The Speech Acts in English Legal Texts A Master Thesis Submitted to Graduate School, Southwest University of Political Science and Law In Partial Fulfillment of the Requirements for Master Degree of Forensic Linguistics in Foreign Linguistics and Applied Linguistics April, 2008 Acknowledgements I would like to extend my gratitude to the following people, without whose support and encouragement, I could not complete the thesis. My deepest appreciation first goes to my thesis instructor, professor Xiao Yunshu, from whom, I have gained the most precious treasure, i.
e. the independent thinking ability, the problem-solving ability and the inspiration for my thesis. I have benefited not only from his teaching and expert guidance, but also from his thinking methods. And what’s more? His great patience and encouragement has given me so much confidence for completing the thesis. I should say thanks to Professor Zhao Liang, professor Song Lei, Professor Xiong Demi, Professor Zheng Daxuan and Professor Cheng Rukang, who used to teach me major courses from which I learned a lot of things, which are quite helpful for my thesis writing.
Thanks should also go to my friends in Sichuan International Studies University, who provided me with a lot of significant materials. And last but not least, I should say thanks to my parents and my boy friend who have given me the strongest support during the several months of my painstaking thesis composition. i Abstract The research on legal language has been very popular in recent years, which mainly focuses on lexicology, syntax, translation of legal language, i. e. , but rarely on the speech acts in English legal texts.
Therefore, based on the speech act theory, the thesis intends to study the speech acts in English legal texts, including legislative texts, judicial texts and other legal texts, which are called legal speech acts, since they are of legal effects. Generally, the speech acts in legal texts, performs the functions of normalizing and regulating people’s behavior, which are usually reflected by the combination of such modal verbs as “shall”, “may”, “can”, “should”, “ought to”, etc. and such performative verbs as “enact”, “command”, “repeal”, “entitle”, “amend”, “agree”, “award”, “certify”, “swear”, “affirm” and so on.
In many cases, a legal speech act verb is enough to demonstrate a legal speech act. Based upon the previous studies on speech acts by Austin (1962), Searle (1975), and Trosborg (1995), the thesis classifies the English legal speech acts into regulatives, declarations, behabitives, verdictives, directives and requestives. Almost every research on a specific language phenomenon has its own purposes, which can be generalized as follows: (1) to illustrate an abstract language system or to verify a linguistic theory based on the whole language; (2) to solve the problems of language life.
Therefore, the overall aims of the thesis are to analyze the manifestation of English legal speech acts, to exam or certify the speech act theory in legal register and to reveal the principles, the functions and the characteristics of legal speech acts. To achieve those objectives, the thesis first gives a brief introduction to the speech act theory, the present research states both at home and abroad and the significance of the study. Then an overview on English legal texts is made to lay a foundation for the analysis of English legal speech acts.
Chapter One Introduction
An overview on the speech act theory As one of the core theories, what the speech act theory focuses on is how a speech can act instead of what the speech signifies. The speech act theory, with the basic thought that saying is behaving is first proposed by Austin, who is a linguistic philosopher. In 1950s, Austin made a series of lectures related to the fact that how to do things with words in Harvard University of the United States.
He holds that people in fact are performing an act when he/she speaks, and that the fact that sentences are just classified into declaratives, interrogatives and imperatives will not be propitious for the understanding and the using of discourses, because an utterance usually performs different functions under different contexts. For example, if someone says “Can you pass me the book? ”, we will generally understand it from two perspectives, that is, it is just an interrogative one on the one hand, but on the other hand, it is a request proposing, i. e. , the act of passing the book is a good reaction to the utterance. .
Austin’s speech act theory Before Austin, there was a hypothesis that the function of a statement was either to describe the states of a thing or to state a fact, which is either true or false. As a matter of fact, what philosophers concern is just the verifiability of a statement and the fact that how to define the conditions that a true statement should meet. Namely, unless a sentence can be verified, at least in principle, it is, strictly speaking, meaningless. He distinguishes two kinds of utterances, i. e. , constatives, which state a fact r describes a thing, and performatives, which mean saying is doing, such as promising, apologizing, thanking, congratulating, etc.. For example, the sentence “He promised to be here at five o’clock” is a constative, while, the sentence “I promise to be here at five o’clock” is a performative. To some extent, there are great differences between constatives and performatives, since constatives which are used to describe a thing or the states of a thing can be testified for its truth or falsity, but performatives , which are understood as performing an act, can not be testified for its truth or falsity. Later, Austin divides performatives into explicit performatives (e. g. , I order you to shut the door. ) and implicit performatives (e. g. , It’s very cold here. ). Austin is not satisfied with his division of constatives and performatives, so he proposes that one’s speaking is, in fact, performing three acts simultaneously, i. e. , locutionary acts, illocutionary acts and perlocutionary acts. A locutionary act refers to the speech itself, i. e. , the production of meaningful linguistic expressions, such as words, phrases and sentences, which can not be regarded as a real speech communication.
An illocutionary act means an act conveying an implication, by which the speaker’s purpose can be realized. A perlocutionary act is the consequential effects on the feelings, thoughts, or actions of the hearer generated by an utterance. Austin divides perlocutionary acts into five types according to their illocutionary force: Verdictives, Excercitives, Commissives, Behabitives and Expositives. Verdictives mean the giving of a verdict by a jury, an arbitrator or an umpire (e. g. , estimating, reckoning, etc. ). Exercitives are the exercising of powers, rights or influence (e. . , warning, ordering, bequeathing, etc. ). Commisives are typified by promises which create obligations on speakers (e. g. , promising, committing, pledging, vowing, etc. ). Behabitatives are used to show one’s attitudes towards something (sympathizing, congratulating, agreeing, etc. ). Expositives are typified by explaining or arguing something (e. g. , affirming, stating, denying, etc. ). According to Austin’s classification, the first three groups are regarded as legal speech acts, since they are related to law, showing a kind of authority and power.
Although he has given the five categories above, he is not quite satisfied with them, because he finds that the last two classes are most troublesome, and they do not seem to be clear and even cross-classified. He regards “behabitives” troublesome just because they are too miscellaneous altogether; and the same to “expositives”, because they seem extremely numerous and important. Moreover, he holds that some of the categories seem to be either included in other classes or to be unique in a way that he has not succeeded in making clear even to him.
Therefore, a new classification is needed. The development of the speech act theory by Searle As Searle says, the language use is also a behavior with a purpose under the control of a rule, like other social activities. He holds that speaking is, in fact, an engagement in a rule-governed behavior model. He also holds that it is speech acts that are the minimal units of the human communication, instead of words or sentences, and that each speech act can constitute a discourse communication, reflecting the speaker’s discourse purpose.
It is Austin who proposes illocutionary acts, but he does not connect illocutionary acts with the content of the said utterance. Later, Searle discovers the connection between the propositional content, including the description of the said person, the said event and its illocutionary force. Here are some utterances that Searle employs to illustrate their relationship. (1) Sam smokes habitually. (2) Does Sam smoke habitually? (3) Sam, smoke habitually! (4) Would that Sam smoke habitually. Searle considers that the four utterances above enjoy the same propositional content, i. . , the subject of this utterance is Sam, and the four sentences talk about the same fact that Sam smokes habitually, but different implications can be concluded from them. Generally, the first utterance declares a fact, the second one is perhaps an invitation for a cigarette, the third one conveys information and the last one expresses a will. Searle believes that the illocutionary force of an utterance can be reflected through some linguistic devices, including the word order, the word stress, the mood, the tone, etc. while he does not make a further discussion on it. Later, he concludes four conditions that performing a speech act must meet, taking “commisives” for example: the propositional content condition (the speaker mentions an act that he/she will perform), the preparatory condition (the speaker believes that what he will do but not usually do is in favor of the hearer), the sincerity condition (the speaker is willing to perform an act) and the essential condition (The speaker will fulfill the obligation of doing a thing. . Based on the 3 said conditions, Searle develops the following corresponding rules, i. e. , the propositional content rule, the preoperational rule, the sincerity rule and the essential rule. According to the illocutionary force, the direction of fit and the expressed psychological states, he divides speech acts into five groups: representatives (e. g. , claiming, affirming, denying, informing etc. ), directives (e. g. , requesting, advising, ordering, demanding, etc. ) commissives (e. g. promising, undertaking, vowing, etc. ) expressives (e. g. , apologizing, thanking, regretting, congratulating, etc. ) and declarations (e. g. , naming, appointing, declaring, etc. ). (Mey, 2001: 120)
Indirect Speech Acts
Through a full exploration of the speech act theory, Searle finds that such utterance as “Can you pass me the salt? ” is not only a question of the “yes/no” type grammatically but a request for passing the salt, which is proposed by means of questioning, so he calls it an indirect speech act.
