COMPARATIVE LEGAL LINGUISTICS

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COMPARATIVE LEGAL LINGUISTICS

• INTRODUCTION

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Lecturer

• Prof.dr.sc. Lelija Socanac
• Office hours Monday 16.30 17.30 h, Gunduliceva
  10, Room 5
• E-mail lelijasocanac_at_yahoo.com
• lelija.socanac_at_pravo.hr

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LITERATURE

• Mattila, Heikki E.S., Comparative Legal
  Linguistics .- Burlington Ashgate, 2006

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ADDITIONAL READING

• Bhatia, Vijay K. et al. (eds.), Multilingual and
  Multicultural Contexts of Legislation an
  International Perspective .- Peter Lang, 2003.
• Bhatia et al. (eds), Legal Discourse in
  Multilingual and Multicultural Contexts .- Peter
  Lang, 2003
• Bhatia, F (ed.), Vagueness in Normative Texts .-
  Peter Lang, 2005
• Eades, Diana, Sociolinguistics and the legal
  process. Multilingual matters, 2010.
• Extra, Guus Gorter, Durk, Multilingual Europe
  Facts and policies. Mouton de Gruyter, 2008.
• Gotti, Maurizio, Giannoni D. (eds.) New Trends in
  Specialized Discourse Analysis .- Peter Lang,
  2006
• Kniffka, Hannes. Working in language and law A
  German perspective. Palgrave Macmillan, 2007.
• Olsson, John, Forensic Linguistics.- London
  Continuum, 2008.
• Olsson, John, Word Crime Solving crime through
  forensic linguistics. London Continuum, 2009.
• Shuy, Roger W. Linguistics in the Courtroom a
  practical guide. Oxford University Press, 2006.
• Shuy, Roger W., Fighting over words Language and
  civil law cases. Oxford University Press, 2008.
• Shuy, Roger W. The language of defamation cases.
  Oxford University Press, 2010.
• Shuy, Roger W. The language of perjury cases .-
  Oxford University Press, 2011.
• Šarcevic, Susan, New Approache to Legal
  Translation. Kluwer Law International 2000.
• Wagner, Anne Cacciaguidi-Fahy (eds.) Legal
  Language and the Search for Clarity.- Peter Lang,
  2006

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TIMETABLE WEDNESDAY 14.30-15.00

• 12 March Introduction to Linguistics
• 19 March Introduction to Legal Linguistics
• 26 March Functions of Legal Language
• 2 April Characteristics of Legal Language
• 16 April Legal Terminology
• 23 April The Heritage of Legal Latin
• 30 April Legal German
• 7 May Legal French
• 14 May Legal English
• 21 May Changes in Legal-linguistic Dominance in
  the International Arena
• 28 May Conclusions

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Assesment

• One semester 60 points
• Attendance 30 points (10 for active
  participation)
• Seminar paper 10 points (5 for excellence)
• Presentation 10 points (5 for excellence)
• Written exam 15 points
• Oral exam 15 points

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Suggested topics

• Legal languages
• Legal terminology
• Legal translation
• Characteristics of legal discourse
• Legal linguistics and the search for clarity
• Language in the courtroom
• Forensic linguistics
• Language legislation
• Linguistic human rights
• Language policy and planning official languages,
  minority languages

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Some legal-linguistic narratives

• 1. A court has to determine the meaning of
  chicken, a word used in a contract on chicken
  delivery between two parties who disagree. The
  plaintiff pretends that it includes young birds
  only while the defendant insists upon all fowls
  being perceived in trade as chickens (Cf.
  Frigaliment Importing Co. V. B.N.S. International
  Sales Corp. 190 F. Supp. 116 (S.D.N.Y. 1960)

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Some legal-linguistic narratives

• 2. An accused in a common law country does not
  use the honorific form Your Honor when addressing
  the judge

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Some legal-linguistic narratives

• 3. A legal writer introduces a chapter on the EU
  law in his text-book for law students with The
  law relating to the European Community is now a
  wide ranging subject. European Community law
  intrudes upon, and affects, an ever increasing
  volume of domestic law and now represents and
  important source of law in the United Kingdom.

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Some legal-linguistic narratives

• A court has to decide whether protective gear can
  be perceived as accessory to roller blades under
  U.S. Customs Regulations (Cf. Rollerblade, Inc.
  v. U.S. 282 F. 3d 1349 Fed. Cir. 2002)

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Some legal-linguistic narratives

• Language use in law differs as the context of use
  is changing
• Situations of language use contexts in which
  speakers engage in legal discourses
• It is decisive to establish the appropriate
  perspective upon the language, both in the
  situation of use and in the situation of
  reflecting upon the use otherwise, language will
  not work properly
• It will lead to confusion that, expressed in
  terms of law, means injustice

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Some legal-linguistic narratives

• How does the judge determine the meaning of a
  world that belongs to ordinary language?
  (chicken) the scope of application of the term
  (accessory)
• Your Honour a pragmatic issue based on
  linguistic convention of use what are its legal
  implications? The legislation prohibits the
  parties from offending the judge, but is the
  omission of the honorific an offence?

