（外国语言学及应用语言学专业论文）论法律英语的准确性与模糊性.pdf

on precision and vagueness of legal english ii 摘 要 摘 要 法律英语是指以英语为法律语言的普通法国家在立法、司法及法律实施过程 中所使用的一种语言，作为一种规约性语言分支，法律英语有其独特的特征。本 文拟将以语体学、法律语言学及模糊语言学的现有研究成果为基础，以立法语言, 司法语言和法律实施过程中的语言为研究对象，采用例证法和对比分析的方法， 对法律英语的准确性和模糊性进行系统的研究。 国内外专家学者多从词汇方面探讨法律英语的准确性，而忽略了其他层面的 研究，因此本文在对法律英语准确用词进行研究的同时，还将从句法方面对法律 英语的准确性做进一步的探讨。法律英语中，长句、复合句使用频繁，且大部分 的句子均为陈述句。平行结构的广泛使用同样体现了法律英语的准确性。 目前还很难找到专门论述法律英语模糊性的书籍，而且诸多相关研究基本上 还停留在表面层面，因此本文将对其进行深入研究。法律英语的模糊性主要体现 在词汇方面。在法律条文和司法实践中，模糊的名词、形容词、副词、并列连词、 数字俯拾皆是。法律英语的模糊性是由事物特征的持续变化，法律语言的概括性 及国籍、地理、文化的多样性引起的。模糊性可以提高法律英语的灵活性，满足 立法需求，并使法律语言在某些情形下变得文雅含蓄，但如果使用不当的话，法 律英语的模糊性也会产生一些消极影响。 通过系统论证， 作者得出结论： 准确性和模糊性是法律英语的重要内在特征， 二者既是对立的，又是统一的，在某种条件下还可以相互转化。 关键词：法律英语；准确性；模糊性 中南民族大学硕士学位论文 iii abstract legal english is a kind of english variety used in legislation, judicature and the enforcement of laws in common law countries, which have the tradition of expressing law in english. as a kind of customary language, legal english has its own specific features. based on the present achievements on stylistics, forensic linguistics and vague linguistics, this thesis is to make a systematic research on precision and vagueness of legal english by adopting the methods of exemplification and comparison and by analyzing the legislative language, the judicial language and the language in the enforcement of law. domestic and overseas experts and scholars mainly study precision of legal english from the lexical level, and ignore other aspects, this thesis therefore is to explore precision of legal english from not only the lexical aspect but also the syntactic aspect. in legal english, long and complex sentences are frequently used, and most of them are affirmative sentences. the extensive use of parallel structure also reflects precision of legal english. at present it is difficult to find any published books on vagueness of legal english, and most related research still rests at the superficial level. consequently, this thesis aims at making a deeper investigation on this aspect. vagueness of legal english mainly lies on the lexical level. vague nouns, adjectives, adverbs, prepositions and coordinating conjunctions abound in legal provisions and judicial practice. vagueness of legal english is caused by the continuous variation on the qualities of words, generality of legal english and diversity on nationality, geography and culture. vagueness can improve the flexibility of legal english, meet the requirements of legislation and make legal language polite and euphemistical in some situations, whereas, if it is not properly used, vagueness may have some bad influence as well. through the systematic analysis, the author concludes that precision and vagueness are two important intrinsic features of legal english. they are contradicted and united with each other, and on some conditions they can change to the opposite. key words: legal english, precision, vagueness 中南民族大学硕士学位论文 i acknowledgements i would like to acknowledge the following people for their kindness and support: first of all, i would like to express my sincere gratitude to my supervisor, professor zhang liyu not only for her great patience, constant encouragement and invaluable advice but also for her timely criticism when i was lazy in writing. without her help and guidance, the completion of the thesis would be impossible. i would also like to acknowledge professor luo jiansheng, professor huang chongzhen, professor yuan xuefen and professor lv wanying because their devoted teaching has broadened my horizon and enriched my knowledge. finally, i present my cordial thanks to my classmates chen min, zheng wenxia and xin ruiqing who have always encouraged and supported me. 中南民族大学硕士学位论文 1 1 introduction with the establishment of the market economy, especially after china entering wto in 2001, the foreign trade between china and other countries has been expanded quickly, and the mutual communication on law has been increasing greatly. now many universities in china have offered legal english this curriculum and start to use books of original english editions as their textbooks. consequently, it is necessary for lawyers, judges, translators and learners of legal english to know and grasp the features of legal english. however, there are few books or articles on this aspect, and the analysis is neither complete nor concrete, therefore this thesis is to make a systematic research on the features of legal english the study of legal english belongs to forensic linguistics, which studies the relationship between law and language. since english is an international language, many countries like america, australia, canada, new zealand, south africa, and so on all have it as their official language and their language of law. coincidently, the laws of these countries belong to common law system, one of the five famous law systems in the world. so legal english or english for law has become the most important part of forensic linguistics. great achievements have been made in forensic linguistics in common law countries. before 1970s, some legal experts and linguists had done much research on legal english and made important contributions. the essay on legislative expression written by george kued in 1843 marked the beginning of legal english study. since then, a lot of relevant papers and books were written and published. for example, david mellinkoffs the language of the law written in 1963 is regarded as the most typical book at this stage. this book played a significant role in plain english movement, which aimed at making legal language comprehensible to common people. the language of the law focuses on the lexical features of legal english, meanwhile, it deals with the origin of legal english and its development in anglo-american countries. another important book