If the hearer passes the salt, never answering the question, his action will be a perfect one in reaction to the speaker’s utterance, since the speaker does not intend to inquire into the physical or moral degree of freedom of his or her interlocutor, but to tell him/her to pass the salt, and it is nothing more than doing so. Hence, Searle (1969) observes the phenomenon of indirect speech acts, built upon the following hypothesis: (1) Explicit performatives or explicit illocutionary forces can be inferred according to performative verbs. 2) The three major sentence types are: declaratives, interrogatives and imperatives which are respectively corresponding to stating, questioning and commanding. In this manner of speaking, performative intentions can be implied from utterances. Searle illustrates the possible implied meanings with the notion of indirect speech acts. He regards indirect speech acts as a combination of two acts, namely, the primary illocutionary act (e. g. , declining a proposal) and the secondary one (e. g. , making a statement).
Specifically speaking, the secondary illocutionary act is literal, and the primary illocutionary act is not literal. Let’s take “It is cold in here. ” for 4 example: the fact that the temperature here is very low at the moment he is speaking is the literal meaning, so we call it the secondary illocutionary act. And the non-literal meaning is that the hearer is required to close the window, or to start a fire in stove, so we call it the primary illocutionary act, which is the speaker’s real intention expressed in an indirect way. The majority of acts in daily conversations and some written works are indirect. Crystal, 1992) A person usually performs two acts simultaneously, when he/she utters a sentence, including the locutionary act that is a statement and the illocutionary act that is a request. The statement seems to be a medium, by which the speaker’s real intention is displayed. The non-literal meaning is not quite easily understood, so how a hearer can understand the non-literally primary illocutionary act on the basis of the understanding of the secondary illocutionary act is the question. In order to solve the problem, Searle builds a ten-step reasoning strategies based on the literal force. Mey, 2001) Indirect speech act theory, which is the biggest contribution Searle has made to the speech act theory, can be divided into conventional one and non-conventional one. The former refers to the illocutionary act which is used to make indirect speech acts, while the latter depends much more on the mutually shared knowledge of the background information and the context of an utterance.
Speech acts are not only a basic functional unit of an utterance, but also a basic analytical unit in the research of the language use.
To some extent, the basic idea of the speech act theory can be concluded as a sentence that saying is doing. Once the speaker speaks out a meaningful utterance which can be understood by the hearer and can change the states of affairs in the world, we can say he/she has performed a speech act. And the utterance can be made either directly or indirectly. In general, we may say that the majority of the utterances are performatives, since there is always something that one wants to do, when he/she speaks.
For instance, in saying “Hello”, one performs the act of greeting, and in making the statement “You Look nice”, one is conducting a compliment. Just as explained above, it is true that a speaker’s utterance 5 means exactly and literally his/her communicative purposes, which can be understood by the hearer according to his/her knowledge of the rules that govern the contents of the utterance, since the contextual effects are usually based on the common knowledge of the interlocutors involved in a conversation. 1. 2. The present research states of the legal speech acts 1. . 1. The foreign situation Austin, who is the first to propose speech act theory, classifies the performative verbs into five, but his classification has been criticized by Searle for the deficiencies in his classificatory schema. Austin himself realizes the categories that he has established are not mutually exclusive, as their criteria often overlap to some extent. Later, Searle reclassifies speech acts on the basis of Austin’s taxonomy. While, Habermas (1981) considers both of them fail to take the normative aspect of legal speech acts into consideration.
Especially, he criticizes Searle’s category of directives, holding that he does not distinguish regulatives with legal effects from the ordinary commanding acts without legal force, and in addition, the analysis of commisives by Austin and Searle can not work in legal texts, such as contracts and treaties, because in ordinary language, the speaker has promised to do something, but the fact that even he/she breaks the promise will only make him/her an insincere person at most in other people’s eyes, however, it is otherwise in legal texts.
Therefore, Habermas (1981) proposes his own classification of speech acts, in which legal speech acts are placed in one general class called regulatives among his classification of speech acts consisting of regulatives, expressives and constatives (Sarcevic, 1997: 135). Kurzon (1986), a professor in the Department of English Language and Literature of the University of Haifa in Israel, has made a lot of contributions to the study of legal speech acts. His work It is Hereby Performed: Explorations in Legal Speech Acts partly based on his PhD. issertation analyzes legal speech acts according to the model set out in Austin’s and Searle’s pioneering research. He generalizes the relationship between speech acts and the extended speech acts in his discussion of the 6 statutes and legislative acts as speech acts. Moreover, he proposes the potential speech acts, taking the British legislation for example and reversible performatives according to the necessary felicity conditions which are indispensable in the research into legal speech acts.
The hierarchical relationship between the speech acts may lead to a situation in which an utterance performs two or more acts simultaneously (Kurzon, 1986:19). Fotion’s model of master speech act (1971), which is considered the first pragmatic approach contributes much to the analysis in that a master speech act has a control over other speech acts in terms of the content, the mode, the manner, the topic and the nature. Trosborg (1995) has studied legal speech acts in legislative texts and contracts by means of making a categorization of different legal speech acts.
She makes a detailed elaboration from the perspective of legal register in terms of the field, the interactional tenor, the functional tenor and the mode. She also makes a contrastive study of linguistic devices in English Statutes and English contracts in order to further the discussion of the drafting and the translation of legal documents. 1. 2. 2. The domestic situation In China, the number of experts on legal speech acts is relatively less than that in foreign countries.
In this part, only a few typical experts’ researches are introduced. Zhang Xinhong(2000) has made a detailed analysis of speech acts in Chinese legislative texts from the perspectives of the classification, the functions, the distribution as well as the frequency of legal speech acts in legal texts. With the research conducted, he makes every effort to identify all the legal speech acts embodied in Chinese legislative texts by means of developing and establishing a relatively comprehensive standard for classifying legal speech acts.
Du Jinbang (2004) holds that the study of legal language from the perspective of speech acts can clearly reflect the relationship among language users, language receivers and legal language, which will provide a clear framework and will lay a foundation for the analysis of legal language in terms of other aspects. In addition, Du analyzes legal speech acts according to two elements: one is the procedure of interpreting law and regulations and the other is the process of applying law and 7 regulations.
For the latter, Du also points out that the courtroom language is the main field in which the frequency of speech acts is quite high. Hu Fanzhu(2005) tries to put forward a paradigm of discourse analysis in legal language study on the hypothesis that legal language is not only a functional variant of a certain language system, but also an aggregation of certain speech acts. By dint of the research, Hu finally concludes the constitutive rules of legal speech acts by giving a tentative but very feasible definition for legal speech acts based on his own research.
He also differentiates the constitutive rules of legal speech acts, involving the legal codes, the evidence, the discourse rights, the consistency, the procedure and the readability. Therefore, he holds that the focus of the research on legal language should include researches on norms of oral and written legal language, the testimony and documentary evidence, the code switching between oral and written language, the standard dialectic as well as the rhetorical strategies in legal language.
The Significance of the Study
Almost every academic research has some value to the society, since it has its own objectives, purposes and methods. The same is true to the study of speech acts in English legal texts, since no systematic research on speech acts has been conducted from the perspective of English legal texts up to now in China. It is safe to announce that the study not only has its theoretical significance, but also has its practical significance.
The Theoretical Significance
The English Legal Speech acts are a special variety of that in ordinary language, which are used to provide the human beings with obligations and rights.
The fact that legal speech acts constitute an indispensable part in legal language attracts more and more legal theorists and lawyers to the study of legal speech acts. Since language is considered as a system of the actual or potential speech acts, legal language can also be deemed as the actual or potential speech acts in the system of law. The research on legal language in China mainly focuses on the following aspects: the writing style and writing type of legal language, the words and syntax in legislative language, and 8 judicial language, grammar, and rhetoric as well as the model of judicial documents, etc.. Hu, 2005) However, in recent years, the focus of legal language has witnessed a shift to pragmatic aspects, and the importance of which lies in its use from the social and psychological perspective. The studies concerned indicate the syntactic and semantic features as well as the principles of legal language. However, the analysis of legal English from the pragmatic perspective still lingers behind other linguistic research, so the appropriate comprehension and the employment of legal speech acts are reasonably expected, which is one of the language competence of lawmakers and law practitioners.
