Studying Legal Persuasion and Emotion in Spanish and English: An Advocate General’s Dismissal of the Rule-of-law Challenge by Hungary and Poland

Abstract

The present work examines the role of persuasive lexicon in legal discourse through the analysis of emotional devices at a lexical and rhetorical level. Our preliminary premise is that emotion is deployed by experts to convey the sentiment of shared values and epistemic trust: the need to rely on the tenets of the law as fair and conducive to the common good. The corpus of our study is constituted by the conclusions in their original Spanish, and their translation into English, by the Advocate General Manuel Campos on the challenge by Hungary and Poland of the regulation establishing a “conditionality regime” in the event of a rule-of-law breach in a EU Member State. To this end, we undertake a two-pronged analysis of legal persuasion to find out what emotional devices are deployed to convey the rule-of-law principles of justice, non-discrimination, equality and solidarity. At a first stage, we concentrate upon the polarity and intensity of emotion words and their categories. Emotional implicatures in the shape of legal technolects and metaphorical ontologies and the way they are deployed in each text constitutes the second part of our study. Among our conclusions are that both the original and target texts have a strong persuasive character, mainly grounded in the negative emotion of fear and the positive emotion of trust, and that there are variances in the emotional language deployed in either version due to the different mechanics of each law system and to functional differences between English and Spanish.

1 Introduction

On 16 December 2020, the European Parliament and the Council adopted Regulation 2020–2029 establishing a “conditionality regime” for the protection of the Union budget in the event of a breach of the principles of the rule of law in a Member State. To achieve this objective, the Regulation allows to adopt protective measures such as the suspension of payments or approval of programs from the Union budget. In response to this measure, Hungary and Poland, two countries whose rule of law has been repeatedly questioned by the European Parliament for the dismantling of their Constitutions and/or their unconstitutional behaviour,¹ brought actions before the Court of Justice seeking the annulment of such regulation, basing their claims upon the lack of a proper legal basis in the EU and FEU Treaties,² upon the circumvention of the procedure laid down in Article 7 TEU, arguing that the Union exceeded its powers and infringed the principle of legal certainty.

The corpus of this study is constituted by the conclusions in their original Spanish elaborated by the Advocate General, the Spanish Manuel Campos, on the abovementioned challenge by Hungary and Poland, and their translation into English. As it is operational in the EU Court of Justice, the AGs’ opinions are usually sought by the Court to reach their judgments. In this particular case, Mr. Campos’s conclusions gave rise to a pivotal decision by the Court on 16 February 2022, whereby the claims made by Hungary and Poland were dismissed in their entirety. The ruling held, among other things, that the sound financial management of the Union’s budget and the Union’s financial interests can be seriously jeopardised by a breach of the principles of the rule of law by a Member State. The decision also invoked the fundamental values common to the Member States in the Union, as enshrined in Article 2 TEU, which include respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights in a society characterised, inter alia, by non-discrimination, justice, solidarity and equality between women and men.

As stated above, the conclusions of the AGs on cases tried have a strong persuasive character in the context of the European Court of Justice, since they are requested almost in every case for the sake of the mechanics and functionality of the Court. If these opinions, or conclusions, are not binding, or even prescriptive, in character, they are certainly very influential [1] and normally represent the embodiment of the Court’s positioning on a due case. Article 252 TFEU states that an Advocate General must “act with complete impartiality and independence” and “make, in open court, reasoned opinions” on selected cases [1: p. 2]. Differently from the concise style of EU judges, who use standard judicial discourse (normally based upon previous decisions of the Court), the AG’s wording is personal, as it consists of their own views on the case at hand, including various perspectives or angles of vision. Therefore, notwithstanding the fact that they are pieces of judicial EU rhetoric, envisaged to elicit legal reasoning and persuade the ECJ, AGs’s conclusions do not actually constitute a genre of their own right. The reason for this is that there is no single way in which opinions are written, the authors choosing their own style [1: p. 1] The only common factor these opinions have is that (unlike judicial decisions by the Court) AGs customarily offer several interpretive stances before providing the final conclusion. Hence, we depart from the premise that the AG’s opinion under scrutiny in our work—if not a generic instance per se– constitutes a relevant piece of judicial rhetoric at work, containing enough traces of the writer’s dialogical position (i.e., the establishment of attitude and engagement between issuer and receiver) [2] to provide a veritable example of how interpersonality and, hence, persuasion, work in legal texts. The personal, not stereotypical character of AGs’s advice, as compared to the rigid style and conventionality of judicial decisions emanating from the ECJ, is remarked upon by Myslinska [3: p. 282], who stresses the proclivity to display authoritativeness, impartiality and rationality in each and every instance of the latter, in contrast with the range of styles and variety of argumentative choices used by different AGs in each case in turn.

The present study, then, specifically deals with the deployment of persuasive lexicon in legal discourse, and our corpus, based exclusively upon the AG’s conclusive words on the matter, is significantly germane as our main premise. Inasmuch as they constitute a relevant ad valuable (if not binding) piece of advice to the Court of the European Union –whose decisions are binding upon all EU Member States–, AGs’s conclusions are usually followed entirely or partly by this Court.³ The persuasive character of the Spanish Advocate, how emotions are played in his prose and how his words resonate in the English translation is the nub of our argument. In their study on the subject of persuasion in the law, [4: p. 5] Berger and Stanchi state that legal persuasion is grounded in Aristotelian rhetoric, from the moment it is based upon ethos (the writer’s moral ground, their authority and honesty, and their credibility and rapport with the audience); logos, the legal foundations deployed to prove the reasonability of their arguments, and pathos. Pathos is the deployment of emotion words and arguments directed to the addressee (in this case the Court, but, by extension, the institutions and citizens of the EU Member Countries) in the shape of shared values, beliefs and ideologies. It is an important premise of our work that at the heart of the expert jurist's reasoning under study is the pursuit of the rule of law, and how its absence influences the way in which EU funds are distributed. In addition, at the heart of the EU Court’ subsequent judgment is the question of the preservation of human rights as the most essential expression of what justice, the highest of legal emotions, should be.