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Preview

• Languages for specific purposes v. ordinary
  language
• Legal language v. other LSPs history, target
  audience
• Genres of legal language
• Characteristics of legal languages
• Beginnings of interest in legal language
• Rise of legal linguistics
• Relevance of legal linguistics for linguistics
  and law
• Related branches of law/linguistics
• Practical application

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Language for Specific Purposes (LSP)

• refers to two areas within applied linguistics
• One focusing on the needs in education and
  training
• One with a focus on research on language
  variation across a particular subject field

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LSP Education and Training

• LSP - approach to second or foreign language
  teaching and training that addresses specific
  needs of learners who need that language as a
  tool in their education, training or job.
• Needs analysis crucial for development of LSP
  programs
• Students - encouraged to take active roles in
  their own learning and question what they have
  been taught.
• "A negotiated syllabus means that the content of
  a particular course is a matter of discussion
  between teacher and students, according to the
  wishes and needs of the learners in conjunction
  with the expertise, judgement, and advice of the
  teacher (Hyland 2009)

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LSP Research

• LSP - also refers to a branch of applied
  linguistics which deals with a variety of
  language used by members of a particular subject
  field, concentrating on its genres, stylistic
  features and terminology
• This research is relevant for such areas as
  language education, translation and specialised
  dictionaries

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Legal Language

• A functional variant of natural language, with
  its own domain of use and particular linguistic
  norms (phraseology, vocabulary, hierarchy of
  terms and meanings)

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Legal language as language for specific purposes
(LSP)

• Legal language based on ordinary language
• Legal terms whose properties vary according to
  the branches of law
• Characteristics that distinguish legal language
  from ordinary written language (e.g. sentence
  structure)
• Specific legal style

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Legal language as a technolect

• - a language used by a specialist profesion
  (lawyers)
• In the courts and in the government
  professionals who are not lawyers (jury members,
  lay judges, administrators)
• Ordinary citizens (will)
• Target of messages transmitted in legal language
  whole population, certain layers of the
  population, or a number of particular citizens
• Law requires compliance of all people court
  judgment relates to the parties involved in the
  case
• Legal language not an instrument aimed solely
  at internal communication within the legal
  profession

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Legal language special characteristics

• Governs all areas of social life
• Through intertextuality, can be combined with
  language from any domain
• Very old, which is not the case with other LSPs
• It has shaped the ordinary language of various
  countries in a significant way

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Multilingualism and the law

• The population may use another language than that
  used in everyday communication
• Middle Ages Latin
• Today legal language of African countries
  English or French local languages spoken in
  everyday communication
• In Finland legal language until 19th c. -
  Swedish

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Genres of legal language

• Language of lawyers legal authors, legislators,
  judges, administrators, advocates
• Continental Europe notarial language
  private-law documents drawn up for hundreds of
  years by notaries

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Genres of legal language

• Language of statutes
• Language of judgments
• Language of legal doctrine
• Language used by lawyers in professional
  discussions and pleadings
• Language used by lay persons in legal contexts
• Language used in administration

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Language of legal authors

• Greater freedom than other sub-genres
• Scholarly vocabulary (e.g. Latin terms and
  sayings)

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Courtroom language

• especially formal, often archaic
• Categoric character judges use unreserved
  declarations and peremptory orders
• France courtroom language is laconic when it
  comes to reasoning of judges detailed
  argumentation, abundance of rhetoric, typifies
  the language of counsel
• Judgments in former times highly complex
  sentence construction in some countries, that
  remains the case today

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Classifications of legal terms and concepts

• Sub-genres on the basis of branches of law
• Specialist terminology of each branch
• A part of legal terminology universal, but
• Criminal law terms that are almost never used
  in the texts on the law of property or
  constitutional law
• In some branches of law legal terminology mixed
  with non-legal technical terminology, e.g.
  psychiatric terminology in criminal law,
  accountancy in tax law, etc.

