Chapter 3

Accuracy and precision fundamental characteristics of legal language Result from the requirement for legal protection and legal certainty To avoid the possibility of arbitrariness, legal rules should be formulated without ambiguity

In a democratic state, linguistic clarity absolute norm of legislation Dictatorships sometimes also prefer clear language; however, they can move over to a form of language that is intentionally unclear, if it serves their interests In international relations, linguistic ambiguity may be a conscious choice in some negotiating situations (e.g. negotiators can leave equivocal an article in a treaty on which they have not reached agreement; this allows the parties later to make a corridor compromise without endangering the entry into force of the treaty

Written form necessary for accuracy Oral legal knowledge uncertain and changeable Archaic law: summary character concrete situations, presented in rhythmical form for mnemonic reasons

Legal terms should be used logically and consistently Changing terms gives rise to doubt as to the possibility that the meaning has also changed Goal of legal language to transmit legal messages with absolute clarity and without ambiguity Stylistic considerations give way to the accuracy of legal messages

Even legislative language not always entirely logical and consistent as to terminology; reasons: laws and regulations forming the legal order come from different epochs

EU directives sometimes contain terms that differ from those in national legislation; this involves a deliberate choice by the national legislator: if a term that differs from one in national legislation is adopted in a directive, then the national legislation implemenitng the directive may stay with the ingrained term: this is especially the case where the meaning of the term adopted in a directive only approximately covers the meaning of the established national term

A noun is not replaced by a pronoun if that can cause ambiguity as to the subject or the object of the sentence In the past: lawyers not only repeated key substantives but added a precision-word, e.g. the said, in front of substantives; this tradition goes back to medieval times and is still partly to be seen in what is called chancellery style in various countries

Legal terms may have multiple meanings (polysemy) Therefore, they are often defined within a particular context to avoid mistakes and misunderstandings Legal language many definitions Corpus iuris civilis (Code, Digest, Institutes, Novellae; the Digest: 246 legal definitions)

Real and terminological Real d.: concern entities that exist in reality in the physical world (e.g. real property) Goods are movable by their nature, or if the law so

determines (Les biens sont meubles par leur nature, ou par la dtermination de la loi)

Terminological d. only exist in legal reality (e.g. an obligation) The borderline between real and terminological definitions often vague

Extension: the class of entities to which a term refers Intension: common characteristics of all the meanings of the term)

Formulated by enumerating the sub-classes that form the class to be defined; this is possible where the sub-classes are wellknown and their number is limited

The definitio per genus et differentiam The starting point to indicate the class to which the sub-class to be defined (species) belongs The next step: to show the elements by virtue of which the sub-class to be defined differs from the other sub-classes included in the class Legal system based on classifications

Additionally, codes and other major pieces of legislation contain definitions of terms that can be characterised as implied: the content of a term used in a code can, at least in part, be determined from the position of the term in the systemic structure of the code. The headings of the code (books, titles, chapters, sections, subsections, paragraphs) function as parts of the definition.

Combines the characteristics of real and terminological defginitions, as well as those of extensive and intensive d. Common law countries detailed definitions

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

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

Principal terms in international treaties often defined in treaties themsleves; legal institutions differ from one country to another; interpreters of a treaty form a heterogenous audience characterised by linguistic pluralism

For the purposes of this Convention () (b) a trustee shall not be regarded as an agent of the trust, of the person who has created the trust, or of the beneficiaries (Aux fins de la prsente Convention () (b) le trustee nest pas considr comme un intermdiaire agissant pour le compte du trust, du constituant ou du bnficiaire) (the (Hague) Convention on

the Law Applicable to Agency)

- the institution of trust: traditionally unknown in continental Europe it was necessary to define the connection between trust and the Convention

