Characteristics of legal - PowerPoint Presentation

Slide1

Characteristics of legal language

Slide2

ActivityMake a list of

the

kinds

of

features

associated

with

legal

language

. Do

not

worry

about

the

‘

proper

’

name

for

the

features

;

perhaps

start

just

by

writing

down

some

examples

or

phrases

that

seem

characteristic

of

legal

texts

www.law.cornell.edu

Slide3

Written legal language

Precision

(

e.g

.

definitions

)

Information

overload

Abbreviations

Intertextuality

Syntactic complexity

Nominalization

The

use

of

doublets

and

triplets

(

breaking

and

entering

,

null

and

void

,

last

will

and

testament)

Archaisms

Latin

terms

(

ratio

decidendi

,

obiter

dicta

, stare

decisis

)

Slide4

Saying it twice: examples

Breaking

and

entering

Null

and

void

Fit

and

proper

Aid

and

abet

Goods

and

chattels

Slide5

activityConsider the

pairs

above

.

Does

each

part

of

the

pair

mean

the

same

thing

?

Look

up

each

of

the

pairs

in

a

dictionary

Slide6

Breaking and entering

entering a residence or other enclosed property through the slightest amount of force (even pushing open a door), without authorization. If there is intent to commit a crime, this is burglary. If there is no such intent, the breaking and entering alone is probably at least illegal trespass, which is a misdemeanor crime. (See: burglary, trespass

).

Slide7

Breaking and entering

Break

to (cause something to) separate suddenly or violently into two or more pieces, or to (cause something to) stop working by being damaged

;

to destroy or end something, or to come to an end: to do something better than the best known speed, time, number, etc. previously

achieved

;

:to

fail to keep a law,

r

ule, or

promise

Enter

to come or go into a particular place: to be included in a competition, race, or exam, or to arrange for someone else to do this: to put information into a computer, book, or document: to become a member of a particular organization, or to start working in a particular type of job: to begin a period of time:

Slide8

Null and void

1.

having

no legal

force

; 2. (

of

an agreement or contract) having no

l

egal effect and to be considered therefore as if it did not

exist

Null

1.

Having

no

legal

or

binding

force

; 2.having

or

associated

with

the

value

zero; 3.

lacking

distinctive

qualities

Void

1.

Having

no legal force or effect; not legally binding or

enforceable

; 2.

useless

; ineffectual; vain.

Slide9

Fit and proper

Morally

suitable

;

The

concept of a ‘fit and proper’ person is a fundamental one in many professions, jurisdictions and

organisations

as it is used to determine a person’s honesty, integrity and reputation in order to confirm that they are fit and proper for the role they are undertaking. There is, however, no single infallible test regarding what constitutes a ‘fit and proper’ person and in some instances, this requirement is not defined in

legislation

For example, in the case of

General Council of the Bar of South Africa v

Jiba

and others [2016] 4 All SA 443 (GP)

, it was stated that in determining whether a person was a ‘fit and proper’ for the legal profession, such person should have

integrity, dignity, the possession of knowledge and technical skills, a capacity for hard work, respect for legal order and a sense of equality or fairness.

Slide10

Fit and properFit

1.

healthy

and strong, especially as a result of exercise:

2.

suitable

for a particular purpose or

activity

Proper

real, satisfactory, suitable, or correct

:

› showing standards of

behaviour

that are socially and morally

acceptable

;

complete

Slide11

Aid and abet

To help and encourage, usually in the commission of a crime or anti-social act

.

;

The person who aids and abets participates in the commission of a crime by performing some Overt Act or by giving advice or encouragement. He or she must share the criminal intent of the person who actually commits the crime, but it is not necessary for the aider and abettor to be physically present at the scene of the crime.

Slide12

Aid and abet

Aid

To

help

,

assist

,

or

support

Abet

to help or encourage someone to do something wrong or illegal:

If one person abets another, they help or encourage them to do something criminal or wrong. Abet is often used in the legal expression 'aid and abet'.

