Current Legal Issues Colloquium 2011 - Law and Language
4th & 5th July 2011
Effects of ideological motivations on generic structures of the same message texts: a comparative genre analysis of a legal judgment and a newspaper report
This paper is an attempt to describe generic structures of two legal texts in the light of social ideologies that functionally motivate the producers of the texts to write them the way they are written. The selected texts are: a legal judgment produced by the former chief justice of the US Supreme Court in a famous case, and a newspaper report of the same judgment published in The Washington Post. As genre analyst, I describe and explain how both the texts are alike and how they differ in terms of generic structures and social and institutional influences. The findings are useful for stakeholders.
Silence, Speech, and the Paradox of the Right to Remain Silent in American Law
Miranda warnings have made the right to remain silent during police interrogation in the U.S. probably the widest know legal doctrine in the world. Paradoxically, however, the Supreme Court recently held that simply remaining silent in the face of police questioning is insufficient to invoke that right and instead the arrestee must speak in order to exercise that right. This paper will argue that it is the law’s lack of understanding of the socio-pragmatics of silence in communication that gives rise to this paradox.
The Consumption of Legal Language: Consuming 'The Law'
The paper will look carefully at the interplay of law and consumed media by examining legal-speech and performance in a postmodern (multi-media) world from the perspective of the consumer, building upon recent work by Rentschler and Shuy. It will seek to understand how this has, in turn, led to a shift away from understanding law as the domain of specialists towards a popular understanding that through newspapers, television and the internet we can all understand, or perceive that we do, the complexities of the common law and legal procedure. It will examine how legal language is consumed and "represented" to non-specialists by using linguistic analysis.
Vagueness and power-delegation in law: A reply to Sorensen
Roy Sorensen has argued that vagueness in the law cannot be justified
by appeal to the value of power-delegation and thereby threatens to
take away one of the main reasons for thinking that vagueness can be
valuable to law. Delegation of power to officials is justified, he
thinks, ONLY IF these officials are in a better position to discover
whether a particular x is F, a condition not satisfied in cases of
vagueness. I argue that Sorensen’s argument is unsound: delegation of
power CAN be valuable even if the delegates are not in a better
position to answer that question.
MMORPGing, Law and Lingo
The use of language in law can have a range of different implications on the outcome of legislation and case law. Additionally, for emerging issues of law, accuracy and definitions are important. Online gaming is one area of emerging law filled with challenging issues; one of which is terminology. The use of general and vague terms adds to complexities; cyberspace, virtual worlds and avatars are all seemingly specific terms, yet on closer examination are applicable to more than one entity. This paper explores those terms, and more, exemplifying the need for accuracy and specificity in the use of terms, and the legal consequences of inaccuracy in such terminology.
The gravity of steering and the grace of gliding:
always-already-not-yet-on-the-way-to-language as the uncanny origin of rhetoric, practical reasoning, action and law.
Inspired by Simone Weil’s Gravity and Grace this paper meditates on the kind of truthfulness that pertains to the very happening of critical rhetorical openings in practical reasoning (phronesis) which politically happens for the sake of action (praxis), truthfulness which, in turn, pertains to any actual and potential sense in the dynamic practice of decision, exclusion and contestation that characterises the institutional language of law. The paper calls for thinking about the very understanding that nourishes the truthfulness that conditions the possibility of the boundary between law, ethics and politics and which enables critique that makes sense in each. As such truthfulness presumes a notion of understanding I suggest that the happening of such truthfulness itself generates a contemplation of the very beginning of the happening of ‘understanding’ - beginning that constitutes condition of possibility of truthfulness itself.