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Legal Jargon

• Style of legal language a spectrum that extends
  from the solemn cast of the Constitution to
  everyday legal language
• All professions develop their own jargon, which
  strenghtens internal relationships and coherence
  of the group
• Part of legal jargon common to all sub-groups
  of lawyers
• Some expressions - only used by a single
  sub-group of lawyers, or even within a particular
  court or department (ministry, supreme court)

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Counter-language of the Criminal Fraternity

• The language of offenders a counter-language of
  legal language, notably criminal law
• The heart of this prison slang
• Functions strenghtens relationships of groups of
  prisoners in relation to prison officers and the
  jsutice system a secret code, rapidly changing
  and largely unknown to prison officers frequency
  of synonyms (in Finnish prison slang70
  expressions to describe a police officer, 30 to
  describe imprisonment)

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Beginnings of interest in legal language

• Law bound to language
• In some contexts, linguistic aspect of law
  dominates legal translation, legal lexicography,
  legal rhetoric

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Legal translation

• 1st legal translated text that has survived the
  peace treaty between the Egyptians and the
  Hittites dating from 1271 BC, followed by
  innumerable translations
• Corpus iuris civilis first translated into
  Greek, than into many other languages
• In medieval times, legal translation focused on
  Latin texts were translated from different
  vernaculars into Latin and from Latin into
  various vernaculars

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Legal research

• Ancient Greece and Rome created a conceptual
  system of law which requires clarifying
  connections between legal concepts
• Defining terms expressing concepts
• This has led to compiling legal lexicons
• 1st legal lexicon Gaius Aelius Gallus, De
  verborum quae ad jus pertinent significatione
  (on the meaning of words referring to the law),
  1st c. BC
• Tradition of legal lexicography carried on in
  Byzantium and in Western Europe

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Legal lexicography

• In Western Europe medieval legal dictionaries
  first published in Latin, later in new national
  languages
• 1st bilingual lexicons of legal language
  compiled in Byzantium (Latin-Greek lexicons)
• The lexicons became necessary when Greek was
  beginning to replace Latin in legal affairs, and
  Byzantine jurists grasp on Latin was on the wane
• Lexicons- partly encyclopaedic dictionaries,
  partly dictionaries of definitions

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Legal lexicography

• Later, an analogous need arose in Western Europe
  as to links between Latin and new national
  languages
• As West European lawyers grasp of Latin
  weakened, dictionaries of legal Latin assumed
  growing importance
• When Latin was replaced by modern languages, the
  need arose to compile legal dictionaries between
  various European national languages

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Rhetoric

• In Ancient Greece, r. was closely connected with
  activities of advocates before the courts
• 1st treatise on rhetoric written by Corax of
  Syrecuse in 5th c. B.C. its focus legal
  rhetoric
• In the Middle Ages, rhetoric was one of the three
  subjects of the teaching trivium (grammar, logic
  and rhetoric) an important place in the training
  of European lawyers

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Legal linguistics today

• Modern linguistics developed at the beginning of
  20th c.
• Enormous progress of science and technology in
  20th c. gave birth to study LSP (Fachsprachen,
  langues de spécialité both comparatively and in
  relation to ordinary language)

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Legal linguistics

• Linguistique juridique, jurilinguistique
• Rechtslinguistik (Recht und Sprache)
• Juryslingwistika (Polish)
• Pravovaia lingvistika (Russian)

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Legal linguistics

• Research synchronic (contemporary language) or
  diachronic (historical)
• Canada contrastive analysis of two legal
  languages (English and French) closely bound up
  with the science of translation this type of
  legal linguistics has spread to other countries,
  such as Poland

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Legal linguistics

• In all schools undertaking research into legal
  language, lawyers and linguists are to be found
• Researchers often dual training, or a study is
  carried out in close cooperation between lawyers
  and linguists
• Today researchers with linguistic training often
  use quantitative methods with the aid of
  computers a typical research subject
  occurrences of terms, or other linguistic
  elements (e.g. prefixes, suffixes) in legal texts

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Legal linguistics

• Research topic understandability and readability
  of legal texts from the stand-point of
  non-lawyers
• Characteristics of the language of legislative
  drafting
• Studies by lawyers often diachronic, connected
  with history of law

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Legal linguistics

• Examines the development, characteristics and
  usage of legal language
• Studies may concern vocabulary (terminology),
  syntax (sentence structure), semantics
  (meanings), pragmatics (implicatures, speech
  acts), sociolinguistics (study of language in
  social context), etc.
• A synthesis between legal science and
  linguistics, notably applied linguistics

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Legal linguistics

• Closely connected to semantics
• Lexicology a central position it is through
  terminology that legal language differs from
  ordinary language
• Legal lexicography compiling legal lexicons and
  dictionaries
• Syntax sentence length, frequency of subordinate
  clauses