Slide13

Goods and chattels

the things that you own other than land and

buildings

Goods

items

for sale, or possessions that can be

moved

;

things for sale, or the things that you

own

;

things, but not people, that are

tra

nsported by railway or

road

Chattel

a piece of personal property, including something that can be moved, or rights such as copyright and patents, but not usually including land and buildings:

Slide14

Synonyms?Goods

and

chattels

:

someone’s

possessions

, not

including

any

houses

or

land

that

they own

Goods

is a term of flexible context and meaning and extends to all tangible

items

Chattel

:

an

item of personal property which is movable, as distinguished from real property (

land

)

Fit

and

proper

: a

very

important requirement for admission as an attorney or

advocate

; (fit:

in a

good

enough

physical

or

mental

condition

;

proper

:

morally

good

;

serious

)

Aid

and

abet

:

To

assist another in the commission of a crime by words or

conduct

Abet

:

to encourage, support, or countenance by aid or approval, usually in

wrongdoing

;

aid

:

to provide support for or relief to; help:

Slide15

Repetition I swear to

tell

the

truth

,

the

whole

truth

and

nothing

but

the

truth

‘

the

whole

truth

’ – ‘

lies

of

omission

’ are

not

allowed

The

formula

has

a

poetic

function

,

signals

the

importance

of

the

oath

Slide16

Binomials/doublets

After

the

Norman

Conquest

(1066) a

large

number

of

French

words

were

borrowed

It

became

comon

to use

both

the

English

and

the

French

term

for

the

same

concept

or

referent

There

was

some

doubt

whether

the

words

were

full

synonyms

;

it

was

safe

to

include

both

variants

just

in

case

there

was

a

difference

of

meaning

Another

reason

:

the

poetic

function

of

language

:

binomials

provide a

certain

rhythm

;

suggest

formality

and

ritual,

which

are

important

to

the

law

Slide17

Borrowings from Latin and French

Latin: stare

decisis

‘

stand

by

the

decision

’,

ratio

decidendi

‘

reason

for

deciding

’,

obiter

dicta

‘

sth

said

in

passing

’’

French

:

estoppel

‘

legal

rule that prevents someone from changing their mind about something they have previously said is true in

court

’;

tort

‘civil

wrong

’

Slide18

Overlapping between ordinary and

legal

language

Consideration

-

something of value given to someone in return for goods, services, or some other promise. 

Reasonable

-

in

law, just, rational, appropriate, ordinary or usual in the circumstances. It may refer to care, cause, compensation, doubt (in a criminal trial), and a host of other actions or activities.

Intention

-

a

mental attitude with which an individual acts, and therefore it cannot ordinarily be directly proved but must be inferred from surrounding facts and circumstances

Slide19

SummaryLegal language,

like

ordinary

language

,

has

been

influenced

by

history

English

legal

language

–

influenced

by

Latin

and

French

Some

parts

of

legal

language

–

opaque

, some

look

like

ordinary

language

Slide20

Properties required of legislative language

1. a

law

should

be

concise

2. Legislative

language

should

respect

rules

of

grammar

(

correctness

)

3.

It

should

use

terminology

consistently

(

precision

)

4.

It

should

avoid

ambiguity

(

clarity

)

5.

Laws

should

be

formulated

in

a

logical

way

,

and

the

reasoning

should

be

coherent

Slide21

Precision, vagueness and ambiguity

in

legal

language

„Natural

language

being

such

a

breeding

ground

for

ambiguity

, to

communicate

just

one set

of

meanings

while

excluding

many

others

is

often

impossible

; but

the

lawyer

must at

least

make

the

effort

,

and

legal

language

has

many

oddities

that

are

clear

evidence

of

the

kinds

of

effort

that

have

been

made

” (

Crystal

and

Davy

1969: 193)

Vagueness

–

acceptable

in

legal

language

(general

statements

)

Ambiguity

–

not

acceptable

(

multiple

interpretations

)

Slide22

Drafting problemsHow to

achieve

precision

?

How to

achieve

concision

and

precision

at

the

same time?

How to

achieve

clarity

and

concision

?

Slide23

Legal terms may have

multiple

meanings

(

polysemy

)

Therefore

,

they

are

often

defined

within

a

particular

context

to

avoid

mistakes

and

misunderstandings

Legal

language

–

many

definitions

Corpus

iuris

civilis

(

Code

,

Digest

, Institutes, Novellae; the Digest: 246 legal definitions)

Precision: Definitions

Slide24

Real and terminologicalReal d.: concern entities that exist in reality in the physical world (e.g. real property)“

Goods are movable by their nature, or if the law so determines”

Terminological d

. only exist in legal reality (e.g. an obligation)

Definitions

Slide25

MEANING OF “HOUSE” AND “HOUSE AND PREMISES”, AND ADJUSTMENT OF BOUNDARY.- (1) For purposes of this Part of this Act, “house” includes any building designed or adopted for living in and reasonably so called, nothwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes; and-

Example:

Slide26

(a) where a building is divided horizontally; the flats or other units into which it is so divided are not separate “houses”, though the building as a whole may be; and(b) where a building is divided vertically the building as a whole is not a “house” though any of the units into which it is divided may be…. (p. 68)

Example (cont.)