Eisenbahn is ein Unternehmen, gerichtet auf wiederholte Fortbewegung von Personen oder Sachen ber nicht ganz unbedeutende Raumstrecken auf metallener Grundlage, welche durch ihre Konsistenz, Konstruktion und Gltte den Transport grosser Gewichtsmassen beziehungsweise die Erzielung einer verhltnismssig bedeutenden Schnelligkeit der Transportbewegung zu ermglichen bestimmt ist, und durch diese Eigenart in Verbindung mit den ausserdem zur Erzeugung der Transportbewegung benutzten Naturkrften (Dampf, Elektrizitt, tierischer oder menschlicher Muskelttigkeit, bei geneigter Ebene der Bahn auch schon der eigenen Schwere der Transportgefsse und deren Ladung, usw.) bei dem Betrieb des Unternehmens auf derselben eine verhltnismssig gewaltige (je nach den Umstnden nur in bezweckter Weise ntzliche oder Menschenleben vernichtende und die menschliche Gesundheit verletzende) wirckung zu erzeugen fhig ist. (RGZ= Reichsgericht in Zivilsachen I, 247) (p. 69)

Background of this judgment: a law adipted in 1871 which imposed strict liability on railway companies for risk created Lawyers for the railway companies attempted by all means to limit the notion of railway in order to avoid strict liability

Commercial contracts and wills drawn by common-law lawyers often include definitions

ARTICLE ONE DEFINITIONS Beneficiary means the recipient of a bequest made by this Will. Bequest means a gift made by this Will. My children means my daughter REBECCA SUSAN WEISS, born January 24, 1987M my son CHRISTOPHER WEISS, born June 5, 1990; my stepson WILLIAM PAUL WEISS, whether or not later adopted by me, and any other children born to or adopted by me after I execute this Will

Detailed definitions give the impression that legal language is entirely accurate and without ambiguity, which is not the case Legal vocabulary words with multiple meanings; no amount of detailed definition can avoid all cases of ambiguity; likelihoood of ambiguity increases with more detailed definition: it is complicated and it is attractive to consider it complete in spite of the possibility of gaps

Additional problems: knowing to what extent a legislative definition is conditional on the law in question still remaining in force in unchanged form The concept expressed by the definition may have been essentially broadened or narrowed by case law or by legal science

Enumerative lists often raise the problem of knowing if they are exhaustive or merely explanatory

Au sens du prsent titre, on entend par: Matriels de base, gnrateurs des matriels forestiers de reproduction;-les peuplements, notamment les vergers graines, pour les matriels de reproduction gnrative; les clones et les mlanges de clones en proportions spcifies pour les matriels de multiplication vgtative; Matriels forestiers de reproduction: - les semences: cnes, infrutescences, fruits et graines, destins la production de plantes par voie gnrative; ()(Code forestier) p. 71

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

The key: to know for whom laws are written experts or citizens? Even laws concerning fundamental questions of citizens lives written for experts who are charged with their technical application (e.g. social and fiscal law) Laws highly complex: distributive justice, which presupposes highly detailed rules

Often mathematical formulas relating to the calculation of some welfare allowance or a tax to be paid Social and fiscal laws should be written very compactly, with as high a density of information as possible, to prevent their becoming over-long

The legislator does not suppose that laws of a technical character are understandable to the general public Such laws communicated to citizens by means of short-form bulletins, leaving out the details

In many civil-law countries the language of judgments overloaded with messages; appearance of abridged codes Today judgments closer to ordinary language; however, because of this, judgments have become too long and their internal logic is weakened; a judgment formulated in ordinary language contains more secondary elements, impeding the transmission of the legal message, than a traditional compact judgment

Modern law-abstract character; regulates entities that are mental creations: rights and obligations; in Swedish legislation: only 5-8% verbal substantives refer to entities that exist in time and space Law based on experience drawn from the real world but it regulates hypothetical future cases; timespan linked to legal rules often characterised by universality, impossible to see from the chronological standpoint: timelessness of law

Verbs: conditional is common, while the present tense dominates Private documents: parties have to prepare for possible change of circumstances; to some extent, the clauses have to allow for hypothetical situations

Frequent use of passive: brings the object of the action into the foreground, giving the actor only a secondary role Even when actors are in the foreground, individuals are pushed into the background by personification of authorities and corporations: the ministry orders (), the court finds()

Actors to do not appear under their private names but are called by their titles or functions: director, president, etc Private persons -named according to their roles: applicant, appellant, defendant Advocates seek to lend their arguments an appearance of objectivity to make them credible and convincing (e.g. It appears that

Article 27 of the law on judicial records should be interpreted so that (); not: It seems to me)

At one time, the intention was to impress readers or listeners by a legal text, by stressing the sacred character of the law and by using magical rhythm; some features still exist: the language of oaths, the rituals of justice Legal language today: official and formal Neutral style: to have an effect on the understanding, rather than the feelings, of the reader or listener

