Language and law

1. Languageandlaw AnIntroduction

2. Contact details • Dr Lelija Sočanac, Associate Professor • Center for Language and Law • Faculty of Law • University of Zagreb • 10000 Zagreb • Gundulićeva 10 • E-mail: lelijasocanac@gmail.com • lelijasocanac@yahoo.com • Mobile: 00385912019313

3. Preview • Communication: Transferring legal messages • Creating meaning • Doing things with words • Language in the courtroom • Language of legal documents • Legal terminology • Legal translation • Forensic linguistics

4. Definitions: law and language • Law – a system of rules imposed by the state and enforced by courts • Language – a rule-based system of signs used for communication

5. Lawandlanguage • Law – anoverwhelminglylinguisticinstitution • Laws – codedinlanguageandlegalconcepts are accessibleonlythroughlanguage • Court casesand police interviews take place throughlanguage • Contractswhichregulaterelationshipsbetweenpartners, employersandprovidersofgoodsandservices

6. Lawandlanguage • Law – exertscontrolthroughlanguage • „Lawis a professionofwords” (Melinkoff 1987: vii) • Whileitispossible to talk aboutlawin a general andabstractway, whatthelawmeansand how itisrealisedlinguisticallydepends on context

7. Language and law • “…Legal sciencediffersfromthe natural sciences: thelawsof nature are the same everywhere. Thedifference is evidentintherelationshipbetweenlanguageanditsobject. Thelanguageof a natural sciencecannot change reality: if a plant is describedwrongly or inaccurately, it remains as it was none theless. But ifthelegislator, in a new law, describes a legal phenomenonotherwisethaninanearlierlaw, thenthelegalrealitychanges: lawonlyexistsin human language” (Brækhus 1956)

8. Communication

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

10. Code • Code: a languagevariety • For successfulcommunication, thecodehas to beshared • Thelackof a commoncode – a recurringissueintheareaoflanguageandlaw

11. Context • The common ground needed for communication over and above the code • Co-present communicationbrings its own context i.e. the surrounding space (deictics) • Context: immediate verbal context • Situational context • wider socio-cultural context

12. Activity • The author of the message was charged, tried and found guilty of sending a ‘menacing electronic communication’. Under the circumstaces, it would be reasonable to argue that the tweet was not a serious threat. Nevertheless, it was read very literally by airport personnel, police and the courts. Two years after the conviction the High Court quashed it. The case is seen as one relating to freedom of speech, but it is also about the interpretation of language • Whether or not something is menacing maybe a question of interpretation and context

13. Functions of language: Jakobson’s classification

14. Functionsoflanguage • Emotivefunction (focus on thespeaker)– thespeaker’sattitude (e.g. interjections) • Conativefunction (focus on theaddressee)– wantingtheaddressee to do sth (imperative, performatives) • Referentialfunction (focus on thetopic) • Metalinguisticfunction (focus on thecode): e.g. explaining unfamiliar terms (p. 14) • Phaticfunction (relationbetweenthespeakerandtheaddressee), e.g. small talk • Poetic function (focus on the form of a message) (p. 15)

15. Legal language: poetic? • To every thing there is a season, and a time to every purpose under the heaven: a time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted (Ecclesiastes, ch 3) a time to purchase fertilizer, and a time to take a deduction for that which is purchased. In this appeal from a Tax Court decision, we were asked to determine when the time for taking a fertilizer deduction should be. (Shenk v Commissioner of Internal Revenue 686 F. 2d 315)

16. Activity: Consider functions of language in the following examples: • A person has just been arrested in the UK. A police officer is reading her rights: • „You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence. Do you understand?”

17. Activity • In January 2010 much of the UK was affected by heavy snowfalls. Robin Hood Airport, near Doncaster and Sheffield, was closed, frustratingthe plans of many travellers. One such person, Paul Chambers, vented his impatience on Twitter. The message that he sent to his 600 followers was: • „Crap! Robin Hood Airport is closed. You’ve got a week and a bit to sort it out otherwise I am blowing the airport sky high!”

18. Activity • What is the author expressing? • Is it a real threat to blow up the airport? • Would a jury concluude that this is ‘menacing electronic communication’ and so illegal? • If there had been a recent series of bombings of airports, would the tweet be read in the same way?

19. SpeechActTheory • „I want to discuss a kind of utterance which looks like a statement…and yet is not true or false…in the first person singular present indicative active…if a person makes an utterance of this sort we would say that he is doing something rather than merely saying something…When I say I do (take this woman to be my lawful wedded wife), I am not reporting on a marriage, I am indulging in it” (Austin1979: 235)

20. SpeechActTheory • Itmakes no sense to sayspeechacts are ‘true’ or ‘false’ • J. Austindistinguishesbetweenconstatives (whichcanbetrueorfalse) andperformatives (whichcannot)

21. Identifyingspeechacts • Sometimesanexplicitperformativeisused, i.e. a verbwhichannouncestheactionthatisbeingundertaken (e.g. I warn you…) – direct speech acts • ‘The way how the utterance would be reported to someone else (She insulted me…) indirect speech acts • Hereby’ – common in performatives and indicate that a speech act is present (‘I hereby swear that the following statements are true’)

22. Doingthingswithwords: speechacts • Look at thestatementsbelow. Who wouldsaythemandinwhatcontext? Do theyhaveanyconsequences? • A. I’mtellingyou, don’t do it! • B. Stop before it’s too late. • C. I nowpronounceyoumanandwife • D. Itisthejudgmentofthiscourtthatthedefendent, John Smith, shallbeandherebyissentenced to a termofimprisonmentof 15 years. • E. Guilty.

