Language and law 7

Languageandlaw 7 Writtenlegallanguage

Activity • Make a list ofthekindsoffeaturesassociatedwithlegallanguage. Do notworryaboutthe ‘proper’ name for thefeatures; perhaps start justbywritingdown some examplesorphrasesthatseemcharacteristicoflegaltexts • www.balii.org • www.law.cornell.edu • www.austlii.au

Writtenlegallanguage • Precision (e.g. definitions) • Informationoverload • Abbreviations • Intertextuality • Syntactic complexity • Nominalization • The use ofdoubletsandtriplets (breakingandentering, nullandvoid, lastwilland testament) • Archaisms • Latin terms (ratiodecidendi, obiterdicta, stare decisis)

Sayingittwice: example • Breakingandentering • Nullandvoid • Fit andproper • Aidandabet • Goodsandchattels

activity • Considerthepairsabove. Doeseachpartofthepairmeanthe same thing? Lookupeachofthepairsin a dictionary

Binomials • Afterthe Norman Conquest (1066) a largenumberofFrenchwordswereborrowed • Itbecamecomon to use boththe English andtheFrenchterm for the same conceptor referent • Therewas some doubtwhetherthewordswerefullsynonyms; itwassafe to includebothvariantsjustincasetherewas a differenceofmeaning • Anotherreason: thepoeticfunctionoflanguage: binomials provide a certainrhythm; suggestformalityand ritual, which are important to thelaw

Example • I swear to tellthetruth, thewholetruthandnothing but thetruth • ‘thewholetruth’ – ‘liesofomission’ are notallowed • The formula has a poeticfunction, signalstheimportanceoftheoath

Propertiesrequiredof legislative language • 1. a law should be concise • 2. Legislative language should respect rules of grammar (correctness) • 3. It should use terminology consistently (precision) • 4. It should avoid ambiguity (clarity) • 5. Laws should be formulated in a logical way, and the reasoning should be coherent

Precision, vaguenessandambiguityinlegallanguage • „Natural languagebeingsuch a breedingground for ambiguity, to communicatejust one set ofmeaningswhileexcludingmanyothersisoftenimpossible; but thelawyer must at least make theeffort, andlegallanguagehasmanyodditiesthat are clearevidenceofthekindsofeffortthathavebeenmade” (CrystalandDavy 1969: 193) • Vagueness – acceptableinlegallanguage (general statements) • Ambiguity – notacceptable (multipleinterpretations)

Precision: Definitions • Legal terms may have multiple meanings (polysemy) • Therefore, they are often defined within a particular context to avoid mistakes and misunderstandings • Legal language – many definitions • Corpus iuris civilis (Code, Digest, Institutes, Novellae; the Digest: 246 legal definitions)

Definitions • Real and terminological • Real d.: concern entities that exist in reality in the physical world (e.g. real property) • “Goods are movable by their nature, or if the law so determines” • Terminological d. only exist in legal reality (e.g. an obligation)

Example: • MEANING OF “HOUSE” AND “HOUSE AND PREMISES”, AND ADJUSTMENT OF BOUNDARY.- (1) For purposes of this Part of this Act, “house” includes any building designed or adopted for living in and reasonably so called, nothwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes; and-

Example (cont.) • (a) where a building is divided horizontally; the flats or other units into which it is so divided are not separate “houses”, though the building as a whole may be; and • (b) where a building is divided vertically the building as a whole is not a “house” though any of the units into which it is divided may be…. (p. 68)

Vagueness v. precision: examples • Reasonable: • Reasonableman • Beyondreasonabledoubt • Reasonableforce • Reasonablyforeseeable

Information overload • Modern, complex society – enormous number of legal rules • Legal language should be as concise as possible to avoid laws and regulations that would otherwise be over-long and unclear • At the same time, legal language should avoid over-abstraction to enable decoding with minumum effort

Information overload • The key: to know for whom laws are written – experts or citizens? • Even laws concerning fundamental questions of citizens’ lives – written for experts who are charged with their technical application (e.g. social and fiscal law) • Laws – highly complex: distributive justice, which presupposes highly detailed rules

