Vague LanguageIn English Legal Documents.doc

Vague LanguageIn English Legal Documents ACKOWLEDGEMENT First and foremost, I would like to avail myself of this opportunity to express my heartfelt gratