mood.
Methodology and analysis:

The analysis considers lexical markers of modal epistemicity that have been arranged into
categories most often occurring in the corpus. The grammatical categories include:

 lexical verbs (including personal and impersonal structures, e.g. Polish „można”,
„należy’” ‚trzeba”).

 verb phrases or clausal complements (e.g. adjective+copula with extraposed subject:

it is+certain/possible/impossible/inconceivable etc.).

 Modal modifiers (certainly, definitely, doubtless, undoubtedly, without (a shadow of a

doubt).

The epistemic categories are divided into tentative, neutral and strong which roughly
corresponds to the scale used by Halliday when dividing markers of modality (low, median
and high value cf. Halliday 1985: 337).

The categories of the degree of the strength of an utterance used in the study include :

In English:

-tentative opinion (expressing doubt, hesitation, e.g.: it would be

better/improper/incorrect/ill-advised, it may be, it seems likely, it would be desirable,
preferable, permissible, conceivable)

-neutral opinion (markers of this category, mostly lexical verbs, usually perform the function
of assuring coherence in the applied line of argumentation, e.g. think, conclude, feel, seek,
hold, find, set forth, agree etc.);

-strong opinion (expressing certainty, e.g.: undoubtedly, there’s no doubt, there can be little
doubt, of course, most certainly, it’s clear that).

In Polish:

- tentative opinion (expressing doubt, hesitation, e.g.: można, jest wskazane, warto,
wymagać rozważenia)

- neutral opinion (like in the case of English, these are mostly the verbs that assure
coherence between the discourse segments, e.g.: uznać, wskazać, podnieść,
stwierdzić, zdaniem Sądu)

- strong opinion, reiterating and emphasizing a point (e.g.: nie można/powinno

(się)/trzeba/należy, jest oczywiste/niezbędne/zasadne/konieczne/istotne/trafne,
niewątpliwie, nie ma wątpliwości, że).
 ENG lexical verbs verb phrases/ clausal Modal modifiers
complements

TENTATIVE 6 (e.g. „feel”, 10 4 („probably”,

„doubt”) „supposedly”,
„allegedly”,
„possibly”)

NEUTRAL 32 0 0 (no neutral

modifiers)

STRONG 12 (verbs of 5 10
negation, e.g.:
deny, refuse,
reject)

Table 2a. QUANTITY ANALYSIS: epistemic markers in the American corpus:

POL Lexical verbs verb phrases/ Modal modifiers

clausal
complements

TENTATIVE 0 8 (e.g.: można, jest 0

wskazane, wymaga
rozważenia)

NEUTRAL 10 0 0

STRONG 0 (no negation verbs) 42 (e.g.: trudno nie 4 (only

dostrzec, nie „niewątpliwie”
budziło wątpliwości occurring 4 times)
+ „należy”)

Table 2b. QUANTITY ANALYSIS: epistemic markers in the Polish corpus

As can be observed, in the Polish corpus: a substantial part is taken by the interpretation of the
relevant provisions and statutes (no opinion is expressed, just explanatory measures are
employed).
In the English part of the corpus: tentative expressions are more frequent (in Polish only
impersonal constructions occur but with low frequency: „można”, „warto”, „jest wskazane”,
„xxx wymaga rozważenia”).

The neutral category is most often represented by the lexical verbs; in the Polish corpus no
strong nor tentative lexical verbs have been found, the intensifying function is performed
either by the verb phrases or modal modifiers („niewątpliwie”).

Modifiers in the Polish part of the corpus are mostly used in the intensifying function (no
weakening modifiers like „przypuszczalnie” „prawdopodobnie”, „możliwie” have been
observed which would point to hesitation or tentativeness in judicial reasoning).

No negation verbs like „odmawiać”, „zaprzeczać” are used in the Polish Supreme Court
corpus; in the American corpus verbs like „refuse”, „reject” occur quite frequently.