Legal style: cold: rejects all that is affective and does not include emotional elements Legal texts: no exclamation or question marks Neutrality of legal language guaranteed by the fact that many legal texts (laws, administrative instructions, on the Continent also judgments) pass through the offices of several commentators and stylists before receiving their final form: they are not from a single hand

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

Important aspect of neutrality: designations of legal institutions and phenomena; the legislator discards expressions that might be felt to be insulting In Finland: a judge should express himself in a calm and composed way; Anglo-American judges a far greater freedom

Dissenting opinion of judge Musmanno, of the Pennsylvania Supreme Court, in the case relating to Henry Millers Tropic of Cancer:

Cancer is not a book. It is a cesspool, and open sewer, a pit of putrification, a slimy gathering of all that is rotten in the debris of human depravity. And in the center of all this waste and stench, besmearing himself with its foulest defilement, splashes, leaps, cavots and wallows a bifurcated specimen that responds to the name of Henry Miller

In contrast to medieval times, modern legal language is neutral; no longer figurative Only a few modest traces remain of the colourful legal language of the past, mostly in the form of legal maxims In modern legal language, metaphors are rare Metaphors: common in solemn speeches on the notion of law, its fundamental principles, etc. Metaphors e.g. landscape of legal culture

Some legal terms originate from metaphors Metaphor: useful linguistic means involving sth new that has to be named; brings out features analogical to the new and the old; thanks to a metaphor, it is possible to describe the functions and structure of a phenomenon, without defining it in detail; enables expression of a process or state without inventing a new term, which always requires a running in period. (e.g. virus as a computer term)

burden of proof (Roman law: onus probandi: calques all over Europe: onere della prova, carga de la prueba, charge de la preuve, Beweistlast, bevisbrda,

Source of law

Italian authors often use images that express combat (difesa, combattimento), or thought process (Il percorso argomentativo seguito, itinerario di ricostruzione)

Advocates: metaphors appealing to the sentiments of listeners: lions partnership (Lat. societas leonina), lions share (Lat. pars leonina) examples that go back to Aesops fables. Advocates in the Romance countries use these images fairly often; at one time, this was also true of the Nordic countries

Matthias Calonius, author of Finno-Swedish legal science at the turn of the 19th c.: Natural law does not accept a contract according to which one party obtains all profit and the other party bears all loss, or according to which there accrues to one party a greater part of the profit or loss than that corresponding to their input into the company. Such a company is termed a lions partnership after the famous fable by Aesop Today: inequitable share

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

Systemic character highlighted when a new law is adopted or an old one reformed; this is reflected in a great number of laws and regulations that include articles in direct contradiction or otherwise in discord with a new or reformed law; dispositions of those other laws and regulations need to be modified

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

References horizontal (between two laws) or vertical (from a decree to a law, from a judicial decision to a decree) Frequency of references -influenced by traditions of a legal culture

The German Code - A codification intended for use by professional judges, aiming to give the answer to every legal problem; contains a very large number of references Swiss Civil Code - Intended for all citizens; includes few references Common law countries: judges refer to precedents and less to other sources of law When a highly technical branch of law is involved, many references are used (e.g. land law, water rights, finance, welfare)

1. in reinforcing the systemic idea of the legal order, references are appropriate for eliminating internal contradictions 2. References show the wider contexts to which the different elements of the legal order belong; informative and mnemotechnical function. A reference shows that another legal text exists that links to the issue involved 3. References eliminate repetitions, the text becomes lighter and more economical

References can lead to several interpretations They can become ambiguous following changes to the texts to which they refer Occasionally: void references: the reference indicates a repealed legislative text or one still at the preparatory stage that is never promulgated

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

A person who fails to make a declaration, or who

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

Text to which a particular reference refers may not be easily available; in criminal law: if penal legislation refers to texts beyond the scope of criminal laws as to description of elements constituting the offences in question, some specialists consider that the principle of legality is under threat References should not be used where the legal order risks becoming less transparent as a result; when used, their object and content should be specified with enough accuracy

Terms should be used as logically and consistently as possible in all legal contexts Linguistic cohesion In different laws, the same terms obtain the same content as far as possible