of this phase is david crystal and derek davys investigating english style, which was published in 1969. this book mainly illustrates the features of the language of legal documents from the stylistic point of view. however, before 1970s, research on legal english mainly dealt with legislative language, and the lexical features of legal english were the focus of the study, which is certainly not all-sided enough. on precision and vagueness of legal english 2 after 1970s, research on legal english enters a new stage. more and more researchers realize that language plays an important role in legal activities, and the achievements made by sociologists and anthropologists stimulate the study of legal english. meanwhile, many scholars find legal activities have lingual sources. in addition, the development of pragmatics especially speech act theory proposed by j. austin and j. searle make linguists broaden the scope of their study. a large number of scholars attach importance to how to apply language to social practice. the research on legal language at this stage focuses on tribunal utterances, legal oral activities, comprehension of discourse, and so on. even though some scholars like tiersma still pay attention to the study of legal texts and features of legal language, their researches dont form the mainstream. at this stage, scholars begin to explore vagueness of legal language, but they mainly study whether the existence of vagueness threatens the ideal of the rule of the law. endicott (2000: 31) thinks vagueness in law can lead to indeterminacy in legal rights and obligations. christie (2000) holds the idea that vagueness is an intrinsic feature of legal language. in china, the forensic linguistic research is just at the initial stage (杜金榜, 2000： 99). wang zuoliang and ding wangdao (1987) make a brief introduction of the features of legal english. pei wen (2000) mainly analyzes the lexical features of legal english. xiao yunshu (2000) pays more attention to the grammatical and pragmatic features of legal english. du jinbang (2001) analyzes how to remove vagueness in legal language. liu weiming (2003) goes deep into the nature and the sources of vagueness. dong xiaobo (2005) explores the pragmatic functions of vagueness in legal language. wei xiaopu (2005) states the techniques of translating vague expressions. although overseas and domestic scholars have made great achievements, there is no systematic study on precision and vagueness of legal english; therefore the author is to make a research on this aspect. since law is the embodiment of state power and the essential guarantee to the stability of society, only by using accurate and unambiguous words can law provides people in society with correct behavioral mode or standard; consequently legal english is much more precise than common english. as vocabulary is the elementary unit of language, scholars from inland and abroad mainly analyze precision at the lexical level, but ignore other important aspects. this thesis is to study precision of legal english from both the lexical and syntactic aspects. vagueness is another important feature of legal english, but the present study is quite limited. therefore in this thesis, the author 中南民族大学硕士学位论文 3 is to carry out a tentative research concerning vagueness of legal english. this paper is composed of six chapters. chapter 1 is the introduction of the thesis. chapter 2 relates law and its social functions, the relationship between language and law, and the definition of legal english. chapter 3 analyzes precision of legal english from the lexical and syntactic aspects. terms of art, archaic words, synonyms or near-synonyms, lexical repetition and nominalized words are frequently used to achieve lexical precision, and precision at the syntactic level is achieved by using long sentences, complete affirmative sentences and parallel structure. chapter 4 focuses on vagueness of legal english. it starts with the nature, the definition and classification of vagueness, and the differences between vagueness and ambiguity. then it analyzes how to achieve vagueness in legal english and why legal english is vague. finally it states the positive and negative functions of vagueness in legal english. chapter 5 explores the relationship between precision and vagueness in legal english. chapter 6 is the conclusion of the thesis. on precision and vagueness of legal english 4 2 legal english gibbons (2003:37) says, “every field of expertise develops its own language features.” legal english also has its own specific characteristics. to help english teachers and lawyers make good use of it, this thesis aims at analyzing two important features of legal englishprecision and vagueness. to have a profound understanding of them, we should first have a good understanding of law and its social functions, the relationship between language and law, and the definition of legal english. 2.1 law and its social functions there have been and will continue to be different definitions of law. the following definitions are adopted from the book legal english written by liu yigong and qu wensheng: aristotle saw law as a rule of conduct. plato believed that law was a form of social control. cicero contended that law was the agreement of reason and nature, the distinction between the just and the unjust. the british jurist sir william blackstone described law as “ a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong”. in america, the eminent jurist oliver wendell holmes contended that law was a set of rules that allowed one to predict how a court would resolve a particular disputes. according to oxford advanced learners dictionary of current english with chinese translation, law is defined as rule made by authority for the proper regulation of a community or society or for correct conduct in life. the definition of law in longman dictionary of american english is that law is a rule that is supported by the power of the government and that governs the behavior of members of a society. websters dictionary of american english defines law as the principles, rules, and regulations set up by a government, other authority, or by custom, that apply to all the people of a group; a system or collection of such principles and rules of a country that is ruled by law. although these definitions are different in details, all are based on the fact: law consists of enforceable rules governing relationships among individuals and between individuals and their society. law is generally expressed in such specific forms as constitutions, statutes, 中南民族大学硕士学位论文 5 regulations, stipulations, orders, rules and so on. law has penetrated into every aspect of our social activities and daily life. law has the following prominent functions. to begin with, law is used to protect the public order and provide predictability in society. law creates an orderly environment for us to study in or work in; otherwise, we will live in a chaotic and uncertain world. law provides a measure of predictability so that we can deal with things with certainty, and contract law is a persuasive example of this. in addition, law is used to resolve disputes. different people have different ways of thinking and behaving; therefore altercation and disagreement are unavoidable in their communication. without law, it is hard to resolve these disputes in a reasonable way. abood and brushhood (1997:1) said, “it is a framework or process by which people in a society can resolve their disputes and problems in a way that does not involve force and consistently yields results that are acceptable to most members of the society.” finally, law serves to maintain the present status in certain aspects of society and facilitate orderly change. 2.2 language and law language and law are closely connected. liu weiming, the professor of northwest university of political science or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (amendment i, the constitution of the united states of america) in the amendment, specific and exact expressions are used to clarify the scope of laws which shouldnt be made by the congress: laws establishing religion or prohibiting the free exercise of religion, laws abridging the freedom of speech or press, and laws abridging peoples right to peaceful assemble and to petition the government on precision and vagueness of legal english 8 for a redress of grievances. similar to legislative language, judicial language also has to be precise. since judicial work is directly connected with concerned parties destinies, especially in criminal cases; consequently judicial language must be very precise in order to avoid any possible ambiguity or misunderstanding. precision of legal english mainly lies at the lexical and syntactic level. at each level, some linguistic techniques are utilized to achieve precision. 3.1 precision at the lexical level vocabulary is the basis of a language. without grammar, very little can be conveyed, while without vocabulary, nothing can be conveyed. precision of legal english is largely due to the exactness of legal words. words are of central importance for lawmakers and lawyers because words occupy their attention in the drafting and interpretation of statutes, wills, contracts, and other legal documents. other specialists, such as scientists, engineers and surgeons are also concerned in part with words, but not to the extent that lawmakers and lawyers are. to achieve precision, they frequently adopt terms of art, archaic words, coordination of synonyms or near-synonyms and other useful linguistic techniques in their work. 3.1.1 frequent use of terms of art a term of art is a technical word with a specific meaning. david mellinkoff (1960:16) said, “every specialty has its terms of art, whether it be burlesque (bump, grind), horsemanship (curb bit, snaffle bit ), or the law.” using terms of art is one of the effective ways employed by law draftsmen to achieve precision. in legal english, terms of art can be classified into two groups: quasi-legal terms and legal terms. quasi-legal terms refer to those common words, which are frequently used in legal english and are used not for their common meaning, but for the specific legal meaning. for example, the common meaning of exhibit is the act or an instance of exhibiting, but in legal sense, it means something, such as a document, formally introduced as evidence in court. the most frequently used quasi-legal terms are: avoid (to make void), damages (the compensation sought for a loss), discovery (disclosure of information by the opposing party in a law suit), instrument (a formal legal document), remove (to transfer to another court), bill (a draft of a proposed law presented for approval to a legislative body) and so on. there are a large number of quasi-legal terms deriving from common words but 中南民族大学硕士学位论文 9 with quite different meanings. they may possess a variety of meanings when used in common english, but when used in legal english their meanings are definite and specific; consequently, ambiguity can be avoided. legal terms are those peculiar to law, which are only or mostly used in legal documents. for example, tort is only used in the legal register, and has an exact meaning, any wrongly act, damage, or injury done willfully, negligently, or in circumstances involving liability, but not involving breach of contract, for which a civil suit can be brought. the following are some terms of art that are of most frequent use in legal english: certiorari (a writ from a higher court to a lower one requesting a transcript of the proceedings of a case for revi