In reading the late poetic Heidegger who magnified into the mystery the ‘how’ of showing-presencing and late Wittgenstein including his enigmatic early ‘Lecture on Ethics’, given that both sought unmediated grasp of the speaking of language, the paper points at uncanny complimentarity that endures a refusal between two notions of truthfulness that characterise the manner mortals are in nearing-withdrawing logos: steering/correctness (Richtigkeit – as time-existing critical naming-meaning-signification) and gliding/ call/response way-making un-concealment/dis-closure (a-letheia) or in short, poetic dwelling - a movement of temporal showing-presencing-attentive letting. The letter movement rather than being about possibility is about enduring inexpressibility. The relationship between the two persist as, to borrow J-F-Lyotard’s term, a differend. The differend sustains two interlinked happenings of truthfulness which involve very different involvements in time and historicity [to delete] and in turn, which encompass different limits and thus beginnings, of speech. Rather than shattering phronesis or evaluating it, the paper argues that ‘isness’ itself gathers the near/far movement of truthfulness which sustains the tear of the openness of this differend reconfigures the beginning of political emergence and is characterised by a refusal that nevertheless enables alterity of strangeness. In a manner tellingly pointed at by Wittgenstein non-sensicality of the ethical, but still not traversed by him, Logos remains uncanny, bearing awe and anxiety rather than persisting for-the-sake-of-possibility of steering critical thinking that grounds critical [in]correct practical and institutional possibility of language. And yet Wittgenstein’s insight haunts. But has Wittgenstein not yet been on the way to language or has Heidegger not as yet properly embattled the limits of language?
Linguistic Meaning and Legal Truth
The question of what grounds legal truth – the truth of legal propositions -- is, on one hand, fundamental and difficult, and, on the other hand, largely (and improperly) ignored. Legal truth partakes of the multiple aspects of law, including elements of both "will" and "reason."
One important sub-topic is the question of what role linguistic meaning plays in the truth of legal propositions. This paper will consider topics ranging from H.L.A. Hart’s “open texture” of law to Michael Moore’s metaphysical realism about language and law to John Searle’s “institutional facts” and Ronald Dworkin’s interpretive theory of law.
Stories in Law: Providing Space for 'Oppositionists'?
Gerwitz (1996), among others, claim that providing space for storytelling within the law will present the possibility of allowing different voices to be heard. The paper explores this claim and advises caution; the construction and interpretation of narratives, it is argued, is influenced by our position and experiences. If we accept the claims of Bennett and Feldman (1981), for instance, that bias in law can be traced to the acceptance or otherwise of alternative narratives, then we need to pause before we dash to narration. Law, in short, will only hear stories that are presented in a particular fashion.
Legal Texts and Conons of Construction: A Veiw from Current Pragmatic Theory
Those who eschew authorial intentions and advocate ‘textualism’ when interpreting statutes and other legal texts (e.g. Scalia 1997) turn to so-called ‘canons of construction’ when the text alone is equivocal or indeterminate in some way (e.g. we are licensed to interpret ‘Free entry for children under 12’ as meaning that children of 12 or over have to pay, although the text does not say this). From the vantage point of contemporary pragmatic theory, certain of the canons bear an uncanny resemblance to principles of interpretation which are claimed to govern linguistic communication quite generally and are indispensable components of human cognitive makeup. Furthermore, textualism with (the right) canons or interpretive principles turns out, I claim, to be simply a sensible version of intentionalism.
Semantics and legal interpretation: convergences and divergences
Although their objectives differ in ways to be examined, jurists and semanticians are confronted in practice with similar problems of interpretation. Their theories of meaning also have much in common. However, divergences are also observed, as is illustrated by Hart's (1961) notion of "open texture". Hart assumed the existence of a generally accepted, core meaning, and argued that judicial discretion was therefore limited to a mere "penumbra". This view of meaning corresponds closely to what is now known as prototype theory (Rosch 1983). Yet Hart refers explicitly, in his celebrated end-notes, to the work of Waismann (1951), who had attempted on the contrary to demonstrate that all meaning was necessarily indeterminate and provisional. It is argued more generally, on the basis of authentic, celebrated judgments, that the semantic theory adopted can have practical consequences in the law, to the extent that it can determine the result of the case. It is further suggested that an awareness of various theories available, including notably the theory of stereotypes (Putnam, 1975), may help to develop a more coherent approach to the interpretation of general terms.
Our Word is Our Bond: How Legal Speech Acts
This paper shows how law and language are bound up with one another and how words bind us. Understanding law as practical and social, the paper takes law to be a a series of speech acts, among which claiming and responding are key. Claims made in the name of the law - whether on behalf of or contesting official rule - raise issues of justice. Although such claims may be - and some would argue always are - spoken strategically, hypocritically, prudentially, even unfairly, they lead us to think about how justice is said - and unsaid - in speech acts made in
the name of the law. Speech - not God or a higher law - binds our law to justice..