Our study shall, then, concentrate upon the persuasive aspect of emotion words and of emotional implicatures in the shape of legal technolects and metaphorical ontologies, and how they are deployed in each text, source (ST) and target (TT) texts. The original conclusions are in Spanish, and this original language is respected as such by the ECJ, English being one of the official languages in which it was translated. The body in charge of translations at the European Court of Justice is the Directorate-General for Legal Translation, one of the most powerful bodies in the EU Court made up by a team of lawyer-linguists, who adjust the different texts to the specificities of the court.⁴ Apart from translations, lawyer-linguists perform other variety of tasks such as terminological research and team up with fellow lawyer-linguists in other language units to deal with questions of national law. But if the General Directorate for Translation prepares as many versions as official languages there are, Ferreri states [5], for power reasons English (being the lingua franca of EU institutions) is usually the first language into which the opinions (and any other texts within the ECJ machinery) are translated into, which explains the relevance of our study.

Still, and this is the core hypothesis here, if legal persuasion of the kind used by AG Manuel Campos in the ST deploys emotional words and implicatures, there should be variances in the emotional language in the original version of the conclusions and its translation into English. AGs’s opinions being more likely to show idiosyncratic variation than judges’, and there being personal traits peculiar to the AG whose conclusions we analyse, differences in emotion polarity and intensity might be found, rooted in the different mechanics of each law system [6, 7], which inevitably should leave its traces in the wording of the judicial text at hand, and which might also pertain to the differences in the functionality and character of English and Spanish. Piszcz and Sierocka [8: pp. 536–538] recently ponder about the impact of culture (and cyberculture) on legal translation, concluding that judicial language reflects the culture it stems from, translators having to compensate lexical voids or conundrums with knowledge about the cultural and social contexts. Along the same lines as Gozdz-Roszkowski [9: p. 582] emphasizes differences in judicial language, all of these authors equally remark upon the closer interpersonal issuer-receiver stance in common-law judicial discourse, as opposed to the impersonal, formulaic and conventional tone adopted in civil-law procedural texts. Our main research question is to what extent such more impersonal and formulaic tone pervades the Spanish Advocate’s opinion, and to what extent a more personal, intense tone is used in its English translation.

2 Aims of Our Study: Persuasion and Emotion in Law

Law is the most overtly power-bearing institution of the state, where power by coercion is legitimately and explicitly exercised. Therefore, legal systems are “systems of power” [10: p. 9] that receive “institutional mediation”, where rules constitute a kind of “open power” [11]. But such coercion is unthinkable without a process of legitimation, since in democratic societies “people are led to believe that dominance is legitimate in some way or other” [12: p. 2]. Legitimation implies that the recipients of the legal text accept that the power of the legal community over their own texts and interactions is universally beneficial and commonsense. In this view, the legal community, like other communities of practice, has to work to generate consent with its discourses: persuading and instilling the “identities, beliefs and behaviors that confirm the practices of the ruling group” [13: p. 7].Van Leeuwen [14: p. 10] describes four strategies of social legitimation: authorization (referred to personal or impersonal authority exerted by law, tradition, custom), moral evaluation (by reference to value systems, comparing, evaluating and abstracting), rationalization (the cognitive validity of institutional social action, sustained by the established values and meanings) and mythopoiesis (through narratives, such as moral or cautionary tales). All of these consist in–legal/ethical–value judgments that the addresser (in our case, the law system, in the AG’s persona) uses to attract the addressee to his side. But grounded in our work is the opinion that, rather than constituting intellectual instruments, such value judgments are ultimately the expression of emotion, and a signal of the desire to engage with the audience [15: p. 11]. In fact, our work on legal persuasion is based upon Sellers’s conviction that:

The mutual dependence between reason and emotion is the source of all law. Human beings are social creatures, many of whose emotions encourage cooperation and social solidarity. Most human wellbeing arises through the exercise and enjoyment of these prosocial emotions, including the sense of justice, which animates the concept of law [15: p. 10].

This, in our view, implies that not only reasonable (logos) and moral (ethos) arguments are essential in legal persuasion, but emotions (pathos) play a key role, since the process of legitimation which occurs in institutional contexts and social practices has much to do with sentiment.

Additionally, and as Sellers proclaims, in any discussion of law, the preeminent human emotion is the sense of justice, which is actually “a family of emotions serving the common purpose of coordinating human relations” [15: pp. 21–23]. Hence, justice is not only a product of reasoning, but appeals to our most fundamental emotions in the acceptance of law by lawtakers: trust and reliability in the laws and the system of law, which is the only way in which both are legitimated. In other words, the sense of justice, according to Sellers, is basically an emotion, and stems from our need to trust that the tenets of the law are fair and conducive to the common good, since emotional internalisation of rules is essential for their compliance [15: p. 22]. As we shall discuss below, trust, and, in this case, epistemic trust, is a meta-emotion [15], a complex process that ushers in other first-order emotions and implies sharing knowledge between issuers and receivers through a communicative process that creates a form of epistemic dependence “internalized through social practices” [16: p. 444].