23. Speechacts • Locutionary (=saying) • Illocutionary (saying = doing: e.g. ‘I promise’) • Perlocutionary (resultoflocutionaryandillocutionaryacts; effect on theadressee) • Perlocutionaryactentailsanillocutionaryact, andanillocutionaryactentails a locutionaryact • Noteverylocutionisanillocution

24. Speechacts: felicityconditions • A. (i) Conventions/proceduresinvolvedinillocutionaryacts (likemarriages) • (ii) Thepersonsandcircumstances must beappropriate for the procedure • B. The procedure must beexecutedbyallparticipantscorrectlyandcompletely • C. Intentionsandsubsequentconductofpersonsinvolved • If A-B are notmet, thespeechact ‘misfires’ • If C isnotmet, an ‘abuse’ ofthespeechacthastaken place

25. SpeechActs • Explicitmarkingof a speechact – noticeableintheenactingformulae at thebeginningoflegislation • UK • Be itenactedbythe Queen ‘s most ExcellentMajesty, byandwiththeadviceandconsentoftheLordsSpiritualandTemporal, andCommons, inthispresentParliamentassembled, andbytheauthorityofthe same, as follows…

26. Threatsandwarnings • Boththreatsandwarnings – related to promisesandoriented to future actions • Warnings – to theaddressee’sbenefit • Threats – thetheaddressee’sdetriment

27. SpeechActTheoryinthelegalcontext • 1)helpsunderstandwhy some speechactshavelegaleffects • 2) importantinunderstandingwhy some speechacts are illegal

28. Grice’s Co-operative PrincipleandConversationalMaxims • This model helps to understand how we use formsofwords to communicatesomethingotherthanwhatthewordsliterallymean • A differencebetweentheliteralmeaning (thewordsspoken) andthemessage (how they are understood)

29. Co-operative Principle (CP) • Make yourconversationalcontributionwhatisrequired, at thestage at whichitoccurs, bytheacceptedpurposeordirectionofthe talk exchangeinwhichyou are engaged (Grice 1989: 26)

30. Maxims • 1. Quantity: ‘Make yourcontribution as informative as isrequired’ and ‘do not make yourcontribution more informativethanisrequired’ • 2. Quality: ‘Do notsaywhatyoubelieve to befalse’ and ‘Do notsaythat for whichyoulackadequateevidence’ • 3. Manner: ‘Avoidobscurityofexpression’, ‘Avoidambiguity’, ‘Be brief’, ‘Be orderly’ • 4. Relevance: ‘Be relevant’

31. Grice’sconversationalmaximes • Griceisnottellinguswhat to do, but ratherprovidinganexplanation for how webehaveincommunicativesituations ad how weassumeotherpeoplebehave

32. Flouting a maxim • Leads to implicature • Theimplicatureisgenerated to make thecontributionmeaningful • A clashoccurswhenfulfilling one maximwouldlead to theviolationofanother

33. Exercise: suggestwhichmaximisbeingflouted (Quality, Quantity, Relevance, Manner) andwhatisbeingcommunicatedthroughthatflouting • A. How’syourworkcomingalong? • B. It sure issunnyoutside.

34. Key • B isfloutingthemaximofrelevance. Giventhat B respondswithanutterancewhichisclearlyirrelevant, A canassumethatworkis NOT comingalong

35. Whichmaximisflouted? (Quality, Quantity, Relavance, Manner) • 1. In a recommendationleter for a salesjob: • Dear Sir, I have been asked to write a few lines in suport for John Smith’s application for work in sales within your company. What perhaps is most impressive about John is that his appearance is impeccable, and his class attendance has been faultless. Sincerely, A.

36. Key • Themaximofquantity, theletterisnotveryinformative. Thisseems t ocommunicatethat A doesnothaveverymuch to saythatispositiveabout John, and to avoidviolatindthemaximofQualityandlying, and to avoidattacking John, A isnot as informative as thesituationrequires

37. Exercise: Quantity, Quality, Relation, Manner • A: How didMaryand John do on theirexam? B: Marydid fine. • B floutstheMaximofQuantity, as no informationisprovidedabout John. Thus A willassumethat John didnot do well, andthat B doesnotwant to provide displeasinginformation.