Paul S Davies
Construing Commercial Contracts: No need for violence
Interpreting commercial contracts is increasingly difficult. The "plain" meaning of words used may be usurped by the “commercial context”, such that courts may consider "A" to mean "B". This paper criticises such developments, and argues that the language chosen by commercial parties should be afforded the utmost respect. Moreover, the language used to describe the courts’ techniques should be more precise: "construction" tends to encompass "interpretation", "implication" and "rectification", but these three concepts should remain distinct. Important recent cases such as Chartbrook Ltd v Persimmon Homes Ltd, Attorney-General of Belize v Belize Telecom and Re Sigma Finance Corporation will be considered.
Law and linguistics: two disciplines divided by a common interest in language
Analysis of language in law varies from forensic linguistic evidence submitted in specific cases through to general accounts of the constitutive role of language in shaping what law is. This paper distinguishes challenges in different fields and functions of law, and suggests that just as each raises different legal questions, so each area also raises different linguistic issues. Rather than focusing on linguistic technicalities, however, the paper draws out general implications from the contrast between legal lexicon and techniques of construction on the one hand, on which linguistic opinions have little purchase, and legal approaches to interpreting contested everyday language, to which non-legal understandings of discourse could make a contribution.
The role of language in legal contexts:
A forensic cross-linguistic viewpoint
The role of language in different legal and administrative contexts has been recognised on numerous occasions but its exact impact has not been assessed from a truly holistic and interdisciplinary perspective. I will highlight certain cross-linguistic and usage contrasts that can potentially be among the decisive factors in the witness interview process. I provide examples from extensive fieldwork in Californian courts and from mock-witness experiments in the lab and assess some possible uses, and also some limitations, of linguistic evidence in sensitive contexts of criminal justice. Finally, I discuss transcript-making practices in multilingual court cases across the world.
Simone Glanert and Pierre Legrand
Translation: If Truth Be Told ...
Law regularly calls for translation. But can a given translation disclose such normative purchase on the original text so as to warrant — and indeed require — identification as the ”true” translation of it? Drawing support both from Jacques Derrida — one of Continental philosophy’s most influential thinkers — and Willard Quine — one of analytic philosophy’s preeminent exponents —, we answer in the negative. As it builds on converging insights hailing from widely different philosophical horizons, our argument challenges the view that competence and commitment can ever ensure the exactness which lawyers assume they must encounter in the translated text.
In honour of the place and the occasion, I will address the work of Austin. Gilbert Austin, that is, the Irish divine and author of a treatise on Chironomia (1806), literally the laws of the hand, and figuratively the art of rhetorical delivery which the ancients variously termed gesture, action, and eloquence as such. Robustly critical of the 'shades of the pulpit' and the 'shadows of the Bar', of what he generally terms frigid rhetoric, Austin engages in a unique and heroically obsessive attempt to recuperate the fifth part of the art of speech, the lost discipline of external rhetoric, from the strange prejudices of his times. I will, in my turn, endeavour to recuperate Austin and to expand the possibilities of external rhetoric by addressing their roots in the muta eloquentia of the legal emblem tradition. In this genre, recently elaborated under the rubric mens emblematica, legal rhetoric explicitly aimed to make the speaker 'seen and understood' by the other, be she friend or foe, client, adversary, jury or judge. Here then, in external rhetoric, divided into the trinity of voice, countenance and gesture, the word is inexorably and incontestably conjoined to the image, sound to vision, and affect to utterance.
Testimonial Injustice: A Fundamental Vice of Legal Institutions
When someone speaks but is not heard, or heard aright, because of say accent, sex, sexual orientation or colour, that person is undermined as a knower. This paper considers Miranda Fricker’s important work on testimonial injustice, and in particular her current work which seeks to ascribe institutional virtue and vice. A central case of testimonial injustice ventured by Fricker owes to Harper Lee's To Kill a Mockingbird. Tom Robinson, a black man, is on trial for assaulting a white woman. There is ample evidence that he isn’t guilty. Nevertheless, the white jurors cannot bring themselves to believe Robinson’s denials, or his explanation for why he visited the victim in the first place, because their racial prejudices infect their perceptions of the defendant. Because the jurors take Robinson to be lying, they find him guilty, and he is sent to prison. Testimonial injustices occur, then, when speakers suffer credibility deficits due to identity prejudices on the part of their hearers. What is it to argue that testimonial injustice is a fundamental vice of legal institutions?