Slide27

Vagueness: examplesReasonable

:

Reasonable

man

Beyond

reasonable

doubt

Reasonable

force

Reasonable

care

Reasonably

foreseeable

Slide28

Reasonable man/person

A

fictional person with an ordinary degree of reason, prudence, care, foresight, or intelligence whose conduct, conclusion, or expectation in relation to a particular circumstance or fact is used as an objective standard by which to measure or determine something (as the existence of negligence)

Reasonable

man theory refers to a test whereby a hypothetical person is used as a legal standard, especially to determine if someone acted with negligence. This hypothetical person referred to as the reasonable/prudent man exercises average care, skill, and judgment in conduct that society requires of its members for the protection of their own and of others' interests. This serves as a comparative standard for determining liability. For example, the decision whether an accused is guilty of a given offense might involve the application of an objective test in which the conduct of the accused is compared to that of a reasonable person under similar circumstances.

Slide29

Beyond reasonable doubt

The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

If the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty

.

Beyond a reasonable doubt

is the highest standard of proof that must be met in any trial

Slide30

Reasonable forceReasonable force refers to the amount of force necessary to protect oneself or one's property. Reasonable force is used to defend one's person or property from a violent attack, theft, or other type of unlawful aggression. It is used as a defense in a criminal trial or to defend oneself in a suit alleging tortuous conduct. When a person uses excessive force or more than the force necessary for such protection, s/he is considered to have forfeited the right to defense.

Slide31

Reasonable carethe degree of caution and concern an ordinarily prudent and rational person would use in similar circumstances. It is a standard used to determine a legal duty and whether such duty was fulfilled.

Slide32

Reasonably foreseeableA consequence is reasonably foreseeable if it could have been anticipated by an ordinary person of average intelligence as naturally flowing from his actions

.

When determining whether a defendant breached his duty of care by acting below the standard of care, the court first determines whether the

risk

was

r

easonably

foreseeable

Slide33

Syntactic complexityProductivity

,

compositionality

,

recursion

– some

of

the

universal

properties

of

language

Mechanisms

of

recursion

:

coordination

and

embedding

Compound

sentence –

all

parts

of

equal

importance

:

coordination

Complex sentence -

embedding

Slide34

Syntactic complexity

Long

sentences

:

Compound

sentence

Complex sentence

Slide35

Compound sentencesComprise

of

a

string

of

simple

sentences

of

equal

importance

joined

together

with

words

such

as ‘

and

’:

E.g

.

The

patron

may

be

allowed

to

remove

food

from the Hotel and the Hotel may allow such activity and the patron will sign an agreement and the

patron

will

accept

responsibility

for

the

food

A

compound

sentence

may

be

long

, but

all

its

component

parts

are

equal

in

terms

of

being

at

the

same

hierarchical

level

;

this

is

not

the

case

with

a complex sentence

Another

feature

of

legal

language

:

repetition

–

using

nouns

instead

of

pronouns

Slide36

Complex sentenceAttention should

be

paid

to

relations

between

the

clauses

In

older

statutes

–

long

sentences

, no

formatting

and

very

little

punctuation

Complex

sentences

–

harder

to

process

than

compound

sentences

Slide37

Complex sentencesMain

clause

,

subordinate

clauses

:

E.g

.

