Grammar in the Law JAN CHOVANEC Legal language is seen as a specialized register, that is, a functionally differentiated variety of language used in certain professional contexts. As such, it can be described in terms of its conventional lexicogrammatical features. Yet, it is difficult to generalize its salient linguistic characteristics because the concept of “legal language” covers a very broad range of different, though related, legal discourses. The written language of legal documents may perhaps be seen as the most representative form, possibly followed by written or spoken judicial decisions that make up case law. Significantly, however, there are other genres, such as the spoken discourses of courtroom interaction, legal consultation, and police interrogation. In all these contexts language is used in characteristic ways, and the typical lexicogrammatical features of one discourse type will not necessarily overlap with those of another. Nevertheless, despite this degree of contextual diversity, these particular legal discourses will be described here with respect to their typical grammatical features— features that may contribute to the general perception of “legal language” as complex and unintelligible. This description will be followed by an account of the trend toward the simplification of legal language at the level of syntax, which has, over the past few decades, increasingly affected the ways in which legal documents have been drafted. Grammar, however, has yet another role in the law: it can be the actual bone of contention in disputes over the interpretation of complex legal language and, importantly, also as forensic evidence. In the latter case, linguists are called upon to analyze textual evidence and seek any departures from expected norms—at the grammatical and other levels—in an effort to establish idiosyncratic styles and identify the authors of disputed texts.
Grammar in Written Legal Discourses The language of the law has traditionally been described as having a tendency to be “wordy,” “unclear,” “pompous,” and “dull” (Melinkoff, 1963, p. 24). Indeed, the “convoluted” syntax of written legal texts is among the characteristic markers of this register: it plays an almost ritual role in identifying it (see Coulthard & Johnson, 2007, p. 37). The addressees of legal texts are not only those who are bound by them (legal subjects) but also legal professionals, such as judges, who may be called upon to interpret a given text with respect to the intertextual framework of other legal texts. Written legal texts depart from everyday language in various respects. Owing to the different circumstances under which they are produced and received, legal texts should not be viewed through the prisms of discourse norms of other genres (be they spoken or written). Legal drafters write highly formulaic, noncreative texts that are impersonal and devoid of any originality, often with entire sections directly copied from other documents or form books. After careful planning, they remove any linguistic redundancies that are so typical of everyday language and that generally help to make a text easier to process. On the receiving end, written legal texts are not assumed to be understood after a single reading—either by lay readers or legal professionals. Some texts, such as legislation, are to be engaged with repeatedly, that is, reread, scrutinized, and eventually interpreted. The process of interpretation of legislative rules—which are purposely general and all-inclusive The Encyclopedia of Applied Linguistics, Edited by Carol A. Chapelle. © 2013 Blackwell Publishing Ltd. Published 2013 by Blackwell Publishing Ltd. DOI: 10.1002/9781405198431.wbeal0482
2
grammar in the law
—consists in their application to the details of a particular case. This means engaging in the highly contextualized practice of identifying similarities and differences between a given situation and legal rules, that is, finding whether the particular details are in harmony with or in violation of the law. Although specialized registers typically do not have distinct grammars (Gibbons, 2003, p. 55), the grammar of legal language—especially that found in operative documents—does differ in many respects from everyday language. There is a marked preference for impersonal constructions, passives with deleted agents, nominalizations, and complex nominal phrases. Other salient grammatical phenomena include specific cohesive means, modal verbs, sentence complexity, grammatical coordination (between clausal, adverbial, nominal, and other elements), nominalized expressions (with the necessary implication of a high degree of lexical density), logical structure, and syntactic discontinuities.