The issue of the written or spoken language communication has a long and complex history in the science of law, involving a wide range of fields such as wills, deeds, indictment documents, legal provisions, judgments in a court and other legal documents. Therefore, theoretically speaking, the thesis may add a new aspect to the former research on legal language, and make a little contribution to the development and enrichment of the legal language study.
The practical significance The focuses of the study of the English legal speech acts is not on the phonetics, lexis, syntax, etc. but on the classification, the functions and the characteristics which is especially significant for legislation, the enforcement and the realization of legal documents because saying is sometimes equal to doing, and the final objective of legal texts is to motivate some action concerning law and regulations. With the resort to the speech act theory, the thesis works out the typical features of English legal speech acts, which are useful in identifying legal speech acts and translation.
A good master of English legal speech acts will be quite helpful for law workers to get a better understanding of English law from which they can learn a lot for their work.
Questions for Study
As mentioned previously, the overall aim of the thesis is to analyze the speech acts in English legal texts so that some characteristics and principles embodied in 9 English legal speech acts can be revealed. Thus, the present study raises the following questions: (1) Why does a speech act in legal texts? (2) By what means are the speech acts embodied in English legal texts? (3) What is the taxonomy of English legal speech acts? 4) What are the functions of English legal speech acts? (5) What the features does an English legal speech act possess? The answers to those questions can be found in the related chapters: Chapter Three will provide the answer to question (1), (2) and (3,); Chapter Four will answer question (4); and Chapter Five will give the answer to question (5).
The paper consists of six chapters. Chapter 1 gives a brief introduction to the present study, including an overview on the speech act theory, the present research states of the legal speech acts both at home and abroad, he significance of the study both theoretically and pragmatically, questions for study as well as the work frame. Chapter 2 is the conceptual demonstration, which may open up the possibility for analyzing and categorizing speech acts in English legal texts. In this part, the introduction to legal texts and the understanding of English legal texts go first. After the introduction, there comes the account of the classification of legal texts which plays a very important role in understanding the speech acts in each kind of text.
Chapter 3 focuses on the study of the speech acts in English legal texts, which is the key part of the present study. It deals with the speech-act verbs, the conventionalized devices of the embodiment of the speech acts in different English legal texts. In the end of this part, a relatively more detailed study on another categorization of legal speech acts is presented. Chapter 4 and chapter 5 mainly discuss the functions and the characteristics of the English legal speech acts. The final part presents the conclusion of the present study. It not only sums up 10 he whole study, indicating the theoretical and the practical significance of the present study, but also comes up with the limitations of the present investigation.
Chapter Two English Legal Texts
The difference between a discourse, an utterance and a text The notion of “a discourse” has brought about a very heated debate. It has become one of the most critical terms in the linguistic circle, so it is not surprising that its definition is contentious. A discourse is an instance of language use which can be divided into groups based on such factors as the grammatical and lexical choices and their distribution in a certain material.
It usually includes the communication in spoken, written, symbolic or multimedia form, which is not restricted to the abstract layer (e. g. , stylistics) or verbal (e. g. , gesture and visual) materials.? Up to now, it seems that “Utterance” does not have a precise linguistic definition. An utterance is a natural unit of speech bounded by a silence or a pause, which is a turn we call. Each turn of the speaker or the hearer may be regarded as an utterance. Generally, it mainly refers to the oral conversation.?
There is an assumption that a text is a unitary phenomenon and its concept can be thought self-identical, which may be undertaken for heuristic purposes. Halliday and Hasan hold that a text in linguistics means any passage spoken or written, which is unlimited by the length of the sentence. It is a sequence of paragraphs that represent an extended unit of speech. In terms of the length, an utterance seems to be the shortest one, and a discourse or a text is usually longer than a sentence, which encompasses not only a sentence but also one or several paragraphs.
It is enacted and implemented by the coercive force of a state for the purpose of maintaining a good social relationship and social order which is beneficial to the ruling class. As we know, a text is a sequence of paragraphs that represent an extended unit of speech, and legal language is a language variety of the common national language in legal context with a special function, so this type of writing is usually called a legal writing or a legal text. (Pan,1997:4) A legal text has the ability to distinguish itself from other texts, in that it is composed of legal words and expressions that are of distinguishing features.
Maley (1994) points out that language is a medium in various arenas of law in which legal texts perform the function of regulating the social behavior. He distinguishes three possible situations for a text: legislation, trial proceedings, and judicial judgments. He regards legislation as the largest and the most powerful source of law in a society and the most complex and esoteric form of legal texts. For the discourse features of legislative texts, he mentions about the cohesion devices which are potential to make a text precise, explicit, and certain.
He observes that repetition, rather than pronunciation is the preferred cohesive device in legislative drafting. Legal texts are unique for their linguistic stylization which is characterized by the arrangement of ideas, the concealing coordination, the well-knit structure, the necessary details and the appropriate omissions. (Pan, 1997:6) Such stylization of legal texts, which makes the connotation of legal provisions highly understood, is a necessary means to maintain the stateliness, the preciseness and the normalization of law.
On the other hand, the stylized texts can provide an explaining context for legal provisions, legal terms and some generalized words, reducing the possibility of misunderstanding legal provisions and the generalized words, and removing the law breaker’s attempt at taking advantage of the loopholes of law. (Zhang, 2000) In wording, legal texts must be not only exact and brief, but also normal. (Sun, 13 1997) The wording of legal texts must be applicable to the legal contexts, conforming to the legal standards, in which legal terms usually play quite an important role, since each term indicates a special legal concept.
The words in legal texts mainly include legal vocabularies which are usually the special terms for legal writings such as an order for attachment, an injunction, a cross examination etc. and the general vocabularies in the national common language. In addition, declarative sentences which are dead-pan are frequently used in legal provisions. (Pan,1997)
An Understanding of English Legal Texts
Legal language is a special branch in the field of language.
It has been more than two decades since scholars in many fields, especially in linguistics, psychology, anthropology, social psychology, and law began to study the relationship between language and law, which is known variously as forensic linguistics, discourse and law as well as law and communication. Law practitioners share a wide interest in the way that language works in a legal text which is concerned with the degree of the contextual comprehension to which the language influences or determines legal processes and their outcomes, instead of the description of the legal contextual communication.
There is no consensus among linguists and legal experts on the definition of the term “forensic linguistics”. What on earth should it be? Some people call it forensic linguistics, but others call it legal linguistics. Some adhere to a narrow definition such as using linguistic techniques to investigate crimes in which language data constitute part of the evidence, and others regard forensic linguistics as the study of the intersection between language and law.
In common-law-system countries, the adversary system and party control are adopted. A jury is a part of the court, and the cross-examination plays a very important role in a trial, moreover, the testimony affects the result highly, therefore, the relationship between language and the court testimony is centered on the study of the relationship between language and law, from which, the name “forensic linguistics” comes. (Song, 2007: 4) The term “forensic 14 linguistics” put forth by Colleen B.
Brennan in his work Linguistics and Law (released in September 2001) originally refers to the language evidence research, encompassing the following areas of study: the courtroom discourse, the court translation/interpretation, the cross-cultural communication facilitation, acoustic analysis of audio-recorded evidence, etc.. No matter what we call it: forensic linguistics or legal linguistics, Legal English should be deemed as an independent and complete subject for study, since a lot of differences exist between legal English and common English in words, meanings, terms and the sentence structure.
With a great deal of traditional surveys on legal English, we are able to generalize many linguistic features in terms of lexis, syntax and text, including its sentence structure and the arrangement of texts which are the exclusive characteristics that legal English possesses. At present, there are two kinds of understanding of legal English or English language of law: some eople hold that it only means the language of English (the Customary Language) used in common-law countries by lawyers, judges and other law workers, and others hold that it refers to any English materials concerned with the matters of law, and both oral and written materials are included. The latter which is related to all English materials is shared by the author of the thesis, and it will be the object of the study, i. e. , legal writings, legal documents or legal provisions in English (hereinafter referred to as “English legal texts”).