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Legal linguistics

• Morphology the construction of compound words
  from the standpoint of their clarity - important
  in German, Swedish, Finnish)
• Forensic linguistics - examines production and
  perception of utterances from the legal
  standpoint, notably in courts phonetic analysis
  of human voice (threatening phone calls),
  verifying the authenticity of documents
• Research into legal style (application in
  rhetoric) how advocates convince judges of the
  worth of their messages

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Legal linguistics diachronic approach

• how vocabulary has changed over time
• the countries and epochs of origin of borrowed
  legal words
• how is legal language used in various legal
  sub-cultures (researchers, judges, advocates)
• to what extent is legal terminology known by the
  general public
• how and when lawyers began to use modern
  languages instead of Latin and what is the
  current importance of Latin in todays legal
  languages

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Legal semiotics and legal symbolism

• Spoken language is only one means of
  communication animals transmit messages without
  language
• Human beings also communicate in different ways
• Semiotics examines all kinds of communication
  together

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Legal semiotics

• Research into the symbols of power and judicial
  rituals
• Messages that are not verbal, but that express
  the authority and prestige of judicial bodies
  solemnity of court-houses, judges dress,
  positioning of judges and parties in the
  courtroom, rituals of legal procedure wordless
  messages

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Legal semiotics

• Closely related to legal linguistics the tone of
  the judge, the prosecutor, and the advocate,
  rhetorical pauses in their speech, the
  requirement that the public maintain absolute
  silence
• Written presentations the material, colour,
  decoration of documents

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Legal semiotics

• Legal circles employ non-verbal signals that
  transmit legal messages
• How effective is legal communication by
  non-verbal means?
• E.g. drawings or charts annexed to a contract or
  a law
• Body language (e.g. traffic police hand signals),
  visual signs (road signs, landmarks), sound
  signals (river traffic communications)
• Symbols expressing authority heraldry, flags,
  medals

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Legal informatics

• Examines and teaches various forms of
  relationship between the law and information and
  between law and informatics, as well as related
  problems of legal regulation and interpretation
• Legal style, structure of laws, intertextual
  references
• Systematisation of legal texts
• Structure of legal texts, use of notes and
  appendices, methods of emphasizing passages in
  the text and of showing links between different
  parts of the text (chapter and paragraph
  numbering, bold or italic script for headings and
  key words)

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Link with legal science

• Systematizes the legal order through legal
  concepts
• Primary interest concepts
• Legal linguistics terms are the primary object
  of research
• Legal science meaning of legal terms

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Links with other legal studies

• Legal theory, legal informatics, legal sociology,
  history of law fundamental importance from the
  standpoint of legal linguistics
• In the development of legal language, history of
  language and history of law are fused impossible
  to understand the circumstances in which legal
  language is used without knowing sociological
  dana
• Comparative law - helps legal linguist to
  understand the interactive links between various
  languages used for legal purposes

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Legal interpretation

• Semantic and syntactic arguments important part
• Linguistic methods, notably those of textual
  linguistics, useful to legal scholars and
  practical lawyers in the task of interpreting

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Legal linguistics

• Uses statistical methods that complete the
  picture of legal language and of law obtained
  through other sources
• Regularities in usage of legal language of
  great interest from the theory and sociology of
  law
• Foreign influences on national legal science can
  be brought into the open (citations in foreign
  languages identifying which foreign cultures
  have influenced national legal thinking, and,
  indirectly, the legal system of a country)

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Comparative law

• Research in legal linguistics often focuses on a
  single legal language some major studies examine
  the development, structure and vocabulary of two
  or more languages interaction of languages (how
  words pass from one legal language to another
• Comparative law methods for comparing legal
  cultures conclusions on the basis of
  differences and similarities found the division
  of legal systems into major families and
  sub-families of law

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Comparative law

• Sheds light on factors that influence the
  development of the systems of concepts in the
  background of legal terms better understanding
  of legal terminology
• Legal translation and lexicography presuppose
  that the correspondence of concepts belonging to
  the legal systems in question would have been
  carefully analyzed knowledge is required of the
  various institutes in these systems, notably of
  institutes of procedural law the core of
  comparative law

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Language law

• 1) Legal effects and rules on the use of language
• 2) the right of an individual or a group to be
  taught in their own language, and of the public
  use of that language

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Language law

• Some states aim to stifle use of languages other
  than the one that dominates as the language of
  instruction and public life the right of
  individuals or groups to use their own language
  matter of regulation under public international
  law
• The language regime of the EU
• Safeguarding the purity of the national language
  under pressure of another language
• The right of citizens to require courts and
  authorities to use a language that they clearly
  understand
• The right to clear, comprehensible language

