Functions of Legal Language

1. Functionsof Legal Language

2. Functions of language: Jakobson’s classification

3. Functions of Legal Language • 1) Producing legal effects by speech acts • 2) Transmitting legal messages • 3) Reinforcing the authority of the Law • 4) Reinforcing the team spirit of the legal profession • 5) Linguistic legislation • 6) Cultural tasks

4. 1. Speech Act Theory • Theory of speech acts : John L. Austin (1911-1960), John Searle (1932) • J. Austin, How to Do Things with Words (1962) • Non-declarative uses of language • Language is used not only to transmit messages but to produce certain effects

5. 1. Speech Act Theory • Many utterances do not communicate information, but are equivalent to actions • ‘I apologize’, ‘I promise’, ‘I do’ (at a wedding) – utterances convey a new psychological or social reality • To say = to perform • Such utteranctes – performatives; different from statements that convey information (constatives) • Performatives are not true or false

6. 1. Speech act theory • Speech is not only passively describing a given reality, but it can change the (social) reality through speech acts, • For linguistics as revolutionary a discovery as for physics was the the discovery that measurement itself can change the measured reality.

7. 1. Speech act theory • Studies the effect of utterances on the behaviour of speaker or hearer using a threefold distinction: • 1) we recognize the bare fact that a communicative act takes place: locutionary act • 2) we look at the act that is performed as a result of an utterance (e.g. promising, welcoming, warning): illocutionary act • 3) we look at the effect the speaker’s utterance has on the listener: perlocutionary act

8. 1.1.Speech Acts • Locutionary • Illocutionary • Perlocutionary

9. 1.1.1.Locutionary speech acts • The actual utterance and its ostensible meaning, corresponding to the verbal, syntactic and semantic aspects of any meaningful utterance

10. 1.1.2.Illocutionary speech act • The semantic 'illocutionary force' of the utterance, thus its real, intended meaning; • E.g. promising, ordering someone, and bequeathing • "by saying something, we do something", e.g. someone issues an order by saying "Go!“; a minister joins two people in marriage saying, "I now pronounce you husband and wife; "I bequeath this watch to my brother," as occurring in a will

11. 1.1.2.Illocutionary acts =Performatives • "I nominate John to be President", • "I sentence you to ten years' imprisonment", or • "I promise to pay you back.“ • In these performative sentences, the action that the sentence describes (nominating, sentencing, promising) is performed by the utterance of the sentence itself.

12. 1.1.2.Performatives • Though they may take the form of a typical indicative sentence, performative sentences are not used to describe and are thus not true or false; they have no truth-value. • To utter one of these sentences in appropriate circumstances is not just to "say" something, but rather to perform a certain kind of action • when something goes wrong in connection with a performative utterance it is "infelicitous", or "unhappy" rather than false

13. 1.1.2.Illocutionary speech acts (Searle 1976) • 1)Representatives = commit a speaker to the truth of a proposition, e.g. affirm, believe, conclude, deny, report • 2)Directives = thespeakertries to get the hearer to do sth, e.g. requests, commands and advice • 3)Commissives = commit a speaker to some future action, e.g. promises and oaths • 4)Expressives = express the speaker's attitudes and emotions towards the proposition, e.g. congratulations, excuses and thanks • 5)Declarations = change the reality in accordance with the proposition of the declaration, e.g. baptisms, pronouncing someone guilty or pronouncing someone husband and wife

14. 1.1.3.Perlocutionary speech acts • A speechact, as viewed at the level of its psychological consequences, such as persuading, convincing, scaring, enlightening, inspiring, or otherwise getting someone to do or realize something. • contrasted withlocutionary and illocutionary acts

15. 1.1.3.Perlocutionary speech acts • Unlike the notion oflocutionary, which describes the linguistic function of an utterance, a perlocutionary effect is in some sense external to the performance. • It may be thought ofas the effect of theillocutionary via the locutionary act. • when examining perlocutionary acts, the effect on the hearer or reader is emphasized.