The role of language in the late ius commune contract theory
There is scholarly consensus that the late-sixteenth century witnessed the emergence of a distinctively modern idea of contractual liability centred on the interior will. This paper aims to show that this breakthrough was made possible by parallel developments in language. A specific notion of language developed during those decades, based on the Aristotelian dictum that "spoken words are symbols of the passions of the mind," going beyond the humanist relationship of words and things (res et verba). This understanding was the source of the powerful image of an interior will which is bound through the external declaration and implied new procedures of interpretation, which characteristically approached cases of silence as expressions of tacit consent.
The Rhetoric of the 'real' in Law: An analysis of the language of status in parenthood disputes
David Gurnham is a lecturer in Healthcare Law and Ethics at the University of Manchester (School of Law), which a research interest in law, literature and rhetoric. His recent research monograph ('Memory, Imagination, Justice: Intersections of Law and Literature', Ashgate 2009) examines various juxtapositions of legal controversy and literary sources, such as Hamlet and hot-blooded homicide; Kafka and life-sentences; child pornography and fairy-tales; biotechnology and science-fiction. His forthcoming publication is ‘Risky Sex and Manly Diversions: Consent, HIV and the Criminal Law’, chapter in C. Erin and A. Alghrani (eds.) The Criminal Law & Bioethical Conflict: Walking the Tightrope (Cambridge: Cambridge University Press, 2012). His most recently published article is ‘Legal Authority and Savagery in Judicial Rhetoric: sexual violence and the criminal courts' in International Journal of Law in Context (2011) 7(2) 117 - 137.
Language, Truth and Law
In this paper the role of language in determining the truth about law and/or the nature of true legal propositions is considered through examining the different possible relationships between the three elements of the title. One ordering of these elements would relate them so as to emphasise a technical understanding of language in deriving a true understanding of law; such as in providing a linguistic understanding of vagueness through which to understand the operation of vague terms in the law, or in embracing the insights of Gricean implicatures as a means of illuminating the meaning of legal texts. A different ordering of the elements would prioritise the significance of the legal context, from which an understanding of the particular features of law and its practice would be taken to shape the acceptable meaning that can be conveyed by language. This alternative ordering can be located in a Wittgensteinian framework but is not limited to that particular view of the relationship between language and practice. With or without a Wittgensteinian flavour, it does, however, raise doubts about the role of truth in the relationship, to the point of questioning whether truth becomes an otiose member of the triad. Should we simply focus on the relationship between language and law? In attempting to establish the importance of truth in the relationship, it is possible to distinguish between a notion of truth that is internal to law and its practice, and one that bears upon law from an external source. Either notion faces the fundamental challenge of accounting for the presence of falsehood.
These issues will be explored with a view to clarifying how the three elements mentioned can be appropriately related together, and whether their relationships can be understood exhaustively in terms of the elements themselves.
Macauley and the Construction of the East India Charter Act (1813) In 1835 Thomas Babington Macaulay prepared a now famous or infamous "minute" for the governor-general of India, William Bentinck, interpreting section 43 of the Charter Act (1813). He advised Bentinck that it would be within the meaning of the statute to cease subsidizing advanced instruction in Arabic and Sanscrit and to subsidize instead advanced instruction in English. This paper will assess the validity of Macaulay's influential interpretation, taking into account the act's legislative history, rules of statutory construction that bear on the consideration of such evidence, and Macaulay’s expressed anxiety about the power of an interpreter to rewrite the law.
'Where be his quiddities now?': Law and Language in Hamlet
Abuses of monarchy, nobility, church or wealth are certainly central to Shakespeare. However, depictions of law and its abuses do not casually blend into other critical images of power or authority in the corpus. In Hamlet, we see how it is language that Shakespeare identifies both as central to law’s specific mode of exercising power, and as a distinct means by which law’s veneer of justice conceals the manipulation of power towards oppressive ends. That theme is richly foreshadowed in the earliest plays, as exemplified by the pseudo-trial of the jurist Lord Saye during the peasant rebellion depicted in Henry VI, Part Two. Saye’s humanist, proto-liberal view of law is assailed precisely on grounds of the manipulative linguistic techniques that it conceals. In Hamlet, the medieval trappings of Shakespearean political drama have worn thinner. That same duplicitous character of legal language now re-emerges in a more overtly modern, Foucauldian surveillance state. It extends beyond the conventionally legal or political, encompassing the play’s familiar existential crises.
