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LEGAL DISCOURSE Stefania D’Avanzo [email protected] it
Few professions are as concerned with language as in the law Tiersma (1993)
Law forms the framework within which we manage our daily lives, including our family lives, housing, transport, study and work. Law permeates and constructs many aspects of modern life
Legal sources of English Law • • • Common Law Equity Statute Law or legislation Custom European Law
Common Law • Origins traced back to the Norman area • Normans set about imposing a national system of law • Judges went on regular journeys trough the country to bring king’s justice to every citizen. Need of a common system of law throughout the land
Doctrine of precedent The main distinctive feature of the common law legal systems The decisions of the House of Lords are binding on all the other courts trying similar cases
Equity • It is a system of fairness which steps in to supplement the common law rules where the common law fails to provide an effective solution • Since 1873 equity and Common Law have both been admnistered together by a single civil-courts system • Equity is still relevant today, its rules can prevail over common law where there is a conflict between the rules of equity and the common-law rules.
Statute law or legislation • Consists of rules which are formally enacted by a body which has constitutional power to do so. • Parliament is now the only body with inherent power to legislate under English law, and statutes today take the form of Acts of Parliament.
Custom • It’s only subsidiary • Still active in mercantile law and as the basis of certain rights over land in the countryside.
European law 1972 -Treaty of Accession Legislation has been extended to include European Community Law. The Courts of England Wales apply European Community law in the light and reflecting the spirit of the Treaties.
Legal communication Non-verbal semiotic system linguistic dimension Both of them are used to negotiate meaning
Categorization of legal written texts ∙Operative Documents create or modify legal relations (acts, statutes, petitions, private documents – contracts, wills)
∙Expository documents explain the law (e. g. letter to a client , office memorandum) ∙ Persuasive documents submissions designed to convince a court ‘They tend not to be particularly formulaic or legalistic in language, although they do use fairly formal standard English’ (Tiersma 1999: 141)
Features of Legal discourse • Technicality (lexical dimension) Genuine technical terms: more accurate or efficient when referring to legal concepts A large amount of technical vocabulary used by lawyers
• Some specialist terms: Committal (detenzione preventiva) A counsel (consulente legale) Deforcement (espropriazione) Felon (criminale)
Some other terms have entered everyday language with a modified meaning (e. g. homicide and assault in legal language do not involve physical contact)
Archaic deicticts Old fashioned words which point to another part of the text in which they are found, or to another place or time: Forthwith (con effetto immediato) Hereafter, herein, hereof, herewith (in seguito, qui sotto, del presente, qui accluso) Aforesaid (sopra citato) Thence, thenceforth (quindi)
Technical terms derived from Latin or Norman French: Latin Affidavit Ex parte Habeas corpus French Judge Estoppel
Doublets and triplets Many of Legal terms appear in company- they are routinely used in sequences of two or three Melinkoff (1963 121 -2)
Examples of Doublets/Triplets will (OE) and testament (F) new (OE) and novel (F) fit (OE) and proper (F) give (OE) devise (F) and bequeath (OE)
Complex function expressions Legal expression at slow speed subsequent to prior to Everyday word slowly after before
Ordinary words used with a specialist meaning Ordinary word Action Article Party Stay Technical meaning lawsuit part of a document one side in a court case a delay
TEXTUAL FEATURES Legislative instruments are characterized by standardized formulas (Garzone 2002, Caliendo 2004 b).
FUNCTIONS OF DIRECTIVES PRESCRIPTIVE RULES » a final goal prescribed by the Authority to be performed by a given deadline » a normative message » requiring national implementation » allowing the Member State to choose the instrument (Adapted from Polese 2006: 95) legal
STRUCTURE OF DIRECTIVES • the title of the document, followed by the issue date in the Official Journal; • the name of the institution enacting the piece of legislation (the Commission or the Council, which can enact alone or together with the Parliament); • the “citation” formula starting with Having regard to (IT Visto), which always refers to a previous Treaty or Convention and confers sound legal basis to the document; • the section opened by Whereas (IT Considerando), also called the “recital”. This introduction provides the general motivations on which the legal act is grounded;
• a formula varying in content according to the type of document. For instance, Has decided as follows (IT Ha adottato la presente Decisione) anticipates the Articles of the Decision, while in Regulations and Directives the wording used is Has adopted this Regulation/Directive (IT Ha adottato il presente Regolamento / la presente Direttiva); • the Articles, which vary in number and represent the provisions of the legislative instrument; • the date and place of signature, sometimes followed by a number of Annexes containing tables, references or technical information. (Caliendo 2004 b: 164 -166)
Speech Acts and legal discourse ‘There’s a bull in that field’ (Austin 1963) Conceptual level: existence of a beefy animal in a certain place Speech act level: a possible warning if uttered when someone was about to open the gate of the relevant field
‘Performatives’ are a special class of speech acts They ‘do’ whatever it is that they say they do
saying ‘I name this ship the White Shoe’ really does name the ship Gibbons 2003: 60
Some performatives in legal texts: ‘I hereby promise to pay’ ‘I authorize’ ‘I hereby renounce all rights[…]’
MODALITY in Legal texts Modality is a complex concept to categorise and qualify in its different forms. Modality is mainly expressed by modal verbs and by a considerable range of grammatically and syntactically diverse items.
A three – fold categorization • Epistemic Modality • Dynamic Modality • Deontic Modality
Epistemic Modality It is concerned with the speaker/writer belief or opinion about the validity of the proposition An epistemic statement modifies the truth of a semantic proposition Lew 1997: 146
Dynamic modality Dynamic Modality is used to classify those uses of modal verbs which express ability and disposition It is applied to modal expressions of ‘ability’, ‘power’, ‘habit’, ‘prediction’ and ‘circumstance’ Palmer (1979, 1986, 1990)
Deontic Modality involves ‘the issuing of directives and it is associated with such notions as permission or obligation’ (Lew 1997: 146) The speaker gives permission, threatens or makes a promise, espresses a wish, or places someone under an obligation.
Shall in legal texts Shall is the most frequent modal in legislative texts, being used to express legal provisions. Deontic / prescriptive vs. performative values of Shall
‘The Organization and its members, in pursuit of the Purposes stated in Article 1 shall act in accordance with the following Principles’ (The UN Charter, Art. 2) ‘Everyone’s right to life shall be protected by law […]’ (ECHR, Art. 2)