The Categorization of Legal Texts
As we know, every communication has its own intention which is quite obvious in written texts, such as to express oneself, to affect its hearers or readers, to express wishes or to present apology or gratefulness to others, so a good understanding of the text type is necessary. Sometimes, a misunderstanding of the text type will lead to much embarrassment and unhappiness in a conmmunication. In order to avoid such unnecessary trouble, categorizing texts is very important, which must meet the condition that the classification should be sufficiently generalized.
In addition, the 15 main functions of the each type must be taken into consideration. (Sarcevi, 1997) In this way, we can make a good identification of each text and realize its communicative purposes. From the perspective of the speech act theory, the text taxonomy and the text function are not in a relationship of one-to-one, since a text type sometimes performs several functions, and the same function is realized by different text types. The purpose or function of a text is approximately equal to the illocutionary acts in the triplasy of the speech act theory.
Once the communicative purpose is established, the related language and the text strategy should be used to realize it, which is equal to the illocutionary force. (Thomas 1995) There is almost no consensus on the functions of legal texts, but there is an agreement that legal texts should be classified into texts for a special purpose, which are called professional discourses by some scholars. ( Bhatia,1983) There are some classifications of the legal texts in the circle of linguistics and of ranslation: Germar (1995) classifies legal texts into the following three types: (1) law, regulations, court verdicts and international treaties; (2) contracts, wills etc. ; (3) law Science. (Sarcevic,1997: 17) Zhang categorizes legal texts into legal texts with the function of prescription, including law, codes and contracts as well as legal texts with the regulating or requesting function, including judicial decision, petition for review, abstract of record, reply brief, letter of request and court verdicts that are used in exercising judicial and administrative procedure.
In the thesis, the author tends to classify legal texts as follows: legislative texts including law, rules and regulations; judicial texts including indictments, bill of complaints, court verdicts, judgments, intermediation letters, subpoena, notices, notary letters, etc. ; and other legal texts, which include contracts, letters of certification, invitation for bids, applications, waivers, notices, and so on. Based on the framework in the preceding chapter, this chapter will further the study by analyzing the manifestation of legal speech acts in different legal settings.
As one of legal texts, legislative texts contain all law and regulations enacted 16 and implemented by the law-making bodies, such as the National People’s Congress (NPC. )of China or the Parliament in U. K. Besides some legislative guidelines and techniques that should be abided by, the text model in which the format is fixed must be applied in legal drafting, so that they can convey the real intention of law makers and the specific contents of law and regulations much exactly, and judicators and executors can understand and use law easily in the course of applying law.
Actually, like the Chinese legal texts, the English legal texts almost encompass descriptive words and prescriptive words. Generally, the legislative texts are structured in this pattern, i. e. , general rules go first, and then the provisions, which is placed in accordance with their importance. (Zhang, 2000) To some extent, briefness and readability are sometimes ignored to ensure the exactness and strictness in legislative texts. A lot of British law and regulations are composed of the same model.
For example, the sentence “Be it enacted…”, which is a kind of enacting/promulgation formula usually goes first, and then the specific contents of law are listed one by one. Therefore, such legal provisions are necessarily quite long, with the modifying parts, parenthesis, coordinate structure and appositives.
In China, a judicial text can be either narrowly defined or broadly defined. Narrowly speaking, it refers to a valid judicial text, which is made or issued by public security organs, procuratorates, courts and the bodies of administration and justice, coping with the civil, criminal and administrative cases.
While in its broad sense, it refers to a kind of valid judicial document used to handle court cases made by the state judicial bodies or such special authorized organizations as law firms, notary offices and arbitral courts. (Zhang, 2000: 397) Judicial texts such as the written instruments of appeal, written protests, petition for review etc. are characterized by their normalization and stateliness, so they must conform to the principles of standard language, complete contents and fixed format. Yu, 1999) Syntactically, long sentences featured by the closely-knit structure, coordinate 17 structure as well as complicated appositives are frequently employed in judicial texts, which can be assorted in accordance with different standards. It involves texts of justice, notary texts and arbitrary texts, etc. in terms of its making body. Special justice texts made by the state judicial organs for the purpose of performing their functions and general justice texts made by state organs, legal persons and natural persons are also legal texts.
Moreover, in common-law countries, bill of indictments, civil complaints, judgments, writ of summons and all notices such as subpoena, certificate of service etc. are included in judicial texts. But some judicial texts, like the interlocutory judgment, the interlocutory injunction, the statement of claim (a judicial document submitted by a plaintiff to the court to claim a sum of damages from the defendant) and the motion for a summary judgment (a formal application for a procedure by which the court decides a claim or a particular issue against claimant or defendant without trial. are exclusive in the Anglo-American law system countries.
Chapter Three The Speech Acts in Legal Texts
The conditions that a speech act must meet in legal texts According to Austin, if the speech acts, it must meet the following three conditions: first, the speaker must be in the condition of performing an act; second, the speaker must be sincere to the act he/she will perform; third, the speaker should not break his/her words. In addition, once such an expression is made by a person, it should be regarded as more than a speech. Austin gives four famous examples to illustrate speech acts. 1) I do. (In a wedding ceremony) In the society following the monogamy, only a single man can enjoy the right to say “I do” to a single woman in front of a pastor at a marriage ceremony. If a married man says so, then the so called marriage will be invalid. (2) I apologize to you. (When apologizing) The speaker must have sincerity for the apology. If a person speaks “I apologize to you. ” without any sincerity, such apology can not perform its real function, so at least, the hearer will not accept it from heart, and the apology is unsucsseful.
Here we can say that the speaker just abuses the sentence pattern of a speech act. (3) I name this ship Elizabeth. (When naming a ship) The person who names the ship should be of authority, and the place for the naming should be the assigned one, otherwise, this naming would be invalid. (4) I bet you six pence it will rain tomorrow. (In betting) The speaker should not break his/her words. As mentioned above, the speech act theory can be generalized as a sentence “to say is to do”, which means a specific behavior is conducted when a speaker speaks out a meaningful sentence in a proper context.
For example, if one says “Happy birthday! ” to somebody, he has performed the act of celebrating the birthday. And he can talk about the truth of his feelings only on the day which is the person’s birthday. Other wishes such as “good luck”, “congratulations”, “well done”, “thank you”, etc. are not proper on the occasion of a 19 birthday. Why those speeches can act? Because wishes or feelings are not propositions, and they are not of truth or falsity, instead, they are words with which to do things, which generate some impacts on the hearers.
If one says “congratulations! ” to his/her friends when he/she has realized a goal, he/she would say “thanks”as an immediate reaction to the speaker’s utterance, namely, the speaker’s words has affected the hearer, which may make him/her feel happy. Law is a set of behavior rules which are made and acknowledged by the state, with the reflection of the willingness of the ruling class. Legal language is the application of the common national language in the law enactment, the exercise and the research of legal science. Pan, 1997: 2) David Hume, an English philosopher, says that law originates from language and it is a pure language form. Legal language is a tool of expressing law,which can not be independent from ordinary language. (Sun, 2000) One of the main functions of law and regulations is to regulate the behaviors and the interpersonal relationship between each legal subject by the speech acts which are of legal force i. e. , the legal speech acts. Why speech acts in legal texts?
The following aspects can illustrate and answer this question: First, no matter in legislative texts or judicial texts, the speaker’s intention is to change the world, to fit the psychological world, or to direct/request/ask the hearers to change the world to fit his/her words. Second, the speakers of legal texts are those who are authorized to speak, and what they say are of legal force. For example: When sentencing a criminal, a punishment shall be meted out on the basis of the facts, nature and circumstances of the crime, the degree of harm done to society and the relevant provisions of the law. Article 61of the English version of Criminal Law of PRC. ) In this article, the speaker is the law maker, whose speech generates legal effects on a judge, which means that when sentencing a criminal, the judge must abide by this article; otherwise, the judgment would be invalid. Third, the speech in legal texts is featured by its stateliness and authority which works as a guideline on people’s behavior and thoughts. If a person violates law, 20 he/she would be punished by law.
For example: No unit or individual shall compel banks or other financial institutions or enterprises to provide warranties; banks and other financial institutions or enterprise shall be empowered to refuse to provide warranties. (Article 11of the English version of Guarantee Law of PRC. ) In accordance with this article, any units or individuals compel banks or other financial institutions to provide warranties shall be deemed to have violated the law, and shall bear the legal responsibility.