Having established how emotions such as trust and justice are crucial to understanding the law’s raison d’etre, and mainly regarding legal persuasion, Berger and Stanchi [4] establish several provisos as to how it works. To explain how to influence legal decision making, they use Kahneman’s model of thinking [op. cit, 4: p. 8], constituted by two processes. First, there is a peripheral mode of thought (called System 1), which accounts for how people think fast and reach swift, intuitive conclusions, which can be affected by a range of unconscious cognitive biases and heuristics (the tendency to identify a particular case with a stereotype). One of the most common biases is rooted in the establishment of conceptualizations and meanings within the legal profession, since knowledge is socially constructed in professional communities [17: p. 2]. What the community deems as proper and fitting thrives on emotions of “sameness” and “otherness” [17]: what is “ours” is appreciated and welcomed; what is “different” tends to be rejected as threatening or invalid. Persuasion happens subconsciously, according to psychologists [18] and the shared values of the discipline in question are a fundamental tool to persuade. Hyland [19: p. 1] formulates it this way: “texts are persuasive only when they employ rhetorical conventions that colleagues find convincing”. In the precise context of law, Berger and Stanchi affirm that “law training can affect a person’s view of what is persuasive”, legal audiences being more at ease with conventional techniques of persuasion than other, less traditional, ones [4: p. 7]. All in all, System 1 is a challenge: emotional, intuitive responses account for much of our decision-making [Haidt, op. cit: 4, p. 11] and the existence of somatic markers, or gut feelings aiding rapid cognitive responses have been proved by Damasio et al. [20]. Still, persuasive choices should distinguish between valuable uses of intuition, driven from experience, from harmful stereotypical thinking: proper of hackneyed thought and heuristics.

On the other hand, System 2, the central route to cognitive processes, has to do with a slower, more reflective and accurate style of thought in Kahneman’s paradigm [op. cit, in 4: p. 108], but it does not imply that such thinking is not affected by deeply sophisticated persuasive methods. In fact, emotions, experiences and culture are an essential part of decision-making. Both Berger and Stanchi [4] and Koschut [17], among others, underscore the importance of emotion words and connotations, storytelling (or mythopoiesis), metaphor-making and ‘priming’ a piece of law reasoning to make it convincing, for the attainment of successful persuasion. All of this, we maintain, are not only cognitive processes, but have to do with emotional motivations and responses.

In line with our previous assertions of what we conceive legal persuasion to be, emotion words as persuasive devices constitute a fundamental part of the present work. Our study shall, firstly, involve lexical selection and processing looking for frequency words and the way these are categorized with Antconc [21] a corpus analysis toolkit for concordancing and text analysis. Secondly, the text shall be again processed with a sentiment analysis tool, Lingmotif 2 [22] so as to search for emotional polarity and intensity in either text, in doing so seeking for cultural or functional variations. Thirdly, we will consider emotional implicatures in the shape of ontological metaphors and legal technolects used to construct a story. Legal storytelling, as we intimated, is akin to mythopoiesis, i.e., the construction of two parallel worlds: the case itself, and its facts, and the legal constructs that surround those facts, which are constituted by the governing law–legislation and/or precedent–, presented as relevant or irrelevant regarding the factual story. Telling these narratives implies performativity and interpellation [17: p. 12]: law institutions are humanized and law arguments are reified through ontological metaphors [23] and terms of the art are deployed so as to create harmonious (and analogical) worlds of fact and law. Ontologies and technolects have very much to do with priming, since they present information to encourage the audience to connect one step or idea to another, in a syllogistic form where ideas and concepts are categorized, named, as upright or objectionable.

3 The Corpora and Some Lexical Analyses

In order to define the way in which the emotional lexicon makes its appearance in the Advocate General's opinion in the original Spanish and its English version, a double parallel corpus has been elaborated: on the one hand, the entire Conclusions in their original and their translation. Antconc 2.0. software [21] was applied to get a preliminary examination of the corpus lexicon and identify the frequencies of emotion-charged words. Lingmotif 1 [24], a sentiment analysis software (and a predecessor of Lingmotif 2, [21], which will be used below) was also used to identify the most relevant lexical data in either corpus. Tables 1 and 2 show a summary of those:

Table 1 Text analysis for ST, according to Lingmotif 1 (Moreno Ortiz, 2017)

Table 2 Text analysis for the TT, according to Lingmotif 1 (Moreno Ortiz, 2017)

We can see that the versions are slightly different in length, where the Spanish original is longer than the English one by 1475 words. Spanish texts are indeed systematically longer than their English translations, for several reasons; one of them is that many non-lexical constructions in English are translated by two- or three-word syntagms in Spanish; another is that English is a much more economical language than Spanish, as it tends towards particularization and expansion by means of complex adverbs and paraphrases [25: pp. 336–22: p. 120]. This flexibility is also shown in the higher number of multiwords in English (1399), compared to Spanish (1294). But, in addition to being longer, according to Lingmotif 1, the Spanish original is lexically richer than its English translation (13.15% vs. 10.72% TTR, i.e., token/type ratio). This indicates that the ST has a greater number of types, with fewer repetitions than the TT. It also implies that frequent words show much more repetitions in the shorter English text: probably due to anaphora and higher lexical variation in Spanish. Moreover, the English text is grammatically more structured in syntactically independent units, which makes the sentences of this version shorter than those of the Spanish original. In relation to this variable, a study by [26] shows how Spanish prose in general is more prone to subordination and that texts are usually structured in one- or two-sentence paragraphs. Finally, both sub-corpora present a higher number of lexical words than grammatical ones, the former being the first focus of interest of our study.