The Power of Naming
This chapter will look at the law on people's names. In particular, the parental choice of names for children; the resolution of disputes between over surnames for children; and the law on surnames at marriage. It will be argued that the naming has been, and still is, used as a form of control and is best understood as an exercise of power. The chapter will explore the law’s complicity in and support of men’s use of surnames to mark their quasi-ownership of children and wives.
The Role of Legislative Rhetoric in Instituting the Racial Effect of the Section 44 Terrorism Act 2000 Stop and Search Powers
The racial effect of the suspicionless stop and search powers in s.44 Terrorism Act 2000 has been widely documented, alongside its deleterious impact on community cohesion and effective policing. The cause of this disproportionality has been attributed to heightened levels of executive discretion. This paper will argue that the racial effect of the powers has deeper origins as shown by an analysis of the legislative rhetoric used when enacting the provisions and prior to their widespread activation in the aftermath 9/11. This language will be shown to have acted as a potent precursor to the race-based use of s.44.
Ordinary theatre and extraordinary law: The Khmer Rouge Tribunal
This paper examines a significant and current legal space, the Extraordinary Chambers in the Courts of Cambodia (ECCC) or Khmer Rouge Tribunal (KRT). Following Arendt (1963) and Felman (2000, 2003) on the problematics of theatre and/as law, and being concerned with the ways in which space is constituted out of multiple and minor practices, I explore the language of theatre that haunts this 'hybrid' tribunal, as well as the theatrics of the trial. Some responses to the tribunal have termed it 'mere' theatre, labeling the ECCC as a 'show trial' and claiming that justice is being either denied or degraded. This anti-theatrical charge, however, denies the various effects of re-staging this past trauma for participants and audiences both in Cambodia and overseas. I trace this tension — between the discursive and political charge of 'show trial' and the theatrics that trial law cannot help but deploy — through popular, professional and mass media responses to the tribunal. Rather than assessing the ECCC/ KRT as a success or failure in legal or geopolitical terms, I argue for an understanding of the tribunal in terms of the performativity of law, memory and geopolitics.
Catrin Fflur Huws
(Law + Language) x (Law + Language) = ?
The complexities of law and language are multiplied when there are two systems of law, two languages, and two constructions of the term ‘language.’ One aspect of devolution of legislative powers to Wales is the obligation to legislate bilingually. A second aspect is the interrelationship of statutes passed by the Parliament at Westminster, and Measures passed by the Senedd in Cardiff, in terms of their differing approaches to creating rights and imposing obligations. This paper therefore engages with the linguistic issues of legislating not only bilingually, but also bi-culturally.
First-person perspectives and first-person narratives in legal decisions
One of the striking differences between Case Law and Civil Law systems is that the former
use the first-person perspective in legal decisions (e.g. "I think"), whereas the latter avoid it. It
is the law itself that is to be expressed and not a personal standpoint. The paper will explore
these differences and ask whether they are different means to express the same content or
whether they further certain propositions. The paper tries to use insights from the linguistic
discussion of indexicals and the philosophical discussion of the irreducibility of the firstperson
perspective (Searle, Henrich).
Andrea Loux Jarman and Annabel Mooney
Community Litigation and the 'Big Society'
The ‘Big Society’ will stand or fall on the basis of whether or not communities can effectively engage with the law. The capacity of communities to do so is to a large extent socio-linguistic –the ability to speak in a ‘voice’ that can be heard, understood and acted upon by bureaucrats, legal representatives and the courts. This paper argues that participation in litigation not only enables and empowers communities -- it creates them. Legal disputes are catalysts for the emergence of innovative communities of practice. Through litigation, these communities acquire permanent ‘community capital’ facilitating their participation in, and innovation of, civil society.
June Luchjenbroers and Michelle Aldridge-Waddon
Do you kick a dog when its down? :
Considering the use of children’s video-taped testimonies
This research examines the experiences of child witnesses in cases of alleged sexual abuse within the criminal justice system. In 1992 in England and Wales the option of video-recording the police interview between the police and the child witness was introduced; and further, to present this video as his evidence-in-chief in court. We offer here, a summary of child witnesses’ experiences in the legal setting to show that while procedures may have changed, children still do not achieve justice because they remain linguistically challenged within the on-going discourse. Our examples are drawn from real police–child witness video interviews.