One might also observe a relatively frequent use of the impersonal construction „należy”
(należy wskazać, należy odnieść się/zauważyć) in the Polish corpus. The use of many of the
phrases is dictated by the convention which imposes such and such style to be followed.

On the basis of the data so far collected, we could consider the Polish judicial language as
more categorical but in the end it is difficult to determine which corpus uses stronger
language and which is more tentative. For this end, larger corpora would have to be analysed
in order to draw such conclusions.

1.7. A sample analysis of two common court judgments in English and Polish

In parallel, a sample analysis of two common court judgments in English and Polish has been
conducted. Sample court judgment have been taken from: http://forum.infor.pl/topic/306667-
wzor-wyroku-w-sprawie-karnej/ and
http://www.judges.org/capitalcasesresources/bookpdf/appendices/Sample%20Sentencing
%20Orders.pdf

The results and inferences also reveal that English judges use more tentative language. In the
Polish part of the corpus a greater number of categorical epistemic markers has been used
than in the English part.
However, in drawing its inferences, the Polish court is always referring to the witness
testimonies or an explanation provided by the defendant himself as sufficient evidence. Thus,
rather than applying ‚common sense’, it seeks to find confirmation of its reasoning in either
statutory sources or witness testimonies whose reliability and truthfulness are rarely put into
question. The examples below demonstrate that this is indeed the case:

“Zgodnie z dyrektywą zawarta w art. 58 § 1 k.k., sąd orzeka karę pozbawienia wolności bez
warunkowego zawieszenia jej wykonania tylko wtedy, gdy inna kara lub środek karny nie
może spełnić celów kary”.

„Z przepisu tego jednoznacznie wynika, że orzekanie bezwzględnej kary pozbawienia

wolności powinno być ostatecznością.

In the Polish counterpart we encounter a number of categorical statements that clearly show
the degree of certainty of the court as to the propositional content of the
utterances/testimonies referred to:

„Bezsporny jest fakt, że kierowca przedmiotowego pojazdu był oskarżony (...). Wynika to
przede wszystkim z wyjaśnień samego oskarżonego, który od samego początku konsekwentnie,
toż samo opisywał przebieg wydarzeń z dnia 28 czerwca 2008 r.”

„znajdują (…) potwierdzenie w zeznaniach świadków.”

„Osoby te logicznie, spójnie i tożsamo opisały przebieg wydarzeń z przedmiotowego dnia i

dlatego ich zeznania w tym zakresie są zdaniem sądu wiarygodne.”

“Zdaniem sądu powyższa opinia jest miarodajna. Jest rzeczowa, pełna i jasna i dlatego też w
całości zasługuje na uwzględnienie.”

„Reasumując, wszystkie opisane dowody uzupełniają się i tworzą logiczną całość, nie
pozostawiając zdaniem sądu żadnych wątpliwości co do tego, ze oskarżony winny jest
popełnienia zarzucanego mu występku.”

Basing on the analysis of the lower courts’ judgments, we would attribute greater
interpretative freedom to common law judges who, although bound by the existing
precedents, display evident criticism when confronted e.g. with an expert testimony.

Such expressions as “there must have been no other logical reason” or “it would be illogical
for the defendant to…” point to resorting to logic or common sense, rather than the written
law from which the court infers its conclusions. The sentence below also confirms that this is
indeed the case:

“It would be illogical for the defendant to kill Leah in order to eliminate her as a witness and
then confess to the crime moments later.”

The common law version contains a greater range of evaluative expressions that display the
court’s attitude towards a given line of argumentation. This is shown for instance by the
frequent use of the phrase: “to give little/moderate/great weight to something” as in:

“this aggravator is given great weight.”

“(…) since Roseanna Morgan was the first victim to be killed, this aggravator is given only
moderate weight.”

Critical attitude is shown towards evidence as well as towards expert testimony:

“Dr. Riebsame’s opinion is more supportive of the evidence in the case and it is accepted by
the court.”