Universality and aloofnessAbstraction and Hypothetical Character • Modern law-abstract character; regulates entities that are mental creations: rights and obligations; in Swedish legislation: only 5-8% verbal substantives refer to entities that exist in time and space • Law – based on experience drawn from the real world but it regulates hypothetical future cases; timespan linked to legal rules – often characterised by universality, impossible to see from the chronological standpoint: “timelessness of law”

ImpersonalityandObjectivisation • Frequent use of passive: brings the object of the action into the foreground, giving the actor only a secondary role • Even when actors are in the foreground, individuals are pushed into the background by personification of authorities and corporations: e.g. the ministry orders (…), the court finds(…)

Impersonality and Objectivisation • Actors to do not appear under their private names but are called by their titles or functions: director, president, etc • Private persons -named according to their roles: applicant, appellant, defendant • Advocates seek to lend their arguments an appearance of objectivity to make them credible and convincing (e.g. “It appears that Article 27 of the law on judicial records should be interpreted so that (…); not: “It seems to me…)”

Neutrality • Legal language today: official and formal • Neutral style: to have an effect on the understanding, rather than the feelings, of the reader or listener • Legal style: cold: rejects all that is affective and does not include emotional elements • Legal texts: no exclamation or question marks • Neutrality of legal language – guaranteed by the fact that many legal texts (laws, administrative instructions, on the Continent also judgments) pass through the offices of several commentators and stylists before receiving their final form: they are not from a single hand

Neutrality • Legal language – characterised by “zero style”; however: advocates’ closing speeches are often affective • Sobriety of legal language – visible in legislative texts; exceptions: preambles to laws, whose style is often full of pathos and emotion

Metaphor • a figure of speech that describes a subject by asserting that it is, on some point of comparison, the same as another otherwise unrelated object. • a type of analogy and is closely related to other rhetorical figures of speech that achieve their effects via association, comparison or resemblance • All the world's a stage,And all the men and women merely players;They have their exits and their entrances;

Metaphors • In contrast to medieval times, modern legal language is neutral; no longer figurative • Only a few modest traces remain of the colourful legal language of the past, mostly in the form of legal maxims • In modern legal language, metaphors are rare • Metaphors: common in solemn speeches on the notion of law, its fundamental principles, etc. • Metaphors e.g. “landscape of legal culture”

Metaphors • “burden of proof” (Roman law: onus probandi: calques all over Europe: onere della prova, carga de la prueba, charge de la preuve, Beweistlast, bevisbörda, • Source of law

Systemic characterInterrelationship of different elements of the law • Legal order – systemic character: each element forms part of a greater whole • An article forms part of a law, and a law forms part of legislation. • In civil-law countries, precedents complement legislation; in common-law countries they are of fundamental importance; legal science – also important; result: each element should be in harmony with the entirety of the legal order

Interrelationshipofdifferentelementsofthelaw • Systemic character of the legal order - components of the order linked to one another by references: intertextuality • given that law relies on authorities (e.g. the legislator, the courts), a legal text has a dependent relationship with other texts; an article of the law refers to other articles of the same law or to other legislative texts, a judicial decision refers to laws, a legal textbook or treatise refers to laws, etc.

Functions of referencing • 1. in reinforcing the systemic idea of the legal order, references are appropriate for eliminating internal contradictions • 2. References show the wider contexts to which the different elements of the legal order belong; informative and mnemotechnical function. A reference shows that another legal text exists that links to the issue involved • 3. References eliminate repetitions, the text becomes lighter and more economical

Problems of Referencing • Too many references make a text difficult o understand, potentially causing mistakes and misunderstandings; a legal text becomes a “hypertext” weighed down with a large number of references making the reader lose the thread of the document; such a text saves space but is very difficult from the reader’s stand-point