Cohesion In general, written legal texts such as legislation and contracts prefer extreme explicitness. For the sake of precision and unambiguity, pronominalization tends to be avoided, as is the use of synonyms (except in coordinated binominals). While the former might create ambiguities, the latter might imply non-equivalence and hence the existence of two (or more) independent concepts. Instead, legal texts will reuse the same lexical item because such consistency meets the requirement for accuracy of legal language. Cohesion is thus marked by the preference for one particular means of lexical cohesion, namely repetition, at the expense of pronominalization and substitution. In non-legal contexts, a similar degree of lexical repetition would be seen as excessive and redundant. In fact, it is precisely the over-explicit repetitiveness that may contribute to the stereotypical perception of legal texts as unnatural and “wordy.” Clearly, this indicates that legal texts are wrongly judged when evaluated by the discourse norms of other genres. Yet legal texts in English rely heavily on another system of achieving cohesion: the use of complex adverbs of the herein-type, which are rarely found in other registers or in everyday language. These adverbs are composed of two elements, whose meaning is compositional: the pronoun here or there and one or two relevant prepositions. The order of these elements is opposite to the corresponding prepositional phrases: for example herewith = with this document, thereinbefore = coming earlier in that document. While adverbs with here- refer endophorically to the actual text (or a particular segment of the text) in which they are used, adverbs with there- refer exophorically to other texts, illustrating the intertextuality of written legal discourses. Although these complex adverbs may occasionally lead to notorious ambiguities in interpretation (e.g., hereunder—under this document, or under this section of the document?), they are, all in all, a very efficient means of constructing cohesion and achieving crossreferencing in legal texts. By allowing for condensation at the phrasal level, they enable the drafter to omit information that is, in most cases, irrelevant or obvious. As a result, the information load (and the lexical density) of the sentence is reduced. Thanks to their universality, such adverbs also enhance the formulaic character of legal texts in which the equivalent prepositional phrases would have to be much more specific and tied to the local verbal context. In other words, these complex adverbs make it possible for the author to avoid the specification of details whenever the texts need to refer to themselves or their parts: thus, for instance, the parties hereto comes to substitute the open set of alternatives such as “the parties to this agreement/contract/addendum/ convention/treaty/,” and so on, while hereunder succinctly replaces the more specific “under this document/deed/contract/section/paragraph/article/,” and so on. In this sense, such formulaic complex adverbs help legal professionals—who habitually deal with such texts—to produce and process legal texts in a more automatic and condensed manner.
grammar in the law
3
Modality In legislation and contracts, the modal verb shall is used with a “mandatory” force, that is, to impose obligations (while must and have to—which are common in conversation—tend to be avoided: see Trosborg, 1995). The mandatory meaning is also conveyed through the present tense, especially in performative utterances representing the “constitutive” nature of law (grants of rights, assumptions of obligations, etc.). Less frequently, shall also appears in future references and in predictions. Other modals have similarly dual functions: may (as well as can) expresses permission and possibility, sometimes leading to ambiguities and requiring legal interpretation over whether the deontic or the epistemic meaning was intended. The putative should is frequent in conditionals to express a theoretical possibility.
The Sentence and Grammatical Transformations Legal documents follow the rules of written grammar and are probably the most removed from the syntax of spoken conversation. One legal sentence typically consists of many clauses which would be formulated as a sequence of independent sentences in non-legal contexts. Sentences are usually very long; in the past, a whole document could even be constructed from a single, unpunctuated sentence. (One reason for this practice was the attempt to prevent any subsequent insertions of punctuation marks which could alter the meaning of the original manuscript.) Clauses in legal texts are linked in two distinct ways: paratactically and hypotactically, with nonfinite clauses being particularly frequent. While parataxis leads to the cumulative linking of clauses that could easily stand on their own in other genres, hypotaxis concerns the subordination of clauses and clausal elements, often with several levels of embedding. Such coordination and subordination of finite and nonfinite clausal elements adds not only to the notorious length of legal sentences but also to their syntactic complexity. As a result of the elaborate syntax—combined with high lexical density—legal texts may turn out to be difficult to understand, especially by the lay public. As with other genres of official and impersonal communication, legal language often uses verbo-nominal predication. This means that a clause contains a semantically vague verb resembling a copula and acting as little more than a mere carrier of the grammatical categories. The semantic core of the predication, by contrast, is shifted to the nominal element (e.g., to provide → to make provisions about). Conceptually, verbo-nominals