3.1 A Lexical Overview with Antconc 2.0

As a first stage of lexical scrutiny, and in order to find out which words were most recurrent in each text, a list of frequencies was elaborated with Antconc 2.0, a text-analysis program allowing the collection of words lists, their repetitions and keywords from textual corpora, allowing comparisons between frequencies, collocations, n-grams (i.e., more or less fixed verbal sequences) and large-scale concordances. Following the protocol usually developed by the programme, a list of stopwords in English and another in Spanish was made to filter each subcorpus, in order to eliminate elements lacking lexicality. In addition, and in order to further restrict the analysis framework, a list of lemmas in both languages was incorporated to concentrate all morphological variants of the different types. Tables 3 and 4 show the list of the 70 most frequent words:

Table 3 ST lexical analysis with Antconc 2.0

Table 4 TT lexical analysis with Antconc 2.0

A first approximation to the lexical distribution of our corpus, and the search for their denotative meaning in the Wordreference.com dictionary online (searches carried out for their Spanish and English definitions, in turn) has grouped the most frequent words into four groups:

• (a) Legal technolects, the most recurrent phenomenon in either subcorpus, with 37 types (in bold) in ST, the source text (e.g. reglamento, artículo, apartado, derecho, estado, jurídico, etc.) and 37 in the target text, TT (‘article’, ‘regulation’, ‘law’, ‘rule’, ‘legal’, ‘’principle’, ‘measure’, etc.)

• (b) Emotion word types, more positive than negative (if the latter much more frequent in tokens) in both subcorpora: 6 and 4 in the Spanish and English subcorpora, respectively, in green; 6 and 2 negative words –in red– in each. These will be discussed below.

• (c) Economy technolects, in blue, 4 in each (financiero: presupuesto, fondo, and gestión, in Spanish, ‘financial’, ‘budget’, ‘fund’ and ‘management’, in English).

• (d) Institutions, in orange, 18 in ST and 14 in TT, naming European legal bodies (consejo–‘council’–, comisión–‘commission’–: parlamento–‘parliament’) and legal norms (TUE, TFUE, and TEU, TFEU in the TT, for the Treaty and Financial Treaty of the European Union, respectively).

All of these lexical phenomena contribute to the legal narrative developed by the issuer, the AG. Particularly, legal and economic technolects constitute the so-called domain-internal knowledge of the discipline, which establishes the identities and meanings grounded in the internal functioning of the professional community, and their epistemic superiority (or epistemic asymmetry) as a community of experts [27]. They also, as we shall see, are part of the AG’s arguments, his ‘priming’ of the text, and trigger emotional implicatures ensuring epistemic trust, the belief on the part of the lay community that such identities and meanings are common-sense and necessary [28]. As corollaries of legal persuasion, emotional implicatures establishing reliability in the expertise of the issuer and his knowledge of the discipline, will be analysed as such in a later section.

In general, there are coincidences in terms of the most frequent words in each of the texts, i.e., reglamento, ‘regulation’, artículo, ‘article’, consejo, ‘council’, Unión, ‘Union’, if not always with the same number of occurrences. In fact, Antconc 2.0 allows us to see how the most frequent words show many more repetitions in the English version than their Spanish original: for example, the most frequent word in ST, reglamento (F 375), reveals more frequencies in its English translation, ‘regulation’ (F 753), and the most frequent word in the TT, ‘article’ (F 772) shows many more tokens than its original, artículo (F 362). The blatantly higher number of original types or words in ST, as opposed to the higher presence of tokens in English, is an evident illustration of the lower lexical richness of the TT. Additionally, Antconc 2.0 also allows searching for collocations and concordances, which show how, for example, the word estado in the Spanish original usually needs to be distinguished from its plural, estados, since the former mostly collocates as estado de derecho, with 161 tokens–in English ‘rule of law’ (F 169), which happens to be one of the main topics of the judicial decision–, and significantly less often as estado miembro (F 89), translated as ‘member state’ (F 73). In opposition, estados always collocates as estados miembros (F 174), ‘member states’ (F 202) in the translation.

As far as emotion words are concerned, at a preliminary stage of the analysis we find that the most striking phenomenon might be that of the word ‘breach’ (F 315), as the most frequent negative word in the target text, translated from several words in the Spanish original, such as violación (F100), vulneración (F 38) and incumplimiento (F 25), which illustrates the higher range of negative word types in the ST. Incidentally, a synonym, infracción is translated both as ‘breach’ and as ‘infringement’, the latter being outside the list of frequent words in the TT. ‘Breach’, together with ‘risk’ (F 91)–riesgo in Spanish, F 37– are the only negative lexical items in the TT, while in the ST the negative word grave (F 28) also appears within the 70 most frequent types. Its version in the TT is ‘serious’, but, with 45 tokens, it fails to appear within the group of most frequent items in English. Spanish words with a positive polarity show the same pattern: they are more varied, but less frequent than their English translation, i.e.: protección (F 72), bueno (F 48), acceso (F 36), beneficiario (F 32), seguridad (F 30), respeto (F 28), in the TT ‘protection’ (F 124), ‘sound’ (F 88), ‘access’ (F 76) and ‘respect’ (F 66). The word ‘certainty’, however, the TT version of seguridad in the ST, does not appear in the list of most frequent words in English. The same happens with ‘beneficiary’, beneficiario in the source text.

This introductory review of the corpus seems to suggest that the range of word types with negative polarity is narrower, but that it displays more tokens, or repetitions, in both versions of the conclusions. However, a more in-depth quantitative and qualitative study–which will be addressed in the following sections–is needed at this point. These will include both the results and discussion of data from the two instruments chosen: Lingmotif 2 sentiment analysis tool and the NCR Emotion Lexicon, in order to obtain a diagnosis of the emotional aspect of the texts.

3.2 A Sentiment Analysis Study of a Sample from the ST and TT

A sample summary was selected of each corpus so as to apply Lingmotif 2, an evolution of the sentiment analysis software Lingmotif 1, which carries out a more accurate diagnosis than its predecessor as to the intensity and emotional polarity in the source and target texts. The software also permits an analysis of the topicality of the samples, i.e., the most recurrent topics in the text, plus the most salient ‘entities’, or institutions. This section, however, shall only discuss polarity and intensity in the sentiment lexical items appearing in either subcorpus. Topics and entities will be discussed below, in the section devoted to implicatures and metaphors.