All in all, once the speech which reflects the specific provisions of law and regulations, and indicates the willingness of the ruling class, is made, it will produce impacts on the involved hearers, and change the world to some extent, namely, saying is doing. The fact that legal texts with the function of telling people what can be done and what can not has made a behavior model for citizens to follow. To be more specific, speech acts in legal texts present a process of measuring social behavior with systematic and language-presented social rules which are produced by entitled speakers or authors in accordance with certain procedures. . 2. The speech act verbs in legal texts In Austin’s first discovery of the phenomena of speech acts, he finds the typical speech act verbs such as “baptize”, “invest”, “dub”, “sentence” and so on. He calls other verbs merely describing the states of affaires “constatives”, and calls those utterances denoting real speech-act sentence “performatives”, since they indicate behavioring instead of verifyinging their truth or falsility. It is agreed that there is a certain asymmetry in the relationship between speech act verbs and speech acts.
First, not all speech acts are symbolized by a specific speech act verb, since they may be expressed in various ways. Various devices such as a normal verb in the imperative, a normal verb in the interrogative or even a circumlocution can be employed to express an order. For example: (1) I demand you to pass me the salt. (Ordering verb) 21 (2) Pass me the salt! (A normal verb in the imperative) (3) Can you pass me the salt? (A verb in the interrogative) (4) You will pass me the salt. A circumlocution) It seems quite natural to find expressions for the linguistic activity in legal texts among verbs, and to call those that are found to denote legal speech acts “legal speech act verbs”. Legal speech acts are embodied in different aspects, since legislative work and judicial work are concerned with various issues such as law and regulations, bill of indictments, civil complaints, judgments, writ of summons and all notices such as subpoena, certificate of service etc..
Usually, legal speech acts are represented by such legal speech act verbs as “issue”, “enact”, “command”, “repeal”, “entitle”, “amend”, “sentence”, “allow”, “promise”, “prohibit”, “certify”, “notify”, “agree”, “promulgate” and so on. According to Searle’s speech act theory, the majority of those verbs and the speech acts denoted by them, are directives, including commanding, entitling, allowing and prohibiting, some are declaratives (e. g. , issuing, abolishing, amending, sentencing, etc. ), and the others are commissive, which are mainly used in treaties and contracts.
Of course, not every speech act has a corresponding, custom-made speech act verb of its own. (Mey, 2003: 106-107) 3. 3. The conventionalized expressing devices of English legal speech acts Illocutionary acts producing legal effects are referred to as legal speech acts. (Sarcevic, 1997: 134) Legal texts are often objective and impersonal. Perhaps, someone would ask by what means the speech acts in legal texts are expressed. As is known to every one, “can/could”, “may/might”, “must”, “have to” “shall”, “should”, “would”, “ought”, “dare’, “need” etc. re the main modal verbs(also called modal auxiliaries)in ordinary English, helping the main verbs to construct a negative or an interrogative sentence or even to express the mood of a speaker. The combination of modal verbs and main verbs can express suggestions, requests, possibilities and willingness. Hence, it is reasonable to say that those modal verbs are the language 22 means of performing the functions mentioned above. In English legal texts, “shall”, “may”, “must”, “be to”, “can”, “should”, “ought to”, “have to” etc. re most frequently used in the texts of imposing obligations or entitling rights, which are the language expressing devices of English legal speech acts. However, the wide employment of “shall” in legal English is no longer a marker of future tense. Instead, it has been one of the conventional language devices in legal texts, which possesses a special connotation that obligation and duties should be borne by the parties involved, as used in statutes, contracts, and the like. The negative form “shall not” denotes a certain action which should be prohibited from performing. Trosborg, 1995) While the word “may” in legal English, a more formal language device, is frequently used to indicate powers, rights, or privileges that the parties have the liberty to enjoy, since they are entitled to make the alternatives to do or not. The texts related to rights conferred on the public is apt to be construed by the courts as a duty, so the word “may” should be followed by such phrase as “at his discretion”, unless “may” has been expressly defined as being only permissive.
And the negative form “may not” is also commonly employed to express the fact that the right, privilege or power is abridged. “Should” ordinarily implies no more than an obligation of propriety or expediency or a moral obligation other than legal obligations and duties, the mood of which is weaker than “ought to” and much weaker than “must” or “have to”. While, legal articles with the word “may” belong to provisions of authorization, which stipulate that certain actions are authorized to be exercised in accordance with law.
These provisions symbolize certain rights bestowed by law to citizens and groups, so they have the liberty to enjoy or give up such rights. Certain action, which is provided legally, may be done, but it seems to simultaneously carry the implication that something else may not be done, since the stress lies in the admissibility of such action.
The Speech Acts in Legislative Texts
This chapter will concentrate on the speech acts in the English legislative texts Apart from representing a type of cultural knowledge, law reflects an important morality.
Therefore, law can be understood as two things: one is the system of knowledge and the other is the system of action. Legislation is a process of enacting, amending and abolishing law and regulations by law making bodies in accordance with the legislative guidelines and themes,with the assistance of legislative technique, such as the logical structure of law and regulations and wording. Since the logical structure is reflected by language, the language use is quite important. Legislative provisions are solemn and authoritative, so once law and regulations are enacted and issued, it will produce legal force.
Why it can be so? It is because of the speech acts in legal texts, one of the outstanding pragmatic features of legislative texts written or spoken, which accounts for a large proposition. As mentioned above, speech acts in legislative texts are represented by such speech act verbs as “issue”, “enact”, “formulate”, “command”, “repeal”, “entit”, “amend”, etc.. This section mainly focuses on the analysis of typical speech acts in English legislative texts both at home and abroad.
If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.? (Rule 606 of Federal Rules of Evidence (2004)) (6) The election must be made within three months after the accident occurs or, if the accident results in death, within three months after the date of death… (Sect. 20 of Workplace Safety and Insurance Act of Canada, 1997) From the examples above, we can find that in legislative provisions, the modal verb “shall” is the most frequently used, which is usually employed to express obligations.
In other words, the word “shall” represents the duty that readers or hearers must bear, and the negative form “shall not” normally implies that the acts the readers or hearers are prohibited from performing. In addition, the words “must” and “should” are also frequently used in legislative texts. But there are still some differences existing between “shall”, “must”and “should”. (Zhang, 2000: 373-376) “Shall” is used in a general stress, indicating that the hearer or reader has the obligation to perform an act.
Summing up, according to the speech act theory, once a set of law is issued by the authorized person, i. e. , the law makers, it will come into effect immediately, which means that the hearers or readers must abide by all legal provisions in the social life, and otherwise, they would get punishment from law and regulations.
The speech acts in judicial texts Judicial texts are usually made by public security organs, procuratorates, people’s courts and other non-litigation organs. Speech acts are particularly popular in judicial texts.
The sentence “I sentence x to five years in prison” is a typical one. In which as we have discussed, a judicial text includes indictments, bill of complaints, court verdicts, judgments, intermediation letters, subpoena, and notices, etc.. The author of the thesis decides to discuss the speech acts manifested in some of them. In order to illustrate the speech acts in judicial texts, examples are presented as follows: (1) Judge: The jury will now retire to deliberate. ? Jury Foreman: [standing] Your Honor. I don’t think we need to retire. Cirroc’s words are just as true now as they were in his time.
Consequently, we vacate the order of the district court and remand this matter for additional proceedings consistent with this opinion. ? (10)We, the jury, in the above-entitled action, further find the special circumstances that the defendant, Orethal, James Simpson, has in this case been convicted of at least one crime of murder of the first or second degree to be not true. (Ge, 2002:192) In the examples above, the speech act verbs are clearly present, which are the symbols of the speech acts in judicial texts. It is quite easy to find the common speech act verbs used in judicial texts.
In fact, what the judge declares, are the acts he/she performes, which will come into force immediately, i. e. , he/she is performing the acts of clarifying, concluding, remanding and vacating, while speaking. Similarly, the actions of notarizing, complaining, awarding are also performed when the authorized speaker utters the related sentences. In addition, such words as overruling (e. g. , overruling someone’s claim), receiving (e. g. , receiving a petition), sustaining (e. g. , sustaining an applicant in his / her claim; sustain an objection), motioning (e. g. motioning for a direct verdict) and dismissing (e. g. , dismissing a/an appeal/case/charge/proceedings) frequently appear in judicial texts, which can also typically represent legal speech acts. 3. 6. The speech acts in other legal texts With the reform and opening to the outside world, China has established economic and trade relationship with more and more countries, including some English speaking countries. Therefore, the types of legal documents related to the international trade and economy are increasingly various, in which the manifestation of the speech acts is quite obvious.