recategorize processes into products (that is, turning intangible but dynamic “happenings” into concrete but static “things”). As a result, they become comparatively more open to quantification as well as to clausal and adverbial qualification (see below). Legal texts frequently use the passive voice. This diminishes the role of the semantic agent, who either is expressed through an optional sentence constituent (that is, a prepositional phrase with by), or, more frequently, disappears from the clause entirely. Unexpressed agents of passives and past participles make legal texts not only more impersonal (thus contributing to the “objectification” of the content), but also more general and universal (e.g., passives such as it is deemed, it is understood, it is to be interpreted as, etc., which leave the agency open to an unspecified doer). In addition, the passive has a significant textual function, especially in languages with a relatively fixed word order, such as English. By allowing sentence constituents to be rearranged within a clause, the passive helps to satisfy the principles of end-weight and especially end-focus. As a result, sentence structure can more adequately reflect the natural progression from known to new information, thus meeting the requirements of functional sentence perspective (theme–rheme, topic–focus articulation). Present and past participles are used frequently as adjectival modifiers. As nonfinite clausal elements, they significantly condense the syntactic structure of the sentence. In this way,
4
grammar in the law
they pack more information into the clause, making the texts not only grammatically more complex but also cognitively more difficult to unravel. The same holds for some adjectives (e.g., an offence punishable under section 182) and nominalizations, which have a similar clausecondensing function (e.g., permission; termination; compensation). These nominal transformations actually represent underlying processes and can be potentially expanded into their full clausal equivalents. It is in such finite clauses that, to use Halliday’s terms, these “grammatical metaphors” find their congruent (that is, primary) realizations. Further complexities arise from the morphological structure of some grammatical metaphors (e.g., unimpeachable) and their combinations into extended groups (e.g., review of arrangements for judicial appointments and removals; Northern Ireland Act, 2009).
Syntax of Legislative Writing (Legislative Writing and Syntactic Discontinuities) The grammar of legislative writing reflects the cognitive structuring of its content in terms of the underlying legal norms: concrete sentences, with their grammatical and syntactic structures, are mapped onto the abstract provisions. Legislative texts must meet the requirements of precision and unambiguity, yet they must also allow for all-inclusiveness and discretion in the actual decision-making practice. The syntactic structure of legislative provisions is built on the structure of the directive “rule of law,” which has been described by the legal theorist Hans Kelsen (2006 [1949], p. 45) as “If A, B ought to be.” This is known as the legal norm, which has a mandative and normative character (unlike the “law of nature,” which relies on the causative relation of “If A, then B”). It is used for imposing obligations and conferring rights (cf. the older views of law as “the binding command” or “the legislator’s will”). At the syntactic level, the legal norm comes to be realized through conditional sentences, introduced with conjunctions such as if; where; provided that; unless; in the event of; and in case of. Conditionals typically follow one of two abstract patterns: “If X, then Y shall do Z” and “If X, then Y shall be Z” (Crystal & Davy, 1969; Bhatia, 1994). The legislative provision then consists of three elements: participants, processes, and circumstances. In legal theory, these are known as the legal subject (Y), that is, the party subject to the provision; the legal action (Z), that is, the actual right, obligation, or prohibition imparted through the law; and the case description (X), that is, the circumstances that need to be present for the application of the main provisionary clause consisting of the legal subject (Y) and the legal action (Z). Occasionally, other structures may convey the conditional meaning as well, for example relative clauses and various post-nominal specifications, as in the following sentence: A person desiring to appeal against such decision as is mentioned in subsection (2) shall give a written notice to the Authority specifying the decision against which he wishes to appeal and the grounds upon which such appeal is made; Broads Authority Act, 2009. Legislative provisions thus follow a two-part interactive cognitive structure: the main provisionary clause is interrupted at various syntactic openings by numerous qualifications (preparatory, operational, and referential), which are “meant to answer legal questions and doubts, and offer clarifications about various aspects of the main provision” (Bhatia, 1994, p. 152). The two moves (that is, the provisionary clause and qualifications) interact and result in making the provision—and the legal norm—precise and unambiguous. Thanks to this, the syntax of legislative provisions closely follows the process of legal reasoning. The actual processing of legislative writing then consists of the extraction of the main provisionary clause (that is, the legal action that is to apply to the legal subject), which is embedded in numerous specifications, limitations, and intertextual references. The qualifications then modify the main provision by significantly limiting the scope of its applicability.