A problem to be solved was that Lingmotif 2 admits the processing of a maximum of approximately ten thousand words, our original ST and TT exceeding that sum by far, which is why we decided to select the most relevant part of either subcorpus. The samples selected of the ST and TT were, thus, taken deleting the first part of the judgment, which contains the historical account of the case and the legal framework surrounding it, and we solely focused on the nub of the AG’s response to the claimants. Hence, it comprises the three pleas in law (the second of which is, in its turn, divided into two parts), the arguments of the parties, and the subsequent assessment on the matter by the expert, which is carried out carefully and scrupulously analysing the contents of the points of law contested by the claimants. In other words, the samples contain the part of the opinion where the actual legal reasoning takes place, where the issuer of the text adopts an argumentative focus (as opposed to the expositive character of the sections preceding it); consequently, we deemed that the emotion-charged lexical items should be concentrated in this area, as compared to the rest of the text.

Lingmotif 2 calculates two types of scores. The first is TSS (Text Sentiment Score), or global sentiment polarity, calculated taking into account both the number and the position of the sentiment items. The second factor, TSI (Text Sentiment Intensity) is calculated according to the proportion of positive or negative sentences, versus neutral sentences. Thus, a text without many sentiment words but with them spread over the entire length of the text will have a very high TSI. Figures 1 and 2 show the visual representation of sentiment and intensity in the ST and TT summaries:

Fig. 1

TSS and TSI in the ST sample

Fig. 2

TSS and TSI in the TT sample

The most outstanding aspect to highlight between both graphs is the moderate difference between the versions, where the polarity of sentiment is not really maintained in a balanced way between the two. In fact, TSS is scored as ‘fairly negative’ in the source in Spanish, and as ‘slightly positive’ in the English translation. Positive items are, in fact, more abundant in the English translation (209 in the ST to 227 in the TT), and so are positive sentences, which explains how it is labelled as marginally more positive overall. Along the same lines, negative items are more frequent in the ST than in the TT, 252 to 207, and so are negative sentences: 94 in the ST and 69 in the TT, which is why the software detects it as being moderately negative. Intensity is high in both, if the TT where 92% of the sentences are emotionally charged, is slightly more intense, as compared to 86% in the original ST, but still both texts show a considerable emotional activity and, consequently, mirror the AG’s eloquence in evaluating the arguments. No doubt the differences in TSS and TSI, if minor, respond to a question of lexical choice in either version, which may correspond to a more blatant, sombre choice of words in the original which the translation somehow softens, a slight trend towards positivity in the TT also marking the slim difference in intensity between the two.

Table 5 shows the ten top negative and positive items in each version, as selected by Lingmotif 2:

Table 5 Main negative and positive polarity items in the two subcorpora

We can see how sentiment lexical items have been listed according to frequency by Lingmotif 2, but the word sequence is somehow different from our findings in the general corpus, since we are only illustrating emotion words at this point. As a logical consequence, words which did not appear in the original most-frequent 70 are now highlighted, inasmuch as they are emotionally charged. As we described above, the sample is where the expert’s argument and diagnosis are conveyed and should contain more emotion words than the rest of the text as a persuasive device. We can see in the table that the 20 most frequent negative words in the ST are more numerous (164) than in the TT (157), while the most frequent positive words are more numerous in the TT (156) than in the ST (140), somehow replicating the trend shown in the graphs above that there is a slight bending towards positivity in the translation. In Spanish, all the negative items following the word infracción were absent in the original Antconc frequency list, and the same happens with all the positive words following respeto. In English it is the same case, since the negative words appearing after ‘risk’ were not present, and neither were the positive ones after ‘access’. Additionally, since Lingmotif 2 permits no lemma list, we can see how relevant negative words in the ST appear under the same lemma, such as infracción and infractor (‘infraction’ and ‘offending’ in the translation, respectively), and grave, gravedad and gravemente (‘serious’, ‘seriousness’ and ‘seriously’), as well as violación and violar. (‘breach’, ‘to breach’) The same happens with positive words like protección and proteger (‘protection’, ‘to protect’) corrección (‘correction’), correctora (translated as ‘appropriate’, and collocating with ‘measures’ in the TT) and correcto (‘correct’), aprobar and aprobación (‘to adopt’, ‘adoption’) as well as respeto and respetar (‘respect’, ‘to respect’) confiere and conferir (in the TT both as ‘confer’, since no morphological verb declination is possible in English) and, finally, the adjectives buen and buena, the latter being the feminine version of the former.The word buena (normally collocating with gestión, ‘management’) is translated in the TT as ‘sound’ but when it collocates with aplicación, ‘implementation’, buen is translated as ‘proper’, and so is adecuado (‘adequate’) which collocates with funcionamiento (‘functioning’). Lexical variability, as we saw initially, is not as strong in the TT, but still the negative words ‘serious’ and ‘seriously’, ‘suspend’ and ‘suspension’, ‘impose’ and ‘imposition’ outdo the relevance they had in the TT. All of them, including the positive ones, ‘protection’ and ‘protect’, as well as ‘correction’ and ‘correct’ also stem from the same lemma. Again, ‘breach’ is an outstanding negative word, translated, as we saw, from words like violación, vulneración or incumplimiento in the ST, which we interpreted as a sign of the lexical richness of the ST and its proclivity to a marginally higher negative lexical choice.