In

the

event

that

a patron

wants

to

remove

leftover

food

from

the

Hotel,

the

Hotel

may

allow

such

activity

only

if

such

patron

acknowledges

,

by its signature below, its agreement to accept responsibility and abide by the terms set forth in this

Agreement

(

document

from

a

Marriot

hotel

in

London)

Slide38

Complexity: Act of Settlement (1701)Whereasin the First Year of the Reign of Your Majesty and of our late most gracious Sovereign Lady Queen Mary (of blessed Memory) An Act of Parliament was made

intituled

[An Act for declaring the Rights and Liberties of the Subject and for

setling

the Succession of the Crown] wherein it was (amongst other things) enacted established and declared That the Crown and

Regall

Government of the Kingdoms of England France and Ireland and the Dominions thereunto belonging should be and continue to Your

Majestie

and the said late Queen during the

joynt

Lives of Your Majesty and the said Queen and to the Survivor And that after the Decease of Your Majesty and of the said Queen the said Crown and

Regall

Government should be and remain to the Heirs of the Body of the said late Queen And for Default of such Issue to Her Royall Highness the Princess Ann of Denmark and the Heirs of Her Body And for Default of such Issue to the Heirs of the Body of Your Majesty And it was thereby further enacted That all and every Person and Persons that then were or afterwards should be reconciled to or shall hold Communion with the See or Church of Rome or should

professe

the Popish Religion

F1

... should be excluded and are by that Act made for ever [

X1

incapable] to inherit possess or enjoy the Crown and Government of this Realm and Ireland and the Dominions thereunto belonging or any part of the same or to have use or exercise any

regall

Power Authority or Jurisdiction within the same And in all and every such Case and Cases the People of these Realms shall be and are thereby absolved of their Allegiance And that the said Crown and Government shall from time to time descend to and be enjoyed by such Person or Persons being Protestants as should have inherited and enjoyed the same in case the said Person or Persons so reconciled holding Communion professing

F1

... as aforesaid were naturally dead

Slide39

LayoutNumbering

of

sections

and

subsections

in

modern

statutes

for

ease

of

navigation

In

older

statutes

– a

block

of

text

with

no

formatting

and

very

little

punctuation

(

setting

the text as a block made it more difficult to make fraudulent additions later); lack of punctuation – related to the idea that

legislation

was

not

intendedto

be

read

aloud

;

also

–

it

could

cause

ambiguity

Slide40

LayoutThe

way

legislation

is

laid

out

makes

it

easier

to

follow

the

structure

and

understand

its

meaning

While

complex

sentences

are

typical

in

written

legal

language

,

there is one complex construction that is particularly commonLook at the first three subsections. What is the basic underlying

structure

?

https://www.youtube.com/watch?v=Qx6Bk9OTnbI

Slide41

Complex sentence: example (Bribery Act 2010)

1.

Offences

of

bribing

another

person

(1) A

person

(P)

is

guilty

of

an

offence

if

either

of

the

following

cases

applies

.

(2) P

offers

,

promises

or

gives a financial or other advantage to another person, and(b) P intends the advantage (i) to induce a person o perform

improperly

a

relevant

function

or

activits

,

or

(ii) to

reward

a

person

for

the

improper

performance

of

such

a

function

or

activity

Slide42

StructureIf X then

Y,

or

Y

is

true

if

X

is

true

„

There

are

of

course

many

possible

variations

on

this

basic

theme

, but

in

nearly

all

of

them

the

‘

if X’ component is an essential: every action or requirement, from a legal point of view, is hedged around

with

,

and

even

depends

upon

, a set

of

conditions

which

must

be

satisfied

before

anything

at

all

can

happen

(

Crystal

and

Davy

1969: 203)

Slide43

Look at the subsections of

Section

1 (2) (b)

‘

perform

improperly

’

‘

improper

performance

’

While

legal

language

tends

to use a

small

set

of

verbs

,

it

uses

a

large

number

of

complex

noun

phrases

–

highly

nominal

Encoding something as a noun, when it could be another kind of a word (e.g. a verb)- nominalisation

Slide44

NominalizationAn action

can

be

encoded

as a

noun

While

legal

language

uses

a

small

set

of

verbs

,

it

uses

a

large

number

of

complex

noun

phrases

,

and

can

be

said

to be ‘highly nominal’Encoding sth as a noun, when it could be another kind of word – nominalization (Tiersma 1999: 77)

Slide45

Nominalisation - exampleTrustee

Act

2000

Section

3 General Power

of

Investment

(1)