What is more, the court expresses a critical attitude towards not only the evidence presented
to it in the course of the proceedings (as shown above), but also to some general rules that are
found not compatible with the judge’s opinion:

“… in People v. Phillips, 64 Cal.2d 574, 582-583, 51 Cal.Rptr. 225, 415 P.2d 353, 360
(1966), the court stated, "We have thus recognized that the felony-murder doctrine expresses
a highly artificial concept that deserves no extension beyond its required application. Indeed,
the rule itself has been abandoned by the courts of England, where it had its inception. It has
been subjected to severe and sweeping criticism.„

Additionally, the evidence presented to the court is not accepted as an undeniable proof:

“The evidence does not establish beyond a reasonable doubt that the defendant premeditated
the murder of Leah Caday.”

“In considering all of the circumstances of this case, the court finds this aggravating factor
has not been proven beyond a reasonable doubt.”
1.8. Final conclusions

When comparing the Supreme Court corpora of both legal systems, it is in Polish where
greater weight is given to the external sources such as statutes, the doctrine, expert opinions
etc.

Regarding the general ‘systemic’ observations, it cannot be denied that the pragmatic way of
thinking of common law judges (or. at least, the pragmatism that figures as a consciously
striven-for ideal) ensures the dynamic character of law and thus, the legal ‘state of the art’
corresponds to the actual circumstances and might be applied to the particularities of the case.
Its contemporaneity and currency vis-a-vis the changing definitional frames of what actually
constitutes ‘common sense’ and ‘common logic’ becomes a fact, not a mere delusion.

Among Polish jurists, it is assumed that the principle of stare decisis somehow impinges upon
the autonomy of the judges and is thus rejected by the doctrine. Does it mean that Polish art of
adjudicating is more subject to becoming incongruent with the status quo? Polish judges,
although in principle autonomous, are in fact constraint by the statutes which are, in turn,
more difficult to amend than the precedents which can always be distinguished (cf. section
1.2. for more precise explanation of the procedure of distinguishing). This trend is clearly
observable in the corpus so far analysed.

However, even among statutory law jurists, there is a growing approval for the principle of
jurisprudence constante according to which judges should deliver their decisions in a
predictable and ordered way. This predictability is not always ensured by strict adherence to
the statutes since each judge may interpret them in his/her own way depending on the facts
and circumstances of the case at hand. There are thus two, seemingly irreconcilable tenets: on
the one hand emphasis is laid on the autonomy of a judge who should remain neutral and
withdrawn from any issues whether of political or social nature. On the other hand, some
coherence in the line of argumentation as well as in the decision-making process should be
observed.

As the administrator of justice, a judge is constraint by the letter of law but there is also the
social element, the extra-linguistic factors, that need to be taken into consideration. Insofar,
the sentence is to reflect the ‘common sense’ of the community understood as an ordinary
meaning ascribed to the word (cf. the literal interpretation that is employed as the prototypal
method of interpretation).
My final, albeit guarded and heedful, hypothesis is that if larger corpus were to be studied, it
would probably reveal that the American judges use more tentative expressions which in fact
reveal more autonomous argumentation conducted independently of external statutory sources
(in Polish laws contained in the Statutes seem to be taken for granted and are rarely, if ever,
put into question).

It should be also noted that the language used in judgments is subject to conventions and
relies on time-honored expressions. Nevertheless, their analysis allows us to gain insight into
how systemic factors influence the role of the judiciary and how, in turn, this can be traced in
the language used by the judges.

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Online references:

14. Polish Supreme Court’s judgments: Http://sn.pl/orzecznictwo/SitePages/Baza

%20orzecze%C5%84.aspx;

15. American Supreme Court’s judgments:

http://www.supremecourt.gov/opinions/boundvolumes.aspx

16. Stanford Encyclopaedia of Philosophy: http://plato.stanford.edu/entries/possible-

worlds/