It is time to shift our focus from the nature of legal language to how the profession uses it to accomplish its aims, especially in the courtroom ([19] 143).
Abstract
I will suggest, in this article, a possible explanation of the fact that legal language appears incoherent to the general public. I will present one legal text (an indictment), explaining why it appears incoherent to legal laypersons. I will argue that the traits making this particular text appear incoherent are, first, that a specialized legal meaning is conveyed implicitly and, second, that there are no key-words that could direct laypersons to the knowledge making this meaning obvious to legalists. I will conclude that any legal text having these traits is likely to appear incoherent to the general public and suggest that the traits making my example appear incoherent might be rather common among the various texts of the various legal systems. On this suggestion there is no need to assume any causal relation between lawyers’ social interests and the apparent incoherence of legal language as it entails that this incoherence is inevitable. (I will argue that it is a result of the facts that legal language is ordinary language used, in the ordinary way, in the special context of the legal discourse.)
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Notes
The word “game” is meant to bring to mind Wittgenstein's notion of “language games”; it suggests a relation existing between language uses and communicational networks used by various speakers in suitable social circumstances ([27] P.I. 23, 66–67), and in Wittgenstein's words: “For a large class of cases…the meaning of a word is its use in language” ([27] P.I. 43).
The referential identity within the cohesive chain of the participants of the occurrence is formed by lexical repetitions, especially of the antecedents: “accused” and “defendant”, in spite of the syntactic possibility of substituting pronouns in their stead. The redundant use of nouns rather than pronouns is a common characteristic of legal hyperprecision ([3] 133, 176; [6] 252–255).
In judicial verdicts, for example, the level of the argument is usually the level of the complete text; in the terminology of formal logic, a typical verdict includes the set of premises of the argument that the judicial sentence is its conclusion.
Tiersma expresses his deep appreciation of Mellinkoff's work saying that his own book is an effort to update Mellinkoff's Language of the Law with new information and a more linguistic approach ([21] 50).
The documents of this case relied on official court transcripts, originally in Hebrew, which I accessed directly from the court archives.
The roots of this principle—the defendant should be able to understand the accusation ascribed to him/her by the indictment—goes back, it seems, to the 1362 Statute of Pleading (“the Magna Carta of the Anglo-Saxon language” in Wagner’s terms) which denounced French as a legal means of communication and started instead the use Law English, explaining that
…the laws, customs, and statutes of the realm are not commonly known in the same realm, for that they be pleaded, shewed, and judged in the French tongue, which is much unknown in the said realm, so that the people which do implead, or be impleaded in the king’s court, and in the courts of others, have no knowledge nor understanding of that which is said for them or against them by their serjeants and others pleaders ([24] 97).
The buildings are rather close together, the walls are thin, and most of the year people leave their windows open.
In inferential pragmatics a “linguistic cue” is understood as some inappropriateness in the content or form of deliverance of an utterance or a text. Inferential pragmatics focuses on the kinds of implicit information suggested by certain kinds of inappropriateness, see [6], [11], [17]. I argued in [1] (“Semantically cued unspoken assumptions in the legal texts”) that both linguistics and legal interpretation will benefit from applying Relevance Theory to the texts of the legal discourse as Relevance Theory is an effective tool for deciphering linguistic cues and the legal discourse is an ideal “field of experimentation” for Relevance Theory.
Suppose, for example, that one person A pushes another person B from a tower and as B is falling down, before he hits the ground, a third person C shoots him causing severe injury. In that case, if B is found dead then C will be charged of murder (and A will only be charged of attempted murder) since C’s wrongdoing is closer in space and time to the event discussed in court—B’s death—than A’s.
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Acknowledgment
I would like to thank Dr. Annan Erev for his help in the technicality of formal logic.
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Azuelos-Atias, S. On the Incoherence of Legal Language to the General Public. Int J Semiot Law 24, 41–59 (2011). https://doi.org/10.1007/s11196-010-9176-7
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DOI: https://doi.org/10.1007/s11196-010-9176-7