3.3 Emotion Categories: An Analysis of the Samples with EmoLex

As we intimated above, the slight difference in emotion between the ST and the TT detected by the software could, at this point, be accounted for by the fact that the AG might be making emphasis upon negative conduct as, illustrated by the repetitive use of negative, deprecating, words such as violación, incumplimiento, infracción, vulneración, which somehow, become hedged in the translation when solely the translation as ‘breach’ is used.

To try and find more about the nature of negative and positive concepts we decided to carry out a further investigation into the list of emotion words detected by Lingmotif 2. To get to know more about the nature of emotion in each sample we subsequently classified them into different categories under the NRC Emotion Lexicon, or EmoLex taxonomy [29] and [30] in order to find deeper semantic hues, other than their mere polarity. EmoLex is a list of more than 14,000 English unigrams, the equivalents into Spanish (among other languages) being also offered by the lexicon. These unigrams are associated with eight primary emotions, i.e., anger, fear, anticipation, trust, surprise, sadness, joy, and disgust, which correspond to Plutchik’s taxonomy in its 2001 version, referenced below. The NRC sentiment lexicon categorizes words binarily into positive and/or negative and into emotions that are not mutually exclusive.

Plutchik’s model of eight primary emotions [31,32,33] is a progression from Darwin’s theory of evolution and adaptation, whereby there are existential life problems (‘identity’, ‘temporality’, ‘territoriality’ and ‘hierarchy’) associated to positive and negative responses in the form of primary emotions: trust/disgust, joy/sadness, anger/fear and anticipation/surprise, as shown in Fig. 3 below, which we base upon TenHouten’s own interpretation [33: p. 17]:

Fig. 3

Plutchik’s four existential problems and 8 primary emotions (adapted from TenHouten, 2014: 17)

‘Anger’ and ‘fear’ function as opposite pairs, where the former activates a response towards the attainment of objectives through facing obstacles, while fear is activated when a hindrance is felt as unsurmountable; ‘joy’ and ‘sadness’ are also opposites, inasmuch as both are reactions of gaining or losing social support: possessing or abandoning; the pair ‘trust’ and ‘disgust’ are opposite polarizations having to do with the ‘sameness’ and ‘otherness’ sentiments we discussed above: relying upon those who belong to one’s group, rejection of those who do not; finally, ‘anticipation’ and ‘surprise’ (which will not crop up in our findings) represent reactions of territoriality that manifest into opening boundaries or closing them.

Figures 4, 5, 6 and 7 reveal our categorization through EmoLex, first in the ST, then in the TT, in their negative and positive versions. We are analyzing negative items first.

Fig. 4

Negative emotions in ST, according to EmoLex

Fig. 5

Negative emotions in the TT, according to EmoLex

Fig. 6

Positive emotions in the ST, according to EmoLex

Fig. 7

Positive emotions in the TT, according to EmoLex

In Fig. 4, corresponding to negative words in the ST, we can see how 7 lexical items of the negative 20 are ‘anger’ words, most of them having to do with breaching the legal order, such as violación, vulneración, incumplimiento (all of them breach, as we saw above), violar (‘to breach’), afectar (‘affect’), conflict (‘conflict’), and rebatir (‘challenge’, in the sense it should have in the original, which is reformulated and hedged in the TT as “to demonstrate that something is incorrect”). In Fig. 5, on the TT, anger words are also noticeable, ‘breach’ again being the most salient, followed by ‘infringement’, as well as–comparatively less frequent–anger words such as ‘failure’, ‘conflict’, ‘inappropriate’, ‘penalty’, ‘dispute’ and ‘argue’. According to TenHouten’s [33] interpretation of Plutchik’s emotions, anger is a sociomoral emotion, a reaction or response against one who is blameworthy of an undue crossing of boundaries; it is directed against those who violate an established norm or fail to fulfil their social duties. Therefore, and also according to TenHouten [34: p.: 139], by representing the reaction to one person’s unjust obstruction to the goals, resources, authority or status of another, anger is directed at punishing or correcting such an obstruction. This interpretation of what anger is, in our opinion, perfectly reflects the AG’s case, his arguments being aimed at entirely dismissing what he considers to be unfair claims on the part of Hungary and Poland. ‘Fear’ words are also present in both samples. Figure 4 shows 4 words related to fear, such as grave/gravemente/gravedad and riesgo, fairly mirrored in Fig. 5, with words such as ‘seriously’ and ‘risk’. Fear, in Plutchik’s taxonomy, is the exact opposite of anger: instead of moving towards an obstacle to remove it, fear represents negative feelings of submission, hesitation; an adaptative reaction that implies escape from what is adverse. According to TenHouten [34: pp. 150–152], it is closely connected to the notion of ‘risk’, since it constitutes “the rapid, instinctive sensation, and a recoiling and reaction to, dangerous and undesirable situations” [34: p. 152]. If in the AG’s conclusions anger was useful to goal attainment, i.e., a severe reprimand to those violating the norm, fear constitutes a warning for the successful avoidance of something potentially harmful, namely the commission of a normative irregularity in this case, a breach of the rule of law. Next, there are also some negatively-polarized words with no primary emotion, less so in the ST: infracción (infringement’), infractor (‘offending’, in the TT) and imponer (‘impose’), in the TT appearing as ‘impose’, together with the noun, ‘imposition’. Other words with no primary emotion in EmoLex are ‘suspend’ and ‘suspension’, ‘irregularity’ and ‘lack’. Emotions like ‘disgust’ (illustrated by the word incidencia, ‘impact’ in the translation) and ‘sadness’ (illustrated with detención, ‘arrest’ in the translation) are also present in the ST, but show no occurrence in the TT, at least not in the 20 most frequent emotion-words gathered by Lingmotif 2 and now under scrutiny with EmoLex.