Problems of Referencing • “A person who fails to make a declaration, or who does not make it in a correct or complete manner, or in due time, contrary to paragraph 2 of Art. 4, paragraph 1 of Art. 26, Art. 27, Paragraph 1 or 2 of Art 28, paragraph 1 or 2 of Art. 28 a, paragraph 2 of Art. 34 paragraph 1 or 2 of Art. 38 or paragraph 2,3 or 4 of Art. 42, or who fails to attach the items prescribed by law to the declaration, contrary to paragraph 2 of Art. 26, paragraph 2 of Art. 34, paragraph 2 of Art. 38 or paragraph 3 or 4 of Art. 42, contravenes the law (decree implementing law on firearms, Art 43, p. 4) German legislation on firearms

Structureandformalismin legal texts: Logicaldisposition • Logical disposition helps to place legal information in a hierarchy • Legal text moves from the abstract to the concrete, from the substantive to the procedural • Structure of the text should be consistent: the principal items presented before secondary items, general rules before special conditions and exceptions

Structure of legislative texts • Logical structure of a code informs the reader about hierarchies of legal concepts and terms expressing those concepts • Thanks to such a structure, it is easy for a lawyer or translator to find in a code the terms they are looking for and to establish the contexts in which these terms are used

Frequencyofinitialisationsandacronyms • Official title of a law, a publication, or an office can be long and complicated Ie.g. Receueil de jurisprudence du droit administratif et du Conseil d’Etat) • The use of initialisation (RJDA) facilitates references to various texts • Space-saving

Archaism and Solemnity • The legislator seeks to ensure respect for legal rules, notably by linguistic means: solemnity • The entry into force of a constitution – performed by a formula full of dignity • A close connection between the gravity of a text and its archaic character

Syntacticcomplexity • Productivity, compositionality, recursion – some oftheuniversalpropertiesoflanguage • Mechanismsofrecursion: coordinationandembedding • Compound sentence – allpartsofequalimportance

Complex sentence • Attentionshouldbepaid to relationsbetweentheclauses • In olderstatutes – longsentences, no formattingandverylittlepunctuation • Complex sentences – harder to processthancompoundsentences

Complex sentence: example (BriberyAct 2010) • 1. Offencesofbribinganotherperson • (1) A person (P) isguiltyofanoffenceifeitherofthefollowingcasesapplies. • (2) P offers, promisesorgives a financialorotheradvantage to anotherperson, and • (b) P intendstheadvantage • (i) to induce a person o performimproperly a relevantfunctionoractivits, or • (ii) to reward a person for theimproperperformanceofsuch a functionoractivity

Structure • If X then Y, or • Y istrueif X istrue • „There are ofcoursemanypossiblevariations on thisbasictheme, but innearlyallofthemthe ‘if X’ componentisanessential: everyactionorrequirement, from a legalpointofview, ishedgedaroundwith, andevendependsupon, a set ofconditionswhich must besatisfiedbeforeanything at allcanhappen (CrystalandDavy 1969: 203)

Complexity: Act of Settlement (1701) • Whereasin the First Year of the Reign of Your Majesty and of our late most gracious Sovereign Lady Queen Mary (of blessed Memory) An Act of Parliament was made intituled [An Act for declaring the Rights and Liberties of the Subject and for setling the Succession of the Crown] wherein it was (amongst other things) enacted established and declared That the Crown and Regall Government of the Kingdoms of England France and Ireland and the Dominions thereunto belonging should be and continue to Your Majestie and the said late Queen during the joynt Lives of Your Majesty and the said Queen and to the Survivor And that after the Decease of Your Majesty and of the said Queen the said Crown and Regall Government should be and remain to the Heirs of the Body of the said late Queen And for Default of such Issue to Her Royall Highness the Princess Ann of Denmark and the Heirs of Her Body And for Default of such Issue to the Heirs of the Body of Your Majesty And it was thereby further enacted That all and every Person and Persons that then were or afterwards should be reconciled to or shall hold Communion with the See or Church of Rome or should professe the Popish Religion F1... should be excluded and are by that Act made for ever [X1incapable] to inherit possess or enjoy the Crown and Government of this Realm and Ireland and the Dominions thereunto belonging or any part of the same or to have use or exercise any regall Power Authority or Jurisdiction within the same And in all and every such Case and Cases the People of these Realms shall be and are thereby absolved of their Allegiance And that the said Crown and Government shall from time to time descend to and be enjoyed by such Person or Persons being Protestants as should have inherited and enjoyed the same in case the said Person or Persons so reconciled holding Communion professing F1... as aforesaid were naturally dead