16. 1.1.3.Perlocutionary speech acts • Eliciting an answer is an example of perlocutionary act, an act performed by saying something. • If one successfully performs a perlocution, one also succeeds in performing both an illocution and a locution.

17. 1.2.Felicity conditions • Speech acts – successful if they satisfy felicity conditions • For some performatives the person must have the authority to do sth: fine, baptize, arrest, declare war; for some, this is not the case: apologize, promise, thank

18. 1.2.Felicity conditions • A speech act has to be performed in the correct manner: • 1) in some cases, a procedure has to be followed exactly and completely (e.g. baptizing); • 2) in others, certain expectations have to be met (one can only welcome with a pleasant demeanour) • 3) a speech act must be performed in a sincere manner: apologize, guarantee, vow . Effective only if speakers mean what they say; believe, affirm - valid only if the speakers are not lying

19. 1.3.Speech acts and the legal order • Since law is only “alive” in language, it is possible to change legal relationships only by language • The language of the law – instrument of speech acts: it has performative function • Legal order – gives meaning of a speech act to words expressed orally or to a signed document: thus it links rights and obligations to those words or to that document

20. 1.3.Speech acts and the legal order • Ritual expressions – once of great importance in realizing speech acts: if, in Ancient Rome or in medieval England, if the claimant made even a small mistake in reciting the required form of action, he lost the case • Under Roman law: without the word spondeo (I promise) being pronounced, a contract of stipulatio character did not arise

21. 1.3.Speech acts and the legal order • By a speech act, the legislator can sanction a legal rule, a judge can take a judicial decision, or an individual can enter into a contract • A law comes to life when Parliament passes a bill and the head of State promulgates it • A valid judgment is produced by the judge declaring: “On these grounds, the Court (…) awards the mother/father custody of the minor child (…)”

22. 1.3.1.Semiotics of law • Semiotics – investigates the structure of all possible sign systems and their role in the way we create meaning in sociocultural behaviour • Patterned human communication in all its modes (sound, sight, touch, etc.) and in all contexts (dance, film, politics, clothing etc.)

23. 1.3.1.Speech Acts vs. Semiotic Acts • History: a speech act was often reinforced by a semiotic act • Roman law: mancipatio – transfer consisting of a symbolic exchange, in the presence of 5 witnesses, where the acquirer placed his hand on the person (slave), animal, or good comprising the object of the act (manus = hand, capere= take, take hold of); after pronouncing the ritual words, the acquirer placed a coin on the plate of the scales to symbolise the selling price

24. 1.3.1.Speech acts vs. Semiotic Acts • Modern examples: gavel struck by the chairman of a meeting to confirm a decision taken • Handshaking of negotiators on concluding agreement • Today: speech acts increasingly replaced by semiotic acts in matters of routine contracts (customer hands over the items in a shop, receives the bill); “silent law”

25. Communication

26. Semiotic triangle

27. Communication

28. 2. Communication theory • Basic elements of communication: • Sender: sends the message • Channel: the medium used to transmit the message • Receiver: reconstructs the message • Feedback

29. Communication noise

30. Communication noise

31. Communication noise • Environmental noise • Physiological-impairment noise • Semantic noise • Syntactic noise • Organizational noise • Cultural noise • Psychological noise

32. Environmental noise • Noise that physically disrupts communication, such as standing next to loud speakers at a party, or the noise from a construction site next to a classroom making it difficult to hear the professor.

33. Physiological-impairment noise • Physical maladies that prevent effective communication, such as actual deafness or blindness preventing messages from being received as they were intended.

34. Semantic noise • Different interpretations of the meanings of certain words. For example, the word "weed" can be interpreted as an undesirable plant in a yard, or as a euphemism for marijuana

35. Syntactical noise • Mistakes in grammar can disrupt communication; long and complicated sentences

36. Organizational noise • Poorly structured communication can prevent the receiver from accurate interpretation: e.g. unclear and badly stated directions can make the receiver even more lost

37. Cultural noise • Stereotypical assumptions can cause misunderstandings, such as unintentionally offending a non-Christian person by wishing them a "Merry Christmas".