Examples are as follows: (1) In accordance with the above captioned letter of credit requirements, we hereby certify that the above captioned shipment was duly inspected by American buildings company quality control personnel prior to shipment… (Song, 1997:175) (2) It is hereby understood and agreed that research involving human subjects shall not be conducted under this contract, and that no material developed, modified, or delivered by or to the Government under this contract, or any subsequent modification of such material, will be used by the Contractor or made available by the Contractor for use by anyone other than the Government, for experimental or therapeutic use involving humans without the prior written approval of the Contracting Officer…?
The classification of the speech acts in English legal texts The purpose of the previous survey of speech acts in different legal settings in the preceding chapter is to lay a foundation for the present study of the taxonomy of the speech acts as embodies in English legal texts. Legal speech acts are absolutely different from those used in everyday English discourses in that they produce legal force. Since the typical performative verbs in different legal settings are not of the same function, it is necessary to categorize the speech acts in legal texts. As discussed previously, there are a few classifications, of which, Habermas (1981) improves his classification as regulatives, expressives and constatives. His categorization has taken the distinction between the legal speech acts and the common speech acts into consideration, generalizing all the legal speech acts into the category of regulatives.
Legal speech acts are generally regulatives with the function of regulating people’s social behavior, and telling people what is permitted and what is prohibited. In order to understand the classification, a comparative table is presented below: Austin verdictives exercitives acts commisives expositives behabitives expressives directives declarations constatives legal speech commisives expressives Searle representatives Habermas legal regulatives speech acts Table 2: a comparison of the classification of speech acts by former scholars From the table, we can see the taxonomy of each scholar has its own features, and each category has been improved based on the former.
To some extent, the classification of legal speech acts is largely determined by the nature of the typical speech act verbs as well as their functions in a legal text, according to which, the 31 author tends to present the following categorization of legal speech acts which is mainly based on the classifications of the preceding scholars, containing regulatives, declarations, behabitives, verdictives, directives and requestives. 3. 7. 1. Regulatives Regulatives are mainly manifested in legislative texts and contracts. They are mainly characterized by the use of such modal auxiliaries as “shall/shall not”, “may/may not”, “will”, “must” and “can” which perform the functions of offering advice (ought to, should), making promises or threats (will) and commanding (must).
With the assistance of modal auxiliaries, the performative verbs in legal texts not only impose obligations, but also confer rights on the involved readers or hearers. By means of modal auxiliaries, regulatives usually tell citizens what rights they enjoy and what obligations they have to fulfill, therefore, the social behavior criteria are established in people’s mind, which direct people’s behavior and morality construction. As discussed in Chapter 2, “shall” after the first person in legal English no longer represents the future tense; instead, it provides the readers or hearers with obligations. With the assistance of the modal auxiliaries “may” and “can”, regulatives in legal texts mainly symbolize a power, benefit, right or privilege the parties involved can enjoy.
Examples with “shall/shall not” (1) Every driver, pedestrian or other road user shall conduct himself in such a way as not to endanger or obstruct traffic; he shall avoid all behavior that might cause damage to persons, or public or private property. (Article 7 of Rules of the Road of Convention on road Traffic) (2) The organizers shall allocate the space in accordance with the nature of exhibits or in any manner they may deem fit.? (3) Vehicles and animals shall not be left waiting where they are likely to cause danger or obstruction, and in particular at or near a road intersection, a bend or the top of a hill. ? http://www. cbia. com. cn/english/zhanlanhui/Form. pdf,2007-9-28. 32 Article 13 of Rules of the Road of Convention on road Traffic) Examples with “May” or “can” (4) The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. (Rule 614, Federal Rules of Evidence (2004)) (5) The joint venture company may obtain loans from both home and abroad to cover the gap between registered capital and total amount of investment and to provide circulating funds.? (6)
The plaintiff can relinquish or modify his or her claims. The defendant can admit or refute the claims and shall have the right to file counterclaims.? (Article 52 of The Civil Procedure Law of PRC. The first three examples actually provide the citizens or the parties involved in a contract with obligations, that is, the citizens and the party must resume the obligations of action and non-action, and they can not perform an action at their pleasure. The last three examples just confer the rights to the citizens or the parties, telling them that they can also enjoy some rights when assuming obligations, which means that they have the liberty of exercising the action or the omission of it. The performative verbs with the assistance of modal auxiliaries in legal texts can not only control but regulate people’s behavior so as to help maintain the social order well. 3. 7. . Declarations The category of declarations can change the world directly, for which the sentence “I declare you to be husband and wife” is the best example, because traditionally, after the minister declares the fact, the relationship between the bridegroom and the bride is immediately changed, i. e. , from lovers to husband-andwife. In pragmatics, the speaker who makes the declaration must be the one who is qualified. Similarly, speakers of the declarations in legal texts are those authoritative people such as judges, arbitrators, greffiers, etc.. What they declare are what acts they are performing, which would change the present situation.
So this utterance means two possibilities to the accused: one is that he is a criminal; the other is that he is a common citizen, enjoying all the rights given to him. Similarly, example (4) is an utterance terminating the employee’s relationship with the firm. Declarations represent the opinions of the authority, for example, the decision announced by the judge represents the collective opinions of the judicial committee, and the dismissal announcer is on behalf of the board of directors. The typical performative verbs used to express legal speech acts of the declarative type are “sentence”, “declare”, “announce”, “promulgate”, “dismiss”, “entrust”, “enact”, “issue”, “entitle”, etc…
After a survey, it is easy to find that Austin’s behabitives mainly cover the phrases expressing emotions to the interlocutor of the conversation. In his book, he does not give a detailed analysis of this group, which he finds most troublesome, because he holds that behabitives and his expositives are not clear and they are cross-classified. To some extent, some of the speech acts in legal texts, especially in judicial texts and other texts related to business can also be regarded as behabitives, as long as the performative verbs can express the speaker’s attitude towards something. Simply speaking, it means that the speaker’s utterance shows his/her attitudes besides the emotions towards something.
Examples are as follows: (1) The Recipient agrees to expend an amount not less than of the total activity costs. (A Sample Award Format and Schedule)? (2) The (party) accepts your offer to settle dated. (Song, 1997: 861) (3) I, for myself, my heirs, personal representatives or assigns, do hereby release, waive, discharge, and covenant not to sue the Regents of the University of California, its officers, employees, and agents from liability from any and all claims resulting impersonal injury, accidents or illnesses (including death), and property loss arising from, but not limited to, participation in Activity. ?
Behabitives are actually the reaction to other people’s opinions, behavior and fortune or the attitudes towards someone’s past conduct or imminent conduct. While, the legal settings above representing speech acts of the behabitive type have displayed the speakers’ attitudes, positions or reactions to the some specific conditions, facts or offers given by others. In this type, both stating and description are employed to express the speaker’s real thoughts. Moreover, such statements as “objection to the form, your Honor. ” and “objection, your Honor. ” are usually uttered by lawyers at a ? ? http://www. usaid. gov/policy/ads/300/303saa. pdf,2007-9-29. http://ls. berkeley. edu/dept/anth/forms/WaiverRequiredActivities. df,2007-9-29. 35 court, which bespeaks their attitudes towards the testimony of the witness or the defense words of their counterparts.
Verdictives According to Austin (1962), verdictives are usually typified by the delivering of a verdict made by a jury, an arbitrator, or an umpire. But they are not necessarily the final decision; on the other hand, they may be, for instance, an estimate, a reckoning, or an appraisal. Here are some examples for “verdictives” in judicial texts. (1) The tribunal finds that, in the circumstances of the case, the Buyer has complied with the above-mentioned requirements of the Vienna Convention. (Song, 1997:776) 2) The court, being fully advised of the premises finds…That one child (NIGEL JONES, age 4, born 3-8-97) was born to the parties; no children were adopted by the parties; and that Respondent is not now pregnant.? (3)For the foregoing reasons, the panel decides that the complaint has failed to establish the domain name registered by respondent is identical to a trade mark in which the complaint has rights. Accordingly, the complaint in this matter must be dismissed. ? Verdictives in judicial texts mainly refer to an official or unofficial finding upon evidence or reasons which are made based on the combination of the given facts and the related rules, by the person in power. They are obviously connected with truth and falsity or fairness and unfairness.