Subject

to

the

provisions

of

this

Part

, a

trustee

may

make

any

kind

of

investment

that

he

could

make

if

he

were

absolutely

entitled to the assets of the trust…Is there nominalisation here?1. Subject to the provisions of this Part, a trustee

may

invest

in

any

way

that

he

could

if

he

were

absolutely

entitled

to

the

assets

of

the

trust…

Slide46

Nominalisation Nominalisations –

common

in

legal

language

Nominalisation

can

lead

to

shorter

and

less

complex sentence

structure

Slide47

Logical disposition helps to place legal information in a hierarchyLegal text moves from the abstract to the concrete, from the substantive to the proceduralStructure of the text should be consistent: the principal items presented before secondary items, general rules before special conditions and exceptions

Structure

and

formalism

in

legal

texts

:

Logical

disposition

Slide48

Logical structure of a code informs the reader about hierarchies of legal concepts and terms expressing those conceptsThanks to such a structure, it is easy for a lawyer or translator to find in a code the terms they are looking for and to establish the contexts in which these terms are used

Structure

of

codes

Slide49

Modern, complex society – enormous number of legal rulesLegal language should be as concise as possible to avoid laws and regulations that would otherwise be over-long and unclearAt the same time, legal language should avoid over-abstraction to enable decoding with minumum effort

Information overload

Slide50

The key: to know for

whom

laws

are

written

–

experts

or

citizens

?

Even

laws

concerning

fundamental

questions

of

citizens

’

lives

–

written

for

experts

who

are

charged

with

their

technical

application

(e.g. fiscal law)Laws – highly complex: distributive justice (=fairness

in the way things are

distributed

)

presupposes

highly

detailed

rules

Information overload

Slide51

Modern law-abstract character; regulates entities that are mental creations: rights and obligations; e.g. in

Swedish legislation: only 5-8% verbal substantives refer to entities that exist in time and space

Law – based on experience drawn from the real world but it regulates hypothetical future cases; timespan linked to legal rules – often characterised by universality, impossible to see from the chronological standpoint: “timelessness of law”

Universality

and aloofness

Abstraction and Hypothetical Character

Slide52

Frequent use of passive: brings the object of the action into the foreground, giving the actor only a secondary roleEven when actors are in the foreground, individuals are pushed into the background by personification of authorities and corporations: e.g.

the ministry orders (…), the court finds(…)

Impersonality

and

Objectivisation

Slide53

Actors to do not appear under their private names but are called by their titles or functions: director, president, etcPrivate persons -named according to their roles:

applicant, appellant, defendant

Advocates seek to lend their arguments an appearance of objectivity to make them credible and convincing (e.g. “

It appears that Article 27 of the law on judicial records should be interpreted so that

(…); not: “

It seems to me…

)”

Impersonality and Objectivisation

Slide54

Legal language today: official and formalNeutral style: to have an effect on the understanding, rather than the feelings, of the reader or listenerLegal style: cold: rejects all that is affective and does not include emotional elements

Legal texts: no exclamation or question

marks

Neutrality of legal language – guaranteed by the fact that many legal texts (laws, administrative instructions, on the Continent also judgments) pass through the offices of several commentators and stylists before receiving their final form: they are not from a single hand

Neutrality

Slide55

Legal language – characterised by “zero style”; however: advocates’ closing speeches are often affectiveSobriety of legal language – visible in legislative texts; exceptions: preambles to laws, whose style is often full of pathos and emotion

Neutrality

Slide56

a figure of speech that describes a subject by asserting that it is, on some point of comparison, the same as another otherwise unrelated object. a type of

analogy

and is closely related to other

rhetorical figures of speech

that achieve their effects via association, comparison or resemblance

All the world's a stage,

And all the men and women merely players

;

They have their exits and their entrances

;

Metaphor

Slide57

In contrast to medieval times, modern legal language is neutral; no longer figurativeOnly a few modest traces remain of the colourful legal language of the past, mostly in the form of legal maximsIn modern legal language, metaphors are rare

Metaphors: common in solemn speeches on the notion of law, its fundamental principles, etc.

Metaphors e.g. “landscape of legal culture”

Metaphors

Slide58

“burden of proof” (Roman law: onus probandi: calques all over Europe: onere della prova, carga de la prueba

,

charge de la preuve

,

Beweistlast

,

bevisbörda

,

Source of law

Metaphors

Slide59

Legal order – systemic character: each element forms part of a greater wholeAn article forms part of a law, and a law forms part of legislation. In civil-law countries, precedents complement legislation; in common-law countries they are of fundamental importance; legal science – also important; result: each element should be in harmony with the entirety of the legal order

Systemic character

Interrelationship of different elements of the law

Slide60

Systemic character of the legal order - components of the order linked to one another by references: intertextualitygiven that law relies on authorities (e.g. the legislator, the courts), a legal text has a dependent relationship with other texts; an article of the law refers to other articles of the same law or to other legislative texts, a judicial decision refers to laws, a legal textbook or treatise refers to laws, etc.