Anaphora • The use of pronouns for a recurrent noun phrase – anaphora • Legal texts – verylowlevelsofpronoun use andhencelowlevelsofanaphoraofthiskind

Nominalization • Anactioncanbeencoded as a noun • Whilelegallanguageuses a small set ofverbs, ituses a largenumberof complex nounphrases, andcanbesaid to be ‘highlynominal’ • Encodingsth as a noun, whenitcouldbeanotherkindof word – nominalization (Tiersma 1999: 77)

Nominalisation • Canbeexplainedintermsof ‘grammaticalmetaphor’ • „In English, grammaticalmetaphorpermitsthedensepackagingofinformation, particularlyinthenounphraseornominalgroup. Thisdensity plus thesemanticmismatchbetween word classandmeaningmeansthatitcanbedifficult to understand” (Gibbons 2001: 450)

Nominalisation - example • TrusteeAct 2000 • Section 3 General Power ofInvestment • (1) Subject to theprovisionsofthisPart, a trusteemay make anykindofinvestmentthat he could make if he wereabsolutelyentitled to theassetsofthe trust… • Istherenominalisationhere? • 1. Subject to theprovisionsofthisPart, a trusteemayinvestinanywaythat he couldif he wereabsolutelyentitled to theassetsofthe trust…

Searching for clarity • Trying to avoidsyntacticcomplexity, ambiguouswordsandunhelpfulnominalisations – importantinmakinglegallanguage more accessible to layreader • Acquiringlegallanguageisnotlimited to learning a set ofterms; itisalsoaboutlearning a newwayofthinking, enteringinto a differentlanguageand a differentworld (Mooney 2014: 38) • Whilethesignuniversesoflegallanguageandordinarylanguagemaybeparallel, they are notisomorphic, i.e. they do notcompletelycorrespond

Plain English • „Plain English doesnotinvolvethesimplificationof a law to thepointitbecomeslegallyuncertain. In particular, care needs to betakenthatlegaluncertaintyisnotcreatedwhendispensingwithtermshavingestablishedmeanings for usersoflegislation. Plain English mayinvolve a balanceofsimplicityandlegalcertainty to ensurethelawisbotheasilyreadandunderstoodandlegallyeffective to achievethedesiredpolicyobjectives, • (QueenslandGovernment, 2011, section 3.5.1)

Plainlanguage • Legal languagemaybethe most effectiveandcomprehensiblevarietyiftheaddresseeis a legalprofessional • Plain English ishighlydesirable for textsaddressed to a layaudience • Themvefrom ‘legal English’ to ‘Plain English’ issimilar to a translation • Becauseofthis, themove to Plain English requirestheinvolvementofwillinglegalprofessionalswho are blingual

Terminology • 1) the set ofpracticesandmethodsused for thecollection, descriptionandpresentationofterms • 2) a theoryrequired for explainingtherelationshipbetweenconceptsandterms • 3) a vocabularyofaspecialsubject-field

Terms • Termsshouldbe : • Accurate • Concise • Easy to spellandpronounce • Allowtheformationofderivatives • Linguistically correct • Monosemous (having 1 meaning) ,mononymous (consisting of one word), and a member of a term system

Legal terminology • A) “pure” lawterminology (estoppel) • B) lawterminologyfoundineverydayspeech (title ‘right’) • C) everyday words assigned a special meaning in a given legal context (e.g. Frigaliment Importing Co., Ltd. v. BNS International Sales Corp., 190 F. Supp. 116 (S.D.N.Y.1960), • D) terms from other disciplines

Everydaywordsassigned a specialmeaninginagiven legal context: example • WelfareofPigsAct 1998 – definitionof a pig for thepurposesofthatlaw: “pigmeansananimaloftheporcinespeciesofany age, kept for breeding or fattening” • If a pigfails to fulfileitherofthetwoqualifyingconditions, itsownerstaysoutsidethescopeofthatlaw

English legal terms • Multi-word expressionsandphrases • Polysemy • synonymy

Language and law 7