To some extent, falsity and unfairness in judicial acts are unavoidable since they are decided according to the subjective will of the authorized person, although the fairness and justice are the first important guidelines in judicial acts. (Austin, 2002: 153) 3. 7. 5. Directives What directives in legal texts embody is the speaker’s effort to get the hearer to do something as requested. This type of legal speech-act director commands the hearer to perform an act for the speaker’s goal (mostly), which will make the world fit ? ? http://www. divorce-lawyers-chicago. com/sample_judgment_of_dissolution. php,2007-10-3. It is selected from the decision of a famous case named “ajanta-phama. om”. 36 the speaker’s words, i. e. , the world is adapted to the speaker’s utterance. According to Mey (2001), imperatives, at least the intention of the speaker would change the world since they make something happen to satisfy the speaker’s wishes. Such words as “urge”, “command”, “order”, “instruct”, “suggest”, “request”, “advise”, “demand”, “require” and the like, usually appear in legal texts. Examples: (1) You are hereby summoned and required to appear on the17th day of july, 1994, at 9 o’clock A. M. at NAS Pensacola…? (2) Take notice that this action has been commenced against you by the plaintiff(s) for the claim (s) set out in this writ.
If you intend to defend this action or if you have a set off or counterclaim which you wish to have taken into account at the trial, you must give notice of your intention by filing a form entitled “Appearance” and you must also deliver a copy of the “Appearance” to the plaintiff’s address for delivery, which is set out in this writ. (From a writ of summons) (Ge, 2002: 151) The imperative sentence structure is frequently employed in speech acts of the directive type, which is the typical form to express an order. The writ of summons has a function of directing the defendant to pay attention to the action that has been sent out, and commanding what the defendant must do in face of this action.
Besides appearing in legislative texts, contract texts, the modal auxiliaries are also used in judicial texts. In the examples above, the modal verb “must” is used to very well illustrate the fixed relationship between the court and the defendant. To be more specific, it is only the court that has the right to order or command the defendant to be present in the court. In addition, such phrases as “Call your next witness. ”, “As jurors you are not to be swayed by sympathy. ”, “Keep your voice up. ”, “I direct the jury to disregard the statement that…” etc. are usually used in the trial process. ? http://www. tpub. com/content/administration/14135/css/14135_176. htm. 2007-9-11.
This is a subpoena to a party of a case, requiring the hearer to appear in a court. To some extent, what the party is required to do will make the world fit the word.
In legal texts, especially the records of the conversation among a judge, the lawyers and the clients in a court, it is easy to find that the speakers intend to ask hearers for information, requesting hearers to perform an act so that they make the words fit the world. This type of request for information has been named Rogatives by Leech (1983). According to Leech, it is the hearer, instead of the questioner, who provides an answer to make the words fit the world.
Lexically speaking, the word “rogative” is the suffix of the word “interrogative”, which is closely related to questioning, but in fact, it is also used to ask the hearer to do something, so the author of the thesis holds that the word “requetive” is better than rogative to denote this kind of speech acts, although it is realized by means of inquiry. Requestives can be subdivided into request as commands, request for information and request for permission. (1) Request as commands
- Can you tell the jury …
- Could you briefly describe …?
- Could you describe the appearance of (a package, etc. )?
- May I have it
- Will the defendant please rise?
- Will the prospective jurors please stand?
- Will the people in the well of the courtroom please stand?
The utterances above are probably given by a lawyer or a judge, and the sentence structure of which is like the typical indirect speech act sentence “can you pass me the salt? Indeed, in those requests, a “yes/no” answer is not the necessary one; instead, the hearers are just required to perform an act according to the questioners’ wishes. For example, for the sentence “Could you please briefly describe…? ” the grammatically right answer should be “yes/no”, which can not be the real solution to ? http://www. nvsupremecourt. us/ccp/interpreters/commonPhrases. php,2007-9-25. 38 this request. While what it requires the hearer to do actually is to describe…briefly. In other words, the hearer must answer the question by means of performing an act. (2) Request for permission
- Could I have a brief voir dire?
- Could we have a sidebar?
- May I approach the bench?May I beg the court’s indulgence for a moment?
May I publish these (photographs, etc. ) to the jury? In this type, “yes/no” is the proper answer, which means that the speaker can perform the act he/she wishes to only on the condition that the hearer gives permission, otherwise, what the speaker wants to do is invalid.
Request for Information
- Have you been threatened or coerced into pleading guilty?
- How much schooling have you had?
- How do you plead to the charge contained in count?
- What is People’s exhibit number (one, etc. ) for identification?
- What were the lighting conditions (at that intersection, in the store, etc. )?
Request for information in legal texts is characterized by interrogative sentence structure, including special interrogatives and general interrogatives. The objects of the request in a court are usually the plaintiff, the defendant as well as the witness. With the assistance of the information provided by them, the lawyers, the judge and the jury would get some hint for the given cases. The way to ask questions is very important, since it will determine how much useful information they can get. Additionally, indictments, application letters can also be included in requestives. For example: (1) Wherefore, plaintiff respectfully prays that this Court: a. Assume jurisdiction of this case; 39 b.
Award actual damages to be established at trial pursuant to 15 U. S. C. §1640(a) (1) …? (2) I/We request that you establish by mail (cable) an irrevocable letter of credit (Song, 1997: 438) From the examples of this category above, we can see that requestivies appear not only in the trial records but also in the other judicial texts such as complaints, and application letters which are related to business. 3. 7. 7. Summary The bounds among the categories are not quite clear, i. e. , the classification is not absolute, because there seems to be some intersects between some groups, such as the fact that virdictives bear the same features with behabitives to some extent.
Let’s take the word “blame” for example, it is equal to the phrase “hold responsible to” in one sense, which can be regarded as a verdictive, but in another sense it means adopting an attitude towards a person and is thus a behabitive. Additionally, directives and requestives are also cross-classified. For instance, the sentence “Will the defendant please rise? ” which is a typical one in the request as commands of the category of requestives can also be regarded as a directive in terms of its function. No doubt, the defendant must rise without any hesitation after hearing it, since the sentence above is an indirect order.
It is acknowledged that the purposes of legislation are to establish and confirm various legal relationships among all walks of life in the society. Such social purposes require the assistance of peculiar style of the forensic language in that the precise understanding of legal texts plays a very important role in people’s legal life. Legal documents usually perform the function of specifying the obligations and rights of the parties concerned, so both rights and obligations should be interpreted exactly so as to leave no opportunity for misinterpretation of provisions as set out therein. In legal writings, accuracy is quite important, so lawmakers even all legal text writers must ? http://www. consumerlaw. org/publications/manuals/content/samples/M7til_809-811. pdf,2007-9-27. 40 ay much more attention to the precise wording of legal texts than anyone else, since there are always the man exploiting an advantage or looking for loopholes of the legal texts in order to avoid the liability for his violation of law. There are such people in the society as a disappointed heir who wants the will to be read in a way which is beneficial to himself/herself but violates the testator’s real intention, a criminal defendant who wants the statute interpreted so as not to cover his act, and others who want to twist the meaning of words for their own interest. (West Law: 1961) In other words, the articles and provisions in legal documents should be expressed accurately and explicitly so that nothing can be distorted and taken advantage of by users, therefore, legal language should not provide any chance for ambiguity and misunderstanding.
Based on the arguments above, we can arrive at the conclusion that the simple-minded grammatical assumption on the one-to-one relationship between the syntactic form of a sentence and its function is challenged by the phenomena of indirect speech acts. The fact that non-conventional speech acts are much complicated and uncertain is stated in the speech act theory, so the interpretation of its utterance largely depends on the cultural background, the common knowledge and the context shared by a speaker and a hearer. Sometimes, the differences in educational background, basic knowledge and the knowledge of contexts between the parties involved in a conversation are apt to cause inconsistency between the speaker’s illocutionary force (i. e. the speaker’s intention) and the hearer’s interpretation to such intention, so the contextual effects of indirect speech acts can not be easily reached. Indirect speech acts exist everywhere in everyday language, but it is almost absent in legal texts, because an attempt to draft or interpret law in an indirect way can not meet the requirement of preciseness of legal language, in which no ambiguity or colloquialism is permitted, otherwise it will be quite dangerous and problematic. To some extent, the absence of indirect speech acts can work as a guideline in the legal drafting and the construction of law, which can be certified by a saying that opposing itself to the inherent vagueness of language, and the legal document makes many attempts to the precision of expression. (Boston, 1970)
Chapter Four The Functions of the Speech Acts in Legal Texts According to Zhang (2000), only the speech acts that are of legal effects can be deemed as legal speech acts, which have the main function of regulating. Since the main purpose of legal documents is to confer rights and impose obligations, they are often objective, just and impersonal. No matter in legislative texts judicial texts or other legal texts in relation to trade and economy, speech acts indeed provide citizens or parties concerned in some specific legal activities with an instruction on a motivation choosing for a satisfaction, and expressly tell people what can be done and what can not, providing the said behavior with guarantee.