'Precedent' at the ECJ: The Linguistic Aspects
The development of a de facto precedent in EU law has recently been the subject of significant academic debate, centring round questions of what it means for a supreme court to ‘make law’ and when it is possible to say that its decisions are ‘precedents’ . While there is no official doctrine of precedent in EU law, the ECJ does on occasion appear to regard its previous decisions as establishing law that should be applied in later disputes and commentators generally agree that it appears that the ECJ has introduced a system of precedent and ‘tied down’ national courts without establishing a formal hierarchy in the strict sense (see, in particular, the Köbler and Larsy decisions) . However, there is one important aspect of the ECJ’s multilingual case law that has been largely ignored in such debates: the fact that that case law is drafted by jurists in a language that is generally not their mother tongue and undergoes many permutations of translation into and out of up to 23 languages. Furthermore, the authentic version of each judgment is generally a translation of the text deliberated on (in secret deliberations) by the judges. The process behind the production of the ECJ’s multilingual jurisprudence should not be ignored. Thus, the proposed paper will investigate the, thus-far wholly ignored, linguistic element in the development of a de facto precedent in the case law of the ECJ .
Fiction: law, literature and the grin's cat
Let the grin be any predicate and the cat any subject. This paper compares law and literature in respect of the subject and its reference as a contribution to the definition of fiction. When the subject in a law is "a person", it anticipates actual individuals as referents, but then it abstracts what is legally relevant from those individuals' biographies by reducing them to its predicates. Fiction, moving away from abstract types, has purposed to make characters appear like actual individuals, sometimes by imitating biographies, but the law restricts fiction as a defence if the characters refer to actual individuals.
Richard Nobles and David Schiff
Legal Pluralism: A Systems Theory Approach to Language, Translation and Communication
Most hypotheses about legal pluralism raise difficult problems not only for the conception of law in general but even for its translation from one language into another. Legal pluralism seeks to extend the study of law beyond state and inter-state legal orders to include non-state forms of law. In so doing, it raises the spectre that law ceases to be identifiable as a separate social formation. Gunther Teubner has suggested that systems theory could be used to study non-state forms of law, without dissolving the border between the legal and the social. Systems theory views law as one of modern society’s functionally differentiated sub-systems. In common with society’s other sub-systems, law generates and maintains its separate identify through the application of a unique code: legal/illegal. In this paper, we explore the nature of this code, how codes can resolve or reduce problems of translation, and how the legal code can be used to study non-state legal orders.
Necessary Violence?: Inscribing the Subject of Law
Troubling the paradoxically race and class-blind assumptions persistently grounding liberal legal educational reform, this paper takes Elizabeth Mertz's study of law school pedagogy and subject formation, The Language of Law School, as the starting point for a critical intertextual reading of three bodies of scholarship on U.S. legal subject formation not generally connected: work on the inculcation of specifically legal disciplinary literacy, especially "remedially" in the cases of law students judged academically 'at risk'; work on the intersections of race and class in affirmative action in the law school admissions context; and work on bar examination passage and failure.
Martina Rienzner, Gabriele Slezak & Karlheinz Spitzl
All Persons are Equal Before the Law; But What About Their Language? Plurilingual Speakers Within a Unilingual Judiciary - Perspectives from an Austrian Courtroom
Transcultural courtroom talk is associated with highly complex linguistic practices. Meaningful communication largely depends upon mutual recognition of the participants’ linguistic resources. This paper is based on participant observation of 54 court proceedings in Austria, in which plurilingual speakers from 7 African countries were involved. It analyses (a) the court’s attitudes towards different languages (or varieties), (b) its attribution of functions to linguistic repertoires, and (c) the information on which language choice was based (in order to arrange for an interpreter). The results showed that the dominant unilingual courtroom ideology constitutes a significant threat to the fundamental principle of equality before the law by potentially discriminating against the plurilingual speakers’ individual linguistic repertoires.
Claims of Legal Authorities and 'Expressions of Intensions': The Limits of The Philosophy of Language
Legal authorities make requests, give orders and commands and they claim that these
requests, orders and commands will be done in either a morally correct (Alexy R., The Argument
from Injustice ) or morally legitimate (Raz J., The Authority of Law) manner or both. How should
we understand these claims? Can we reconstruct such claims in light of the speech-act theory?