38. Exercise: Quantity, Quality, Relation, Manner • A. Are you free thisevening? B: I have had somuchworklately! I had to finish a 20-pages paper, mydoghasbeensickand I had to take him to thevet, andnowmymothersaysshe’scoming to visitthis weekend! • B floutstheMaximofQuantity/Manner – theansweris more informativethanrequired, anditisnotbrief. A willprobablygetthepicturethat B isnot free thatevening, andwillprobablynotfollowthroughwith a suggestionorinvitation

39. Violation v. flouting a maxim • „He mayquietlyandunostentatiouslyviolate a maxim; ifso, in some cases he willbeliable to mislead” (Grice 1989: 30) • 1) ifthereis no signthat a violationhastaken place, therecanbe no implicature • 2) iftheviolationisquiettherewillbe no signofitintheutteranceitself • Discovering a violationwillsuggeststhaboutthespeaker, but therecanbe no implicaturewhichindicateswhatthetruthreallyis • Theories may be generated from other information, from social implications etc. but there is nothing in the language that can be used

40. Co-Operative Principlein a legalcontext • The Co-operative Principleandpresuppositionmayworkdifferentlyin a legalcontextbecauseoftherulesandconventionsofspeakingandinterpretationwhichapplyinmanylegalsituations • Legal conversations may be designed with another audience in mind (p. 64, 66/7)

41. Which maxims were violated? • Police: You got a gun in the car? • Man: It’s my wife’s. She left it in the car. • Quantity • Police: Come on. Let’s go back over here to the car. • Man: it’s in my pocket. I’m going to take it to my wife. • Police: It’s in your pocket now? • Man: Yes Sir (...) • Man: It’s not mine sir. I’m telling you. • Police: I don’t care whose it is. It was in your pocket. Concealed. Loaded. • Man: But there was no bullet in the trigger or whatever you call it. • Police: Doesn’t matter (...) • Quantity, relevance

42. Presupposition • Presuppositions are also hidden, but ‘hidden’ in plain sight • Example: • Lawyer: Mr Smith, tell me, whendidyou stop beatingyourwife? • Theoperationofpresuppositioninthiswaycanbeveryeffective, andisoftendescribed as the ‘premise’ ofthequestion • Itisalsopossible to seethepresupposition as treatingsthwhichisnew as given • Embeddedintheutterance

43. Presuppositions • Potential to confusewitnessesandmisleadhearersbyinserting as givencontentsomethingthatisnewordisputed • Questionspresupposingthepresenceofitemsorevents (‘Didyouseethebrokenglass?” elicitdifferentresponsesfromthosethat do not make thepresupposition („Didyouseeanybrokenglass?”)

44. Language in the courtroom: witness statements • Witnessstatementsandthosetakenfromsuspects – importantpiecesofevidence • During a trial,lawyersmayaskwitnessesaboutthedetailscontainedintheirstatementseither to introducethisinformationintocourtorchallengeitsveracity • Ifwhat a witnesssays at trialdifferstoomuchfromwhatisinthestatement, thewitnessmayappear to beunreliable

45. Witnessstatements • Manyjurisdictionsstipulatethatthewitnessstatementshouldbeinhisownwords • A commonwayoftakingstatementsisthroughquestionsandanswers • Theofficerconstructingthestatementistaking on differentroles: he orients to thepersonin front ofhim, putstogether a detailedandcoherentnarrativewhichcomplieswiththerulesofthestatementgenre, andthinksahead to thelegalconstructionandunderstandingofthestatementinaninvestigationandtrial • All theseobjectives – fusedinthefinalstatement

46. Witnessstatements • Witnessstatements are highlyconstructedtexts • Thestatements are notalwaysinthewordsofthewitness • Thetexts are subsequentlytreated as reliable

47. Adversarial system (commonlaw) • Trialseen as a battlebetweenprosecutionanddefense • Evidencepresenteddirectlyduringthetrial; each side presentsitscase • Openingstatement for each side • Examination-in-chief (the side callingthewitnessconductstheexamination-in-chief, followedbycross-examination) • Cross-examinationofwitnesses • Thejudgeinstructsthejury on pointsoflaw • Jurypassestheverdict • Quantumofproofincriminalcases: beyondreasonabledoubt • Judgepassesthe sentence

48. Inquisitorial system (civil law) • Based on writtenevidencecollectedinadvance • Theinvestigating magistrate conductstheinvestigation: interviewswitnesses, takesstatements, workswiththe police

49. Thecourtroomcontext • Activity: • Drawing on anyknowledgeyoumayhave, make a note ofallthepaticipantsyoucanthinkofin a courtroom. Thinkaboutwhatthesepeople do. This should help you to come up with some initial ideas about what kinds of speaking rules apply in the courtroom

50. Conversationanalysis (CA) • CA looks at thedetailsofconversationspayingattention to whatissaid, pauses, intonation, thesmallestdetailsof talk • Theutteranceofwordsby a speaker – a ‘turn’ • Thealterationofspeakers – ‘turn-taking’ • Thequestion/answersequence – ‘anadjacencypair’