38. Psychological noise • Certain attitudes can also make communication difficult. For instance, great anger or sadness may cause someone to lose focus on the present moment. Disorders such as autism may also severely hamper effective communication.

39. 2.1.Communication theory and law • Legal language transmits messages relative to the law • Through this language, we become familiar with the content of laws and regulations, judgments and administrative decisions, briefs and pleadings of advocates, indictments of prosecutors etc.

40. 2.1.1.Interference • Obstacles, loss, distortion, and noise • Examples: mistaken address, disappearance of the message during transmission, failure to perceive the message, absence of communicative competence on the part of the sender, delay of the message

41. 2.1.1.Interference • Information loss: diminuition or impairment of information, negative attitude on the part of the recipient • Distortion: faulty understanding or interpretation of the message, due to its ambiguity or to the fact that an intermediary has changed the content • Noise – impeding elements mixed up with the message

42. 2.1.1.Interference in legal communication • Examples: anapplicationsent to anauthoritylackingcompetence • A messagemaybedelayedtoolongintransmission, preventingdeliveryofasummons to thedefendantbeforethedeadline • Correctunderstandingof a messageoftenpresupposesthattherecipienthassufficient prior knowledgeofthematter • Problemsinrelationsbetweenlawyersandlayindividuals; incommunicationbetweenlawyersfromtwo or severalcountries

43. 2.1.1.Interference in legal communication • Incomplete, unintelligible, or equivocal nature of the message • Change of information during transmission • Signals that impede the message • The recipient’s negative attitude

44. 2.1.1.1.Incomplete Message • Examples: witness statements imperfectly recorded in case files or court minutes; acute in countries where the trial is essentially based on documents prepared during different phases of the proceedings (including pre-trial investigation and preparation of the case) • Hearing of witnesses sometimes takes place after a long time, in which case witness recall lacks clarity and completeness

45. 2.1.1.2.Hermetic message • Communication fails because the message is hermetic • A legal message – sometimes formulated in such a way that a lay individual can hardly understand it • Archaic or foreign vocabulary can impede understanding of the message • “Contagious effect” of unintelligible words: the text as a whole becomes unintelligible • From the standpoint of citizens legal terminology is abstract, and therefore obscure

46. 2.1.1.2.Hermetic Message • Paradoxically, foreignterminologycanalsoimprovetheunderstandabilityof a legal text, esp. incasesofcreationof new terminology • Themethodoftenemployed is to duplicatethe legal wordsthat are stillvague: theyarefollowedinparenthesesbycorrespondingwordsfromanother, established legal language, notably Latin • The same methodsometimesusedininternationalconventions • To ensurethattechnical legal terms are understandableincasesinvolvingtermsthatarelessestablished, or ofwhich one party at theconventionhasinsufficientcommand

47. 2.1.1.2.Hermetic Message EU: a centralized legislative system based on regulations and directives . Required to ensure smooth functioning EU legislation translated into all the official languages EU legislation reflects the traditions of larger countries; often difficult to understand for smaller countries with different traditions, in spite of the fact that it is translated into their languages

48. 2.1.1.2.Hermetic Message • Prime importance – the question of who constitutes the target of legal language • Where a legal text is intended for use only between lawyers, the requirement of understandability less emphasized than in texts intended for the general public • The borderline-not always clear; the guarantee of legal protection requires that texts intended in the first place for use by lawyers should be understandable to every citizen

49. 2.1.1.3.Ambiguous message • Natural language often allows two or more interpretations of the same text arising from multiple meanings of words (polysemy), or for syntactic reasons • Interpreting a legal text – higly complex because meaning does not depend only on linguistic arguments

50. 2.1.1.3.Ambiguous message • It is not enough to clarify the goal sought by the legislator, or to establish that goal is in harmony with the legal system overall • It has to be resolved whether the text should properly be interpreted in that way when taking into account the circumstances of the case in question