According to the speech-act theory (Austin J.L., How to do Things with Words; Searle, J., Speech
Acts: An Essay in the Philosophy of Language), by saying something I am performing an act. Thus,
making an assertion, giving an order and promising to do something are all ways of performing an
act. Following the core tenets of the speech-act theory, we might argue that by requesting,
commanding or ordering 'X ought to Φ' legal authorities are performing an act (performative act);
we could also argue that by claiming moral legitimacy and moral correctness legal authorities are
making claims about how these performative acts will be carried out. I will advance arguments to
criticise this reconstruction of claims of legal authorities and in doing so will show the limits of
speech-act theory for illuminating the phenomenon of intentional actions and its connection to the
authoritative nature of law. Furthermore, I will also argue that the claims of legal authorities should
be understood as 'expressions of intentions', but that such expressions should be understood beyond
a mere linguistic phenomenon. I will argue, hence, that such expressions have a deeper level and
that they are closely intertwined with 1) the intentions with which we act and 2) intentional actions
(Anscombe, G.M.E, Intention).
Law, Language(s) and Justice at the Heart of the European Project – training different kinds of lawyers to meet the challenge of successful integration.
“A precondition of the adherents of two different [legal] traditions understanding those traditions as rival and competing is of course that in some significant measure they understand each other.” (A. MacIntyre, Whose Justice, Which Rationality). The process of unifying Europe requires as a starting point such understanding of the Member States’ rival and competing legal cultures and traditions. In this process therefore, it is of the utmost importance to train our national lawyers in understanding the other Member States’ legal systems, language, practice and ultimately their conception of Justice. It is contended that this cannot be achieved without training lawyers in foreign languages. Thus, this paper examines the challenges and requirements for successful legal language training, based on the experiences by the authors of several years of law and language teaching in French and German law, through the French and German languages.
Towards a Cognitive Science of Legal Interpretation
In law, it remains common to think of 'interpretation' as a process applying only when a legal text's meaning is not 'plain'. This idea, however, is at odds with cognitive scientific theories of communication, which recognize that understanding even a simple text involves a complex process of inferring on the basis of available evidence what an author intended to communicate. From this perspective, 'author's meaning' is integral to legal interpretation; and debates surrounding this notion in legal interpretation can be understood as related to restrictions on the interpretative process imposed by the 'culture of law' (to use Paul Kahn's expression).
'On Goodness and Genre:
Talking about Virtue in Law and Literature'
According to the Victorian theory of the novel, sympathy is the process by which we 'change places in fancy' with another as we read: with practice we learn to think equitably and we extend thereby our capacity for moral virtue. Yet what is goodness and how is it learnt? Is it best fostered by doctrinal instruction, or illustrated for us by the aesthetics of example? For the likes of Charles Dickens, George Eliot and Elizabeth Gaskell, goodness possessed theological and political significance, and their novels seek to model for the reader a virtue of character that depends upon the morally educative value of affect. But critics of the Victorian sentimental tradition, and indeed contemporary philosophers, have expressed scepticism about the extent to which the promotion of friendship can in fact foster just communal relations between third parties. In Paul Ricoeur's analysis, proximity cannot bring strangers into wider social relations of fairness and equitability: participation in public life depends upon ‘the condition of plurality resulting from the extension of interhuman relations to all those that the face-to-face relation of "I" and "you" leaves out' (The Just, p. 8). Ricoeur's concerns have been widely echoed – by Jacques Derrida, Terry Eagleton and Gillian Rose, amongst others: all place great value on just laws, good institutions and 'virtuous' governance. In this paper, I want to address the gap signalled here between the ethical claims made upon us by the singular other and the universal dictates of more abstract codes of the law – a gap registered in such allegedly incommensurable categories as the particular vs. the general, and the 'hard-case' vs. precedent or statute law, and the systems of logic and experimental praxis which seek to mediate between them. I seek to trace the ways in which conversations about goodness are shaped and inflected by our choices of genre and rhetoric.