It is generally acknowledged that in legislative texts, law and regulations are classified into three types in terms of their contents and nature: Law and regulations instructing what people may do falls into authorizing one; those stating what people must do, obligatory one; and those people must not do, restrictive or prohibitive one.
The means by which a speech act performs the functions in legal texts, Speech acts are verbal acts happening in the world. In many cases, an utterance can be regarded as doing things with words, i. e. , performing an act that brings about a change to the existing states of affairs. (Mey, 2001: 95) For instance, if an authorized person says “I declare this bridge to be opened. ” in a proper situation, this utterance will change the states of affairs in the world regarding the said bridge, because the earlier not-yet-opened bridge now becomes an opened one.
Like the speech acts in ordinary English, legal speech acts are the manifestation of the empowered speaker’s intention in a specific legal activity. The speech acts in legal texts are concerned with three aspects of a speech, namely, locutionary force, illocutuinary force and perlocutionary force, which are the most interesting aspects of a speech. Locutionary aspects are simply the activities we engage in when we say 42 something, for example, if a plaintiff and a defendant are quarrelling with each other at a court, the judge will say “it’s noisy here” (sometimes). ? Under a usual circumstance, this utterance is only making a statement or complaining about the situation instead of a wish, a promise, a threat or a judgment.
But to study this sentence in depth, we will find that there is the illocutionary force behind this sentence, namely, the parties involved are required to stop quarrelling, so at the moment, the two parties must stop quarrelling; otherwise, they would be punished. In a word, only on the condition that the hearers understand this illocutionary force, can the perlocutionary force be achieved. As for some formal legal texts such as judicial texts, legislative texts or other legal texts in relation to trade and economy, the functions of speech acts are realized under the felicitous conditions. For example: I sentence x life imprisonment (A judicial text) As explained previously, this is a speech act of verdictives.
Then, what kind of conditions it has to meet to make this a valid verdict? First, the person pronouncing these words actually has the power to do so; second, the right circumstance for the uttering must be necessary, so it won’t work to utter those words in a bus. The felicitous condition in this particular case should be: on the one hand, the speaker must be a judge, who has been given the power to produce such an official utterance and somebody must have committed a crime. As a judge, the speaker has to determine what kind of punishment the criminal should receive before all the people present at the court, otherwise, the would-be speech act will misfire.
Another example: A health and safety representative or designated committee member representing workers at a workplace is entitled to be present at the beginning of testing conducted with respect to industrial hygiene at the workplace if … (Article 11(3) of Section 10 of the Occupational Health and Safety Act of Canada) This is a legislative text of the declaration type. Similarly, the speech act is “Oyez” is the popular phrase used in a court by a judge at the beginning of the court session. 43 realized through the felicitous condition, i. e. , both a right circumstance and an authorized person are indispensable. In other words, the legal provision above can be valid only on the condition that it is pronounced by the representative of lawmakers at the senate in English speaking countries, and by the president in China.
In legal texts, especially legislative texts, there are always some provisions permitting or empowering somebody to perform a certain act, that is, the permitted or empowered person can enjoy the right to decide whether to perform the said act or not. Actually, those rights are only a possibility for the empowered person to conduct a behavior, and that whether this possibility can become a reality depends on the fact that whether the concerned person has a subjective motivation to do so. If one chooses not to perform such an act, he/she would not be enforced to do it, and would not be punished by law, because citizens have the freedom of enjoying or waiving rights.
In legislative provisions, the conferred rights are in the light of all citizens, while in judicial texts or other legal texts such as a contract, they only direct against a special party. In a judgment, for example, only the clients of a lawsuit can enjoy the rights empowered by law. For this type, as mentioned previously, the combination of performative verbs and modal auxiliary “may” as well as some other performative verbs without modal verbs are frequently adopted. Legal settings concerning authorizing rights provide a good social order for the satisfaction of people’s needs, which can stimulate and activate people’s enthusiasm, because they endow people with freedom of choice.
With the function of conferring rights, legal texts provide people with a behavior modal, i. e. , what the people may do or may not do, and make the people quite clear about their rights. And once their rights are infringed on, they may resort to law to get a just and fair solution to the problem. 4. 1. 3. Imposing obligations Opposing to provisions conferring rights, obligatory provisions are another outstanding feature of legal texts. As we know, obligations include the obligation of 44 action and that of non-action, namely, in some circumstances, the citizens bear the obligation of doing the said thing, but sometimes, they should fulfill the obligation of not doing the said thing.
Speech acts with this function in legal texts provide a hearer with no opportunity to decide whether to do or not, because they are compulsory to the reader or hearer. Obligatory legal texts make people understand what obligations they will bear. Once they fail to follow the given obligations, they will be punished by law. Similar to the provisions conferring rights, obligatory provisions in legal texts direct against all citizens, but only against the parties involved in a special legal texts such as a judgment document or a contract.
What object legal settings point to is the human beings’ behavior. Traditionally, the speech acts in legal texts perform a function of regulating people’s behavior so as to keep the society in a good order.
Specifically speaking, legal speech acts, which create a good social environment for the human beings’ basic satisfaction can restrict people’s undesirable behavior on the one hand, and develop people’s cooperation on the other hand, As discussed previously, legal texts provide people with some behavior models, guiding them what can be done and what can not, authorizing them to perform actions in this way or that, coercing them to do or not to do things. Once a person violates what has been prescribed, what he has done must be regulated by law through a punishment. With the function of regulating, the subjective motivation of people’s behavior will be controlled, and their bad behavior would be changed into a good one.
For example, the terms of a contract can well regulate the behavior of the two parties involved in, i. e. , they must perform the acts conforming to the conditions of the said contract; otherwise, a contract breach will arise. Similarly, in judicial texts, for instance, a defendant will learn much from a judgment, at least, he/she would learn that he/she must change the wrong way into a proper one to deal with the events, therefore, from this perspective, speech acts in legal texts play a role of regulating one’s behavior. With the regulating function of the legal speech acts, people will try to seek for a proper motivation and behavior model for his/her basic needs in order to 45 void unnecessary misconduct.
Legal speech acts can not change people’s basic needs, but can change the motivation and means employed in people’s social behavior. As the main manner of manifestation of legal texts, speech acts realize the social effects by means of acknowledging the behavior beneficial to the society and prohibiting the harmful behavior to the society. Leon points out that one’s behavior norm is a set of rules in social life, which enforces the individuals to conform to and prohibits them from doing the behavior harmful to the social order.
Chapter Five The Characteristics of the Speech Acts in English Legal Texts
It is generally acknowledged that speech acts are typically characterized by such factors as speech act verbs, present tense, the first person, active voice and declarative mood. The sentence “I order you to shut the door. ” is a typical speech act, which includes all the factors mentioned above. It is unnecessary that all speech acts possess the features above. For instance: “you may have a rest today” can also be changed as “I permit you to have a rest today. ”; “stop quarrelling! ” can be changed as “I order you to stop quarrelling. ”, and similarly, the sentence “you are dismissed” is equal to “I declare to dismiss you. ”. Therefore, the factors including the person and the voice are not absolutely necessary in judging whether an utterance is a performative one or not.
Since performatives have been divided into explicit performatives and implicit performatives by Austin, one could say that the “explicit performatives” are the most extreme cases of speech acts, in that they can perform and necessarily perform a certain action. After a survey of speech acts in legal texts, legal speech acts share many features with common speech acts, i. e. , speech act verbs, present tense, the first person, active voice and declarative mood. In order to have a clear understanding of the characteristics of legal speech acts, a table is presented as follows: The relationship Speech act between words and types world The third person + modal the world will fit the Regulatives speaker’s words auxiliary
Cite this The Speech Acts in English Legal Texts
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