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Linguistic risk

• Who bears the risk that a party to a contract may
  misunderstand the content of the contract for
  linguistic reasons?
• The rule in contract law according to which
  standard clauses vaguely formulated are
  interpreted to the disadvantage of their author
  (in dubio contra stipulatorem) in the case of
  standard contracts the specialist who drew them
  bears the risk

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Linguistic risk

• Cases with international features, esp. those
  involving immigrants problems contract is
  clear, but one party does not understand it
• Allocation of linguistic risk a topic of lively
  discussion in Germany in the case of employment
  contracts of immigrant workers

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Importance of legal-linguistic knowledge
linguistics

• Limits of variation of natural languages and
  languages for special purposes
• Principles of language change
• Ways in which the language of judges and
  officials influences the development of ordinary
  language

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Practical lawyering

• Legal language lawyers basic tool
• Studies of characteristics of legal language can
  reveal shortcomings improvements
• Complex documents poorly drafted often allow
  several interpretaions
• It is not enough for lawyers to be familiar only
  with their language knowledge of foreign
  languages for special purposes necessary for
  international cooperation

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Translation

• Europe increasingly needs translations of legal
  texts
• EU translators use automated translation tools
  and computer-aided methods of human translation
• Automated translation and use of terminological
  databanks presuppose human control
• Human control of automated translation based on
  the culture and general knowledge of the
  translator information on characteristics of
  legal language

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Lexicography and terminological work

• Legal linguists study legal vocabulary and its
  characteristics and pave the way for the
  practical work of compiling dictionaries and
  lexicons
• Standpoint of terminologists opposite to that
  of lexicographers the point of departure for
  terminological work concept, that for
  lexicographical work term
• Terminological study based on careful analysis
  of systems of concepts glossaries resulting from
  such studies- highly accurate

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Lexicography and terminological work

• Legal terms often multiple meanings (polysemy)
  terminological studies essential support for
  traditional lexicography analysing terms
  corresponding to the systems of concepts focus
  of interest basis of legal dictionaries,
  completed by studies as to meanings appearing in
  the actual use of legal terms

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Major legal languages Latin

• At the end of the Middle Ages Latin had been used
  by lawyers for over 15 centuries, in national and
  international contexts
• In medieval Europe, Latin was used as an
  administrative and judicial tool
• Academic legal science operated in Latin up to
  the 19th c.
• Latin enables us to understand the history of
  laws and legal languages going back to Antiquity

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Major legal languages Latin

• Latin the common denominator of almost all
  European legal languages and it explains a good
  deal of the features that these languages still
  have today
• Often used in the form of citations
• Familiarity with legal Latin essential for
  lawyers

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Other international legal languages

• The relative importance of languages not stable
• States active policy to gain international
  linguistic dominance, which assures considerable
  power to dominant language countries political,
  economic and cultural influence
• Strenghtening the position of English world-wide
• The position of French quite strong
  (traditional language of diplomacy)
• German the largest number of native speakers in
  Europe

68
International organizations UN

• UN 6 official languages
• English
• French
• Spanish
• Arabic
• Russian
• Chinese

69
EU

• Multilingual policy
• 24 official languages
• Working languages
• English
• French
• German

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EU

• Multilingual drafting
• Most texts drafted in English and French de
  facto, original versions, although all versions
  are formally equally authentic
• Translation in most cases, English and French
  are the source or target language for
  translations
• Council of the EU interpreting in all official
  languages
• Commission 3 working languages

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The Court of Justice of the EU

• Internal working language
• French
• Judges deliberate in French
• Advocates General - draw up their conclusions in
  their own language translated into all the
  official languages
• Direct actions procedural language chosen by
  the applicant however if the applicant chooses
  a minor language that the judges do not
  personally understand, the risk arises of legal
  messages becoming distorted through translation
  errors

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The Court of Justice of the EU

• References for preliminary rulings language of
  the referring court procedural language
• French - the most important language
• The second place
• German Germany and Austria form a very important
  macro-region German lingua franca of lawyers in
  Central Europe
• Reports of Cases published in all official
  languages the one in the procedural language -
  authentic

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Summary

• Legal language as LSP similarities and
  differences with respect to other LSPs
• Genres of legal language and their
  characteristics
• Application of linguistics to legal texts
  (phonetics, morphology, syntax, semantics,
  pragmatics, sociolinguistics, discourse analysis,
  corpus linguistics, lexicography, terminology,
  translation studies)
• Synchronic andf diachronic approaches
• Semiotics of law
• Language legislation
• Links with legal studies
• Importance of legal linguistics for lawyers and
  linguists
• Major legal languages