Interrelationship

of

different

elements

of

the

law

:

intertextuality

Slide61

1. in reinforcing the systemic idea of the legal order, references are appropriate for eliminating internal contradictions 2. References show the wider contexts to which the different elements of the legal order belong; informative and mnemotechnical function. A reference shows that another legal text exists that links to the issue involved

3. References eliminate repetitions, the text becomes lighter and more economical

Functions of referencing

Slide62

Too many references make a text difficult o understand, potentially causing mistakes and misunderstandings; a legal text becomes a “hypertext” weighed down with a large number of references making the reader lose the thread of the document; such a text saves space but is very difficult from the reader’s stand-point

Problems of Referencing

Slide63

“A person who fails to make a declaration, or who does not make it in a correct or complete manner, or in due time, contrary to paragraph 2 of Art. 4, paragraph 1 of Art. 26, Art. 27, Paragraph 1 or 2 of Art 28, paragraph 1 or 2 of Art. 28 a, paragraph 2 of Art. 34 paragraph 1 or 2 of Art. 38 or paragraph 2,3 or 4 of Art. 42, or who fails to attach the items prescribed by law to the declaration, contrary to paragraph 2 of Art. 26, paragraph 2 of Art. 34, paragraph 2 of Art. 38 or paragraph 3 or 4 of Art. 42, contravenes the law (decree implementing law on firearms, Art 43, p. 4) German legislation on firearms

Problems of Referencing

Slide64

Official title of a law, a publication, or an office can be long and complicated Ie.g. Receueil de jurisprudence du droit administratif et du Conseil d’Etat)The use of initialisation (RJDA) facilitates references to various texts

Space-saving

Frequency

of

initialisations

and

acronyms

Slide65

The legislator seeks to ensure respect for legal rules, notably by linguistic means: solemnityThe entry into force of a constitution – performed by a formula full of dignityA close connection between the gravity of a text and its archaic character

Archaism and Solemnity

Slide66

Anaphora The use of pronouns for a recurrent noun phrase – anaphoraLegal

texts

–

very

low

levels

of

pronoun

use

and

hence

low

levels

of

anaphora

of

this

kind

Slide67

Searching for clarityTrying to

avoid

syntactic

complexity

,

ambiguous

words

and

unhelpful

nominalisations

–

important

in

making

legal

language

more

accessible

to

lay

reader

Acquiring

legal

language

is

not

limited

to

learning a set of terms; it is also about learning a new way of thinking, entering into a different language

and

a

different

world

(

Mooney

2014: 38)

While

the

sign

universes

of

legal

language

and

ordinary

language

may

be

parallel

,

they

are

not

isomorphic

,

i.e

.

they

do

not

completely

correspond

Slide68

Plain English„Plain English

does

not

involve

the

simplification

of

a

law

to

the

point

it

becomes

legally

uncertain

. In

particular

, care

needs

to

be

taken

that

legal

uncertainty

is

not

created when dispensing with terms having established meanings for users of legislation. Plain English may involve a balance of

simplicity

and

legal

certainty

to

ensure

the

law

is

both

easily

read

and

understood

and

legally

effective

to

achieve

the

desired

policy

objectives

,

(

Queensland

Government

, 2011,

section

3.5.1)

Slide69

Plain languageLegal

language

may

be

the

most

effective

and

comprehensible

variety

if

the

addressee

is

a

legal

professional

Plain

English

is

highly

desirable

for

texts

addressed

to a

lay

audience

The

move from ‘legal English’ to ‘Plain English’ is similar to a translationBecause of this, the move to Plain English requires the involvement

of

willing

legal

professionals

who

are

blingual

Slide70

Terminology1) the set

of

practices

and

methods

used

for

the

collection

,

description

and

presentation

of

terms

2) a

theory

required

for

explaining

the

relationship

between

concepts

and

terms

3) a

vocabulary

of a special subject-field

Slide71

TermsTerms should

be

:

Accurate

Concise

Easy

to

spell

and

pronounce

Allow

the

formation

of

derivatives

Linguistically correct

Monosemous

(having 1 meaning) ,

mononymous

(consisting of one word), and a member of a term system

Slide72

Legal terminologyA) “pure” law

terminology

(

estoppel

)

B)

law

terminology

found

in

everyday

speech

(

title

‘

right

’)

C) everyday words assigned a special meaning in a given legal context (e.g.