grammar in the law
5
The interaction between the provisionary clause and the attendant qualifications disrupts the unimpeded syntactic progression of the sentence because the qualifications are inserted at any available place whenever the need arises to specify the nature of the legal action. This results in unexpected syntactic discontinuities, which are characteristic also of other kinds of written legal language. Individual elements within a sentence are immediately qualified by means of phrasal or clausal insertions, sometimes even across phrase boundaries and at the expense of expected patterns of word order. The insertions may be very extensive and themselves subject to further qualifications, giving rise to several levels of embedding (e.g., The Secretary of State may by order made by statutory instrument make transitory or transitional provision or savings in connection with the coming into force of any provision of this Act; Northern Ireland Act, 2009). As a result of syntactic discontinuities, a legal text may appear awkward (hence the frequent accusations of legal style as “tortuous”), though it becomes very effective in conveying the intended meaning. Syntactic discontinuities illustrate that in legal language, style is subordinate to precision and unambiguity. These goals are pursued even at the expense of readability, for the lay person or legal professionals alike. At the same time, however, precision in legislative instruments is balanced with flexibility and all-inclusiveness. Over-explicit lists and enumerations tend not to be provided. Instead, flexibility is achieved primarily lexically through such subjective terms as reasonable, relevant, and so on, which are to be interpreted against the specific circumstances of a case. These lexical items allow for discretion in judicial decision-making (see Maley, 1994, p. 27).
Grammar in Spoken Legal Discourses The spoken language of law takes on a variety of different forms. It includes police interviews, courtroom interrogation, expert witness testimony, lawyer–client interviews, jury deliberation, and other genres (see Cotterill, 2003; Heydon, 2005, etc.). The lexicogrammatical complexity and textual patterning of legal–lay and legal–legal discourses may also reflect different modes of habitual reasoning (e.g., narrative vs. paradigmatic, see Heffer, 2005). When allowed to use the narrative style, the litigants may, for instance, use passives and impersonal constructions, thereby eliminating semantic agents. In this way, they may inadvertently render their accounts inadequate for legal purposes (Conley & O’Barr, 1990). Courtroom interaction is shaped by particular contextual and power relations that have an impact on not only the discourse structure of the speech event (in terms of sequencing, turn taking, etc.) but also its microlevel grammatical realization. In different stages of a trial, there is a tendency to use different grammatical constructions. This preference is directly tied to the ultimate aims of the interactants, that is, the co-construction of one’s own account and the destruction of the opposing party’s story. Thus direct examination (known as “examination in chief” in British English), marked by a cooperative and supportive mode, tends to include a higher proportion of open-ended questions, allowing for answers that are more narrative. By contrast, questions in cross-examination, marked by a combative and adversarial mode, tend to be asked differently: as yes/no questions and, significantly, narrative statements with question tags. The tags are either grammatical or lexical, sometimes appended as separate questions (e.g., Correct? or Is that right?). As information-seeking questions occur less frequently, responses are often limited to mere yes/no confirmations. Grammatical forms used to ask questions may be arranged on scales reflecting increases in coerciveness, information control, information deniability, and so on (Gibbons, 2003). For instance, some syntactic transformations, such as nominalizations and statements
6
grammar in the law
projected in reported speech, may be difficult to deny because they present the crucial proposition in the form of an embedded presupposition that is taken for granted. Various jurisdictions place restrictions on the admissibility of leading and captious questions that suggest the desired answer or contain unproven suppositions (e.g., I suggest . . . ; I put it to you that . . . ; Is it not the case that . . . ?). Questions asked during dialogic courtroom interrogation employ frequent repetition and structural parallelism, often for rhetorical and strategic purposes and with the aim of influencing the jury. Similar phenomena appear in the lawyers’ opening and closing speeches, which are preplanned and nonspontaneous speech events of the “written-to-be-spoken” type. Such monologues contain interactive phenomena (means of direct address, questions, commands) addressed to the jury as the actual and explicitly ratified recipients of messages in the complex multi-party participation framework of courtroom discourse. Some discourse markers are used in specific ways. Lawyers, for instance, often preface their utterances with the “so” summarizer in order to emphasize the previous sequence and draw logical inferences. Since the questioners’ inferences come in the form of yes/no questions, they are difficult to contradict (Johnson, 2002; Cotterill, 2003). Courtroom interrogation also includes other phenomena typical of spoken language, such as hesitation, false starts, and reformulations. These occur especially when defendants and witnesses who, subjected to face-threatening acts, are forced to provide unrehearsed and dispreferred responses, are made to concede some facts detrimental to their case, and are found to have lapses of memory about past events. Communication in the courtroom follows conversational norms different from the usual norms of authentic conversation; the operation of some pragmatic principles and maxims is modified or suspended. Silence, that is, the non-production of any verbal response, assumes various meanings, ranging from a lack of knowledge to an admission of guilt (see Kurzon, 1995).