Figures 6 and 7 show the predominant nature of positive emotions in the ST and TT:

As we can see, the main emotion pervading is ‘trust’. The 12 words that evoke trust in the ST are protección/proteger (‘protection’/’to protect’), buena/buen (as we saw above, with several versions in the TT, mainly ‘sound’ and ‘proper’, which do not appear among the 20 most frequent emotion words in the TT), correcto (‘correct’), respeto/respetar (‘respect’/’to respect’), fundamental (‘fundamental’, in the TT, not among the TT’s 20 most frequent words), ayudar (‘help’), aprobación (‘adoption’, again with no occurrence in the TT), salvaguardar (‘safeguard’) and cumplimiento (‘compliance’), while the TT shows a very similar range of words, eleven in number: ‘protection/protect’, ‘respect’, ‘effective’, ‘compliance’, ‘correct’, ‘help’, ‘approve’, ‘safeguard’ and ‘verify’. As we discussed in our theoretical framework, trust, with justice, is a central kind of emotion in legal persuasion. If lack of justice triggers anger, and punishment, trust is a complex kind of emotion, a meta-emotion, since it interferes with phenomena such as moral actions, economy and argumentations, and sparks a wide range of emotions [16]; in the case of legal persuasion of the kind studied here, trust is “a relation of epistemic dependence between agents and society through a communicative process. Every communicative process represents a narrative, a testimony” [16: p. 442]. As we shall see in our next section, in the AG’s conclusions under study, the nub of the narrative is the common values identified by, and shared between, the Member States which justifies mutual trust, and trust in the legal order, the rule of law. Protection is, then, invoked as a ‘sameness’ word: the EU’s mission–and specifically the Treaties and the Regulation being challenged by Hungary and Poland–is to defend the legal order, through the respect of the correct implementation of the budget. Trust is, then, the main emotion in both texts. The rest of the items show a range of states: no polarity, in words common to both texts, such as consagrado (enshrined), conferir (‘confer’) and equilibrio (‘balance’), with the opposite polarity (corrección and correctora, ‘correction’ and ‘remedial’, respectively, which are deemed as negative by EmoLex) and some negative items with no definite emotion, such as adecuada (‘proper’ and ‘appropriate’), plus ‘qualify’ and ‘sufficient’, which are not highlighted by Lingmotif 2 in the TO.

4 Emotional Implicatures and Legal Ontologies

In the first part of our lexical examination, apart from emotionally charged words, we spotted several salient lexical areas, mainly institutions and legal and economic technolects. Both, legal entities and legal and economic terms of art, are essential for the priming of the text; they set the mise en scène to bridge the gap between epistemic asymmetry and epistemic trust in the specialised community by the lay members of society i.e., the lawtakers). Ultimately, they are meant to elicit collective emotional responses to judicial decisions which have a moral origin, a sense of what society thinks it is right [4: p. 3] Priming, telling a legal narrative, is, as we discussed above, one of the basic foundations for persuasion in the law.

As we stated at the beginning of our lexical analysis, one of the most interesting tools of Lingmotif 2 is its capacity to spot the array of entities and topics that emotion-charged items revolve around. Tables 6 and 7 exhibit, respectively, the main five institutions and the main ten topics in the samples, ST and TT.

Table 6 Five main institutions in the ST and the TT, by Lingmotif 2

Table 7 Ten core topics in the ST and the TT, by Lingmotif 2

In Table 6, firstly, Lingmotif 2 offers the possibility to single out the institutions that constitute the most salient entities in the text, actors in the storytelling that takes place in the AG’s opinions.

The personification of all of the above, Estado miembro (‘Member State’), Tribunal de Justicia (‘Court of Justice’), Consejo Europeo (‘European Council’), Reglamento financiero (‘Financial Regulation’) and Parlamento Europeo (‘European Parliament’) turn those institutional bodies into the characters within the symbolic world that the AG uses to construct the story thus contribute to hegemonizing and maintaining a sense of the reality of the authoritativeness of the law to its subjects. Since knowledge is socially constructed in professional communities, the establishment of conceptualizations and meanings within the legal profession allows for the existence of the so-called ‘discourse metaphors [35, 36]: hackneyed metaphorical projections peculiar, in this case, to legal discourse surround the that dramatis personae in the AG’s narrative. Legal entities, when personified, constitute ontological, or propositional metaphors [37: p. 3], or ‘metaphors of law’ [38: p. 402]. Personification is present in these examples, where the ‘animate’ verb is underlined and institutions highlighted in bold:

• (1) La propuesta corresponde a un tercio de los Estados miembros, al Parlamento Europeo o a la Comisión. [A proposal may be made by one third of the Member States, by the European Parliament or by the Commission].

• (2) El Reglamento Financiero, cuyo artículo 131, apartado 3, autoriza la suspensión del pago de fondos cuando se demuestre, o sea necesario comprobar, que ha habido irregularidades, fraude o incumplimiento […] [The Financial Regulation, Article 131(3) of which authorises the suspension of payment of funds where the implementation of the legal commitment proves to have been subject to irregularities, fraud or breach of obligations […].

Similarly, technolects such as estado de derecho (‘rule of law’) or principio de condicionalidad (‘conditionality principle’) constitute the nub of the legal reasoning in the legal opinion under scrutiny (and its subsequent translation into English), with an important persuasive character in the text. So does the invocation of Reglamento or Regulation 2020/2092 and the different artículos, ‘articles’ of primary law to protect the presupuesto de la Unión or ‘Union budget’ challenged by the contesting States. Table 7 shows them, in order of frequency:

The most recurrent subject matter, as we can see, is the Estado de derecho, or ‘rule of law’ in both samples. Searching for concordances with Antconc 2.0, we confirmed that this noun phrase is found both in positive and negative contexts:

• (3) Esta disposición no se atiene a las normas de ejecución del presupuesto de la Unión y representa una sanción para el Estado miembro que viole las exigencias del Estado de derecho

  [This provision is not consistent with the rules for implementing the Union budget and represents a penalty for a Member State that breaches the requirements of the rule of law].