Literal Interpretation and Legal Precedent in Joe Ma’s Lawyer, Lawyer (1997)
This paper focuses on a scene of legal interpretation in a famous Hong Kong film, Lawyer, Lawyer (1997). In the film, the lawyer Chan saves an innocent man from death by relying on a strictly, almost perversely, literal interpretation of the death penalty in China’s Penal Code. This paper argues that the lawyer’s interpretive strategy in the film is premised on the most famous scene of literal interpretation in English literature, that of the trial scene in William Shakespeare’s The Merchant of Venice, in which Portia defeats Shylock’s claim to a ‘pound of flesh’ through a literal reading of the bond. Explicit, if irreverent, references to Shakespeare are made throughout the film. This paper further situates Lawyer, Lawyer in a postcolonial context to demonstrate that Chan’s use of the Shakespearean ‘case’ of Shylock as legal authority can be read as a response to the widespread debate in 1997 – the year marking the transfer of Hong Kong’s sovereignty from Britain to China – about the place of English precedent in the courts in post-handover Hong Kong.
Rule of the Root: Proto-Indo European Domination of Legal Language
Lawyers like to think that that they have a command of language, but the truth is that legal language takes command of those who use it. This essay alerts us to the on-going dominion of Proto-Indo European etymology in legal language. The fundamental elements of legal language – "law", "court", "right", "wrong", "accident", "contract" and so forth – embody metaphors which still bind us to the material and metaphysical concerns of early civilizations. The fear is that even today the imperium of ancient words and ancient worlds can too easily perpetuate what James Boyd White calls the linguistic “empire of force”.
Frame Semantics and the "Internal Point of View"
H.L.A. Hart introduced the concept of the "internal point of view" as an analytic precondition for legal rules. The internal point of view was, for Hart, a prerequisite for the intelligibility and semantics of legal statements that both naturalizes them to human behavior-that is, without any assumptions of metaphysical validity-and refutes sanction- and prediction-based accounts of law. Ronald Dworkin, in contrast, invoked the "internal point of view" to support his interpretive account of law as a practice of argumentation centering on substantive moral and political values that, nevertheless, stand outside and transcend that practice. One might marvel at the fact that the "internal point of view" supports two such diametrically opposed accounts of law. But the more fundamental flaw of both views is that each invokes an essentially literalist understanding of linguistic behavior to sustain an otherwise mistaken view of legal practices. This paper uses the frame semantics of Charles Fillmore and the more recent work of Gilles Fauconnier and Mark Turner on conceptual blending to illuminate the complexities-and sophistication-of the cognitive mechanisms that simultaneously explain and transcend the "internal point of view." The upshot is an understanding of law that goes beyond the sterile positivist/natural law debate to reveal the richly human nature of legal practice.
Andrew J Wistrich
Context Effects in Judicial Decision Making
Research concerning the psychology of decision making reveals that the form in which a question is phrased or framed often affects the answer provided. For example, eyewitnesses’ estimates of a perpetrator’s height vary depending on whether they are asked, “How tall was the perpetrator?” or “How short was the perpetrator?” Are judges equally susceptible to such manipulation, or are they uniquely able to resist it? In a series of studies using American judges as experimental subjects, we attempted to answer that question. Specifically, we investigated: (a) whether judges would be susceptible to the framing illusion, so that a decision about the fairness of an equivalent monthly lease payment would be affected by whether the payment was described as including a discount for cash or a surcharge for credit; (b) whether judges would commit the conjunction fallacy, so that a more detailed explanation would seem more probable than a less detailed but logically more probable explanation; (c) whether judges would be vulnerable to the contrast effect, so that presenting a second, and less credible, expert witness would make the first expert witness appear more credible than if only the first expert witness had been presented; and (d) whether judges would fall prey to denominator neglect, so that they would weigh the diagnosticity of forensic evidence differently depending upon whether the identical probability was expressed in frequency format (1 out of 1,000) rather than subjective format (0.1%). In general, we found that these differences in the phrasing and framing of the questions influenced the judges’ decisions. This illustrates how language can influence judicial decisions.
‘Dumb by God’ in Old Bailey records
In a study using on-line records of the Old Bailey, over 30 trials in the eighteenth and nineteenth centuries where the defendant or a key witness was deaf were examined. Although officially the term “sign language interpreter” was coined in the late twentieth century, from the 1700s family members, friends and workmates undertook this role in court. In the early nineteenth century, following the establishment of schools for the deaf, deaf people began to present their evidence in written form. In parallel with this, court proceedings changed: with no requirement that defendants be able to understand the proceedings or evidence against them, interpreters were no longer sworn in. Deaf defendants who were unable to submit written testimony may have been considered not to have full access to a language; thus, their status may have declined paradoxically as opportunities for education increased.