Frigaliment

Importing Co., Ltd. v. BNS International Sales Corp.

, 190 F. Supp. 116 (

S.D.N.Y.

1960

), https://www.youtube.com/watch?v=GANTX_Irim4

D) terms from other disciplines

Slide73

Frigaliment Importing Co., Ltd. v. BNS International Sales Corp., 190 F. Supp. 116

FACTS:Defendant

state sales corporation had two contracts with plaintiff foreign corporation for the sale of "chicken". After plaintiff received one shipment of stewing chicken and another was stopped, plaintiff brought a breach of warranty action, alleging that the goods sold should have corresponded to the description because the chicken was not suitable for broiling and frying. Plaintiff says 'chicken' means a young chicken, suitable for broiling and frying.

ISSUE:Does

chicken mean only "young chicken" under the contract?

ANSWER:No

.

Defendant's

subjective intent that it could comply with the contracts by delivering stewing chicken coincided with objective meaning of "chicken," which had at least some usage in the trade; and plaintiff did not sustain its burden that "chicken" was used in the narrower rather than in the broader sense.

Slide74

Everyday words assigned a special

meaning

in

a

given

legal

context

:

example

Welfare

of

Pigs

Act

1998 –

definition

of

a

pig

for

the

purposes

of

that

law

: “

pig

means

an

animal

of the porcine species of any age, kept for breeding or fattening”If a pig fails to fulfil either of the

two

qualifying

conditions

,

its

owner

stays

outside

the

scope

of

that

law

Slide75

English legal termsRemember

the

rule

: Legal

terms

must

be

:

Monosemous

(

having

1

meaning

) ,

mononymous

(

consisting

of

one word),

and

a

member

of

a

term

system

How

about

English

legal

terms

?

Slide76

English legal termsMulti

-word

expressions

and

phrases

Polysemy

Synonymy

Slide77

PolysemyWhen p.

occurs

,

interpreters

of

the

text

should

be

able

to

assign

to

a

term

the

meaning

appropriate

to

the

context

Often

–

easy

to

distinguish

between

different

meanings

;

sometimes – impossible to tell what is the correct interpretation of the text: ambiguity

Slide78

SynonymyOpposite to polysemy

:

two

or

several

terms

express

the

same

concept

Synonymy – a common feature of legal terms

In legal languages with several layers of language, such as English, this is especially frequent

Legal English often expresses the same concept by an Anglo-Saxon term, a French term, and a Latin term

Slide79

Legal conceptsLaw – a

social

phenomenon

Legal

rules

differ

in

different

legal

orders

Legal

concepts

also

differ

Slide80

Legal conceptsWhere

the

concepts

of

two

legal systems

differ

,

the

semantic

domains

of

legal

terms

do

not

correspond

with

one

another

Historical

interaction

between

societies

:

legal

concepts

of

Sweden

and Finland _ very close, since Finland formed part of the Kingdom of Sweden for over 6 centuries; England and

the

US: English

law

was

applied

in

the

former

colonies

Slide81

Scientific terms introduced into

law

Terms

from

other

sciences

introduced

into

statutes

The materials may introduce a specific meaning, broader or narrower than the scientific one

Medical terms e.g.

alchoholic

or

drug addict

may be understood in law differently

The scientific term becoming a legal term may acquire a different meaning

Slide82

The future?Future legal language

– more

descriptive

than

conceptual

and

closer

to

ordinary

language

More

guidelines

with

reference to

the

linguistic

aspects

of

creation

and

application

of

law

Slide83

ProblemsSome efforts

directed

towards

the

modernization

of

legal

terms

may

not

lead

to

an

increase

in

their

understandability

Legal

vocabulary

–

rarely

used

and

understood

in

an

isolated

formAttempts to increase understandability should focus on the structure of legal texts The impact of modernization of legal vocabulary

should

not

be

overestimated