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

Legal texts: many ready-made sentences and petrified phrases

Laws and regulations - divided into smaller sections, in a logical order (e.g. abstract concrete, substantive procedural) Codes - complicated divisions (e.g. Brazilian Civil Code: division into 8 or 9 gradations: part, book, title, chapter, section, article, paragraph, sub-paragraph, indent

Consistent numbering in order to cite a particular element (e.g. chapter, article) The logic of numeration not always the same: each sub-unit of a legislative text can start with article no. 1; the numbering can also run without interruption throughout the entire law The numbering of codes may be decimal: a series of numbers, separated from one another by decimal points, shows the systematic position of the particular article in the overall code (France)

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

In countries lacking major codifications, laws and regulations often systematised in semi-official or private compilations to facilitate the application of legislation Finland: a large, two-volume compilation of legislation is regularly published in Finnish and Swedish The structure of these compilations may vary within the same country and may easily change over time One should be cautious in drawing any conclusions on the field of usage of terms, by virtue of the construction of these compilations

Formulas ; over half of Finnish civil servants stated that they follow models of texts drafted in advance In extreme cases, a model form provides an absolute paragon for an oral or written text: in civil-law countries . Such cases are to be found in judicial language and private documents

In archaic law, formalism was heightened by magical functions of the law; With the help of language rituals, the Most High was invited to the judicial process and His will could be interpreted Magical repetition still reflected today in the formulas of the oath

Today: repetition underlines the authority of judges or civil servants (we should and do condemn), we declare, order and sign, I undertake to propose and do propose (Spain) Anglo-American documents - rituals of repetition especially frequent Formulas highlight hierarchies and conceptual opposites, and guarantee the understandability of synonyms

Written form guaranteed the stability of the law more than the oral form At the same time, this form was suited to petrifying the law and making legal language more formalistic Also: printing enabled efficient distribution of collections of model texts

Heavy structure of text and archaic expressions Today: model legal forms no longer rhythmic, or even laconic Formalism often means a stereotypical and monotonous kind of language

Advantages: 1) legal protection and certainty of procedures require repetitive models of action in the application of the law; standardised words and phrases have an established interpretation Intertextual character of legal language Legal reasoning: largely based on the authority value of sources used A lawyer copies a ready-to-use form from a collection of model documents or from a contract that he has previously drafted

2) An established model ensures that the legal act in question is performed in the form required by law; important in countries where important documents can be signed without any contribution from a notary or a lawyer (e.g. when a Finnish testator uses a printed form of will from a collection, the formal requirements of Finish law will automatically be fulfilled: written form, testators signature, signature of two witnesses

3) the use of a model means that the document is structured and arranged at both paragraph and sentence level A model form arranges and composes the text of a document clearly and systematically Standardises the use of words and prevents the document from becoming too long: economy of legal language Saving time: self-drafting a judgment or a contract would take a lot of time and would require vast knowledge Easier to archive and retrieve by computerised means

Legal forms - more or less fixed or flexible Often used in performative language acts, but also appear in other contexts A form only appears as an invariable unit within the genre of the text in question Model forms: linguistic petrifications; syntax of legal forms - often archaic features

At times, a document almost wholly dictated by formula In other cases, formalism only concerns certain expressions (opening and closing phrases in documents, as well as expressions that signal that a new section of the text begins from that point (e.g. considrant que, attendu que, par ces motifs; serve as signs of transition marking the start of a new section of the text

In Denmark all judgments contain the archaic expression thi kendes for ret (it is therefore considered just solemnly informs the reader that the text continues as the operative part of the judgment

In common law judgments, judges as individuals are visible: their grounds are full and detailed, their language often colourful; true also of dissenting opinions; the position taken by the court expressed by the we form, and that of the judges as individuals by the I form; a judge may even openly admit to having made an error: e.g. opening speech of Lord Steyn (Morgans v Director of Public Prosecutions):

My Lords, in giving the judgment of the Court of Appeal (Criminal Division) in R v Effik (1992) 95 Cr App R 427 I gave a restrictive interpretation to s 9 of the Interception of Commujnications Act 1985, by holding that it contains no provision making clear that any evidence obtrained as a result of an interception will be inadmissible. Eight years later, aided by the incisive arguments of counselo in the present case, I have had the opportunity to re-examine the point. I am now fujlly persuaded that my earlier interpretation was wrong. And I agree with the speech of Lord Hope of Craighead. But it is appropriate, if only for the historical record, that I explain shortly the reasons for my conversion