The Simplification of Legal Grammar Legal language has been negatively commented on for centuries. Some of its early critics included the English king Edward VI (1547–53), the British satirist Jonathan Swift, and the US president Thomas Jefferson, among others (see Asprey, 2003). The English language probably attained the height of its verbosity in the 18th century (Melinkoff, 1963), not only in law but also in other domains, such as literature. Criticism has been levied against both vocabulary (archaisms, binominals, complex prepositions, French and Latin expressions) and grammar (complicated syntax, passives, impersonal constructions, formulaic phrases). The negative public attitude has become lexicalized into commonly used pejorative labels referring to legal language, such as legalese, gobbledygook, and legal jargon. The complexity of legal language is sometimes explained in terms of privileged access. It is argued that lawyers use complicated language as a means of intentionally and willfully mystifying their activities, that is, in order to preserve their professional exclusivity and to prevent the public from understanding their discourse. However, many legal genres— such as contracts—face the “two-audience dilemma”: they are produced by lawyers for non-lawyers, yet are ultimately interpreted by other legal professionals (Gibbons, 2003). Criticism of legal language is sometimes misguided, conflating two separate issues: “legal style” and “bad style.” Some of the calls for plain language are directed less against particular registers, such as legislation and contract law, than against the overcomplex style that is often found in official and institutional contexts. Simplification for the sake of clarity has traditionally been promoted in various style manuals, which have enjoyed wide
grammar in the law
7
popularity for over a century (see such classics as H. W. Fowler’s The King’s English, 1906, E. Gowers’s The Complete Plain Words, 1954, and George Orwell’s critical essay Politics and the English Language, 1946). Systematic attempts to simplify legal language date from the 1970s. Several US banking and insurance institutions started rewriting some of their legal documents for the public, motivated partly by a desire to increase their market share and partly by the need to follow new consumer legislation requiring “plain language.” Legislative drafting in the US is now also guided by explicit instructions on plain language style. Other, mostly English-speaking, countries followed suit, introducing various grassroots initiatives calling for language reform and demanding that in democratic societies people, as the subjects of legal norms, have the “right to understand.” Although the grounds for language simplification have been repeatedly questioned by linguists, who have provided functional explanations for the peculiarities of legal language, the trend toward simplification seems to have the support of the general population. More recently, many public and government institutions have successfully rewritten their documents for the public, assisted by the recommendations or the commercial editing services of plain-language groups. Typically, the rewriting removes impersonal constructions, extensive embedding, and long sentences, as well as the passive voice, which has been subject to prolonged criticism despite its well-defined grammatical functions. Linguist-led simplification of legal language has also been successful. In the US, jury instructions in many jurisdictions have been rewritten to make them more intelligible, and significant progress has been achieved internationally with the comprehensibility of police cautions (called “Miranda warnings” in the US), which have also been simplified (see Cotterill, 2000; Gibbons, 2003). Some linguistic simplification, such as the replacement of some archaic vocabulary, has also resulted from recent judicial reform by Lord Woolf in the UK (1999).
Grammar as Linguistic Evidence Over the past decade, the new discipline of forensic linguistics has drawn on various levels of linguistic analysis, including grammar, in order to provide evidence in legal cases. Lexical collocations and syntactic structures have been linked to the idiosyncratic use of language and treated as likely markers of personal identity, especially in cases of disputed authorship. Syntactic analysis has helped to reveal inconsistencies in the alleged use of language by individuals, for example in cases where evidence was doctored by the police. For instance, Coulthard (2002) showed in the 1998 retrial of the infamous 1950s UK case of Derek Bentley that what had been originally presented as a verbatim monologic witness statement—on the basis of which Bentley was executed—was in fact a multivoiced text. The all-too-frequent negative statements were found to be traces of dialogue, that is, answers to questions, while the position of the discourse marker then in the post-subject rather than the initial position was established as a typical feature of police language. Forensic linguistic evidence is also crucial in cases of textual borrowing, for example plagiarism. SEE ALSO: Forensic Discourse Analysis; Forensic Linguistics: Overview; Language of Courtroom Interaction; Language of Jury Instructions; Language of Police Interviews; Legal Language; Lexicogrammar
8
grammar in the law References
Asprey, M. M. (2003). Plain language for lawyers (3rd ed.). Sydney, Australia: The Federation Press. Bhatia, V. (1994). Cognitive structuring in legislative provisions. In J. Gibbons (Ed.), Language and the law (pp. 136–55). London, England: Longman. Conley, J. M., & O’Barr, W. M. (1990). Rules versus relationships: The ethnography of legal discourse. Chicago, IL: Chicago University Press. Cotterill, J. (2000). Reading the rights: A cautionary tale of comprehension and comprehensibility. Forensic Linguistics, 7(1), 4–25. Cotterill, J. (2003). Language and power in court: A linguistic analysis of the O. J. Simpson trial. Basingstoke, England: Palgrave Macmillan. Coulthard, M. (2002). Whose voice is it? Invented and concealed dialogue in written records of verbal evidence produced by the police. In J. Cotterill (Ed.), Language in the legal process (pp. 19–34). Basingstoke, England: Palgrave Macmillan. Coulthard, M., & Johnson, A. (2007). An introduction to forensic linguistics: Language in evidence. London, England: Routledge. Crystal, D., & Davy, D. (1969). Investigating English style. Harlow, England: Longman. Gibbons, J. (2003). Forensic linguistics: An introduction to language in the justice system. Oxford, England: Blackwell. Heffer, C. (2005). The language of jury trial: A corpus-aided analysis of legal-lay discourse. Basingstoke, England: Palgrave Macmillan. Heydon, G. (2005). The language of police interviewing: A critical analysis. Basingstoke, England: Palgrave Macmillan. Johnson, A. (2002). So . . . ? Pragmatic implications of So-prefaced questions in formal police interviews. In J. Cotterill (Ed.), Language in the legal process (pp. 91–110). Basingstoke, England: Palgrave Macmillan. Kelsen, H. (2006 [1949]). General theory of law and state. New Brunswick, NJ: Transaction Publishers. Kurzon, D. (1995). The right of silence: A socio-pragmatic model of interpretation. Journal of Pragmatics, 23, 55–69. Maley, Y. (1994). The language of the law. In J. Gibbons (Ed.), Language and the law (pp. 11–49). London, England: Longman. Melinkoff, D. (1963). The language of the law. Boston, MA: Little, Brown & Company. Trosborg, A. (1995). Statutes and contracts: An analysis of legal speech acts in the English language of the law. Journal of Pragmatics, 23, 31–53.
Suggested Readings Bázlik, M., & Ambruz, P. (2009). Legal English and its grammatical structure. Prague, Czech Republic: Kluwer. Bhatia, V. (1993). Analysing genre: Language use in professional settings. Harlow, England: Longman. Charrow, R. P., & Charrow, V. (1979). Making legal language understandable: A psycholinguistic study of jury instructions. Columbia Law Review, 79, 1306–74. Cotterill, J. (Ed.). (2002). Language in the legal process. Basingstoke, England: Palgrave Macmillan. Gibbons, J. (Ed.). (1994). Language and the law. London, England: Longman. Mattila, H. E. S. (2006). Comparative legal linguistics. Aldershot, England: Ashgate. Schane, S. (2006). Language and the law. London, England: Continuum. Shuy, R. W. (1993). Language crimes: The use and abuse of language evidence in the courtroom. Oxford, England: Blackwell. Solan, L. M., & Tiersma, P. M. (2005). Speaking of crime: The language of criminal justice. Chicago, IL: University of Chicago Press. Tiersma, P. M. (1999). Legal language. Chicago, IL: University of Chicago Press. Trosborg, A. (1997). Rhetorical strategies in legal language: Discourse analysis of statutes and contracts. Tübingen, Germany: Günter Narr.
