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Title: COMPARATIVE LEGAL LINGUISTICS


1
COMPARATIVE LEGAL LINGUISTICS
  • INTRODUCTION

2
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

3
LITERATURE
  • Mattila, Heikki E.S., Comparative Legal
    Linguistics .- Burlington Ashgate, 2006

4
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

5
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

6
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

7
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

8
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)

9
Some legal-linguistic narratives
  • 2. An accused in a common law country does not
    use the honorific form Your Honor when addressing
    the judge

10
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.

11
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)

12
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

13
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?

14
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

15
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

16
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)

17
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

18
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)

19
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

20
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

21
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

22
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

23
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

24
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

25
Language of legal authors
  • Greater freedom than other sub-genres
  • Scholarly vocabulary (e.g. Latin terms and
    sayings)

26
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

27
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.

28
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)

29
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)

30
Beginnings of interest in legal language
  • Law bound to language
  • In some contexts, linguistic aspect of law
    dominates legal translation, legal lexicography,
    legal rhetoric

31
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

32
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

33
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

34
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

35
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

36
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)

37
Legal linguistics
  • Linguistique juridique, jurilinguistique
  • Rechtslinguistik (Recht und Sprache)
  • Juryslingwistika (Polish)
  • Pravovaia lingvistika (Russian)

38
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

39
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

40
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

41
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

42
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

43
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

44
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

45
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

46
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

47
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

48
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

49
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)

50
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

51
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

52
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

53
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)

54
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

55
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

56
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

57
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

58
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

59
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

60
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

61
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

62
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

63
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

64
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

65
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

66
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

67
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

70
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

71
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

72
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

73
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
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