In Germany, grounds of a judgment based on positions taken by legal science; these grounds regularly cite books and articles by academic lawyers; German judges write their grounds as scientific essays, which allows a dialogue with legal science; frequent references to legal scholars

In France, judgments are condensed into a fixed formula in which the grounds are succinct and formal; no dissenting opinions; a French judgment consists of a single sentence structured by key-words, which vary between courts: attendu que (Court of Cassation, i.e. the Supreme Court and general courts of first instance, while administrative courts and some courts of appeal use the expression considrant que

Legal provisions referred to are preceded by the word vu, and the operative part of the judgment always begins with the words PAR CES MOTIFS (written in block capitals) In 1977, a new style was put into practice: the facts, the development of the proceedings, and the claims of the parties presented in discursive form not generally accepted Only the grounds and the operative part of the judgment drawn up in a single sentence

Judgments in France drawn up much more formally than in Germany or the common law countries Votes of English and American higher courts are written individually, often highly personally; recently . Reductions in differences of style of judgments, EU: different legal traditions mingle

1000 years ago, the notarial profession developed in Northern Italy, later spreading in Europe One of the main tasks: drawing up private documents For repeat cases, model forms were developed, partly in Latin, partly in the vernacular

Language of model forms of private documents traditionally as complicated and embellished as that of judgments and other official documents Solemnity of forms still visible today Long sentences

English: forms for wills complicated, often running to several printed pages SIGNED, SEALED, PUBLISHED AND DECLARED by the above-named person as and for a Last Will and Testament, and we did, in his presence, hereunto subscribe our names as witnesses thereto

In common-law countries increasing attention has been paid to clarifying the forms of private documents An American lawyer, Thomas S. Word Jr, proposed forms for drawing up a will in understandable language - the plainlanguage will

I, John Quincy Doe, now residing in the city of Richmond, State of Virginia, being of sound mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking, annulling and canceling any and all wills and codicils heretofore made by me (original will) Revised will: I, John Quincy Doe, of Richmond, Virginia, make this will, and revoke all earlier wills and codicils

Unser Testament 1. Ich,.. (Name, Vorname, Anschrift) setze meine Ehefrau..(Name, Vorname, Geburtsname, Anschrift) zur Hlfte und unsere Kinder auf die andere Hlfte des Nachlasses ein 2. Ich,(Name, Vorname, Geburtsname, Anschrift) setze meinen Ehemann(Name, Vorname, Anschrift) zur zur Hlfte und unsere Kinder auf die andere Hlfte des Nachlasses ein

Lawyers rely on authoritative texts: e.g. a court order is grounded by referring to a law or regulation, to a judicial decision, to a legal treatise, etc Legal language: rich in argumentation: assertions are grounded in detail The same sources continually repeated

Official title of a law, a publication, or an office can be long and complicated Ie.g.

Receueil de jurisprudence du droit administratif et du Conseil dEtat)

The use of initialisation (RJDA) facilitates references to various texts Space-saving

However: initialisations that are unfamiliar to the reader make the text more difficult to understand Use of initialisations - an end in itself in legal circles Unstable often- multiple meanings

Not always easy to know what language lies behind an initialisation; in smaller linguistic zones, the initials of international institutions (NATO, WTO) can result from their titles in English although the complete forms are normally expressed in national languages

The manner of constructing initialisations not uniform; sometimes, the first letter of each word included, but often several words are omitted; recently: acronyms have become common in various countries; to enable pronunciation these include not only the first letters but often additional letters, which makes decoding still more difficult

The culture of initialisations- not uniform amongst lawyers even from the same country; many initalisations . Only known by lawyers of a particular branch of the law, even from a particular court or government office

Dictionaries of initialisations and abbreviations . In some cases, large dictionaries exist, while in others there are only modest lists or nothing at all The World Dictionary of Legal Abbreviations covers legal cultures speaking English, French, Italian, Portuguese and Spanish (German culture excluded)

Abbreviations shortening Latin words; e.g. ib. Or ibid. = ibidem, in the same work Symbols versus > (Finland); counterclaim: x