• (4) El cumplimiento de los principios del Estado de derecho puede revestir una importancia fundamental para el buen funcionamiento de las finanzas públicas y para la correcta ejecución de los presupuestos.

  [Compliance with the principles of the rule of law may be vitally important for the sound operation of public finances and proper budgetary implementation].

Still, the AG’s main argument is that the adoption of the protective measures provided for by EU law, and, more specifically, of the regulation which those countries seek to challenge, establishes a genuine link between a breach of a principle of the rule of law and a serious breach, or threat of serious breach, of the sound financial management of the European Union or of its financial interests. This is why ‘breach/to breach’ and ‘protection/to protect’ are negative and positive lexical items that link ‘rule of law’ with other central topics, such as ‘conditionality mechanism’, ‘budgetary implementation’ and ‘(sound) financial management of the Union budget’, as in:

• (5) En suma, la creación de un mecanismo de condicionalidad financiera vinculado con el Estado de derecho me parece una opción legislativa plausible y con encaje en el derecho originario. [To sum up, the creation of a financial conditionality mechanism linked to the rule of law seems to me to be a feasible legislative option that is covered by primary law].

• (6) La condicionalidad financiera se limita a aquellas violaciones del Estado de derecho que tengan una relación suficientemente directa con la ejecución presupuestaria y que afecten o amenacen con afectar gravemente la buena gestión financiera del presupuesto de la Unión o la protección de los intereses financieros de esta. [Financial conditionality is restricted to those breaches of the rule of law which have a sufficiently direct link to budgetary implementation and which affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union].

Other, more negative, topical items are the ‘Hungarian Government’, the main actor to uphold the pleas in law –mainly dealing with the absence of legal certainty in the measures adopted by Council and Commission–, one after one of which are drily and laconically rejected by the AG, as in:

• (7) En cuanto a la (hipotética) inexistencia de un vínculo directo entre la violación y las medidas correctoras […] de nuevo la alegación del Gobierno húngaro me resulta poco convincente. With regard to the (hypothetical) absence of a direct link between the breach and the remedial measures, […] once again, I am not persuaded by the Hungarian Government’s argument.

• (8) En segundo lugar, el Gobierno húngaro reitera que […] es incompatible con el principio de seguridad jurídica. Ya he explicado por qué no comparto este argumento. Second, the Hungarian Government reiterates that the reference […] is incompatible with the principle of legal certainty. I have already explained why I do not share this view.

All in all, the AG’s mode of legal persuasion is that of a cautionary tale, a mythopoiesis, directed to those who dare breach the principles of an established and powerful body such as the EU. With a constant allusion to ‘sameness’ and to a world of shared ideals of justice, the AG elaborates how the EU principles derive from common values which are also recognized and applied by the Member States in their own legal systems, deriving from a shared concept of the rule of law which the Member States respect and to which they adhere, as a value common to their constitutional traditions.

5 Conclusions

This work has consisted in a lexical and rhetorical study of how persuasion is essential in the field of law, and how emotion plays an essential part in the transmission of such persuasion. To this end, we selected as our corpus of study the conclusions elaborated by the Advocate General, Manuel Campos in their original Spanish, and their subsequent translation into English. These were deployed by the European Court of Justice to deal with the challenge by Hungary and Poland of the regulations establishing a general conditionality regime for the protection of the Union budget in the event of a breach of the principles of the rule of law in a Member State. Such corpus selection responded to the paper’s tenet that the AG’s conclusions are a relevant sample of legal persuasion, generally carried out by highly specialized jurists on EU matters, and which constitute valuable advice generally provided to the Court of Justice of the European Union by such experts.

When we chose to speak about persuasion, we resorted to previous work that supports that in law it is carried out by the transmission of core values such as legitimation, justice and trust in the system. The nub of the text, as we were able to conclude, was that the main persuasive argument of the AG’s is that the Union's budget is one of the main instruments by which the fundamental principle of solidarity between Member States should be put into practice in the Union's policies and actions, precisely for such principle to be upheld. More importantly, the implementation of such a principle is based on the Member States’ mutual trust in the responsible use of the common resources of that budget. And precisely, sentiment items, legal technolects and emotional implicatures are the tools used by the issuer of the text to give consistency to those emotions of trust, justice and shared values.

Still, our central hypothesis was that there should be variances in the emotional language deployed in the original version of the conclusions and its translation into English, rooted in the different mechanics of each law system, inevitably leaving their traces in the wording of the legal text, and springing from differences in the functionality and character of English and Spanish. And if the two versions transmit persuasiveness and emotion, the way in which they do it is not always similar. Our study has tried to prove that English is a more concise language, less lexically rich, less prolix, as compared to the richer nominal range of the Spanish language. Additionally, hedging, or absence of blatant language, is a typical trait of English, and, if priming and the legal narrative, or mythopoiesis, are similarly present in both versions, there is a slight difference in emotion polarity and intensity between the original and its translation, the latter being more positive and slightly more intense than the former. The Spanish AG follows the style of civil-law legal drafting–conventional, formulaic–, and seems to beat little about the bush in rejecting the claims by Hungary and Poland, sometimes with cold neutrality, while his words in translation gain more subtlety, less bluntness and acquire the more colorful hue of common-law judicial writing. All in all, the texts under analysis show subtle, but evident, dissimilarities in their persuasive style. While the original text fits the administrative, blunt rhetorical prose of legal Spanish, its English translation deploys a more emotional tone to reprimand the two deviant countries, whose idea of shared values, justice and trust appears to be quite different from the underlying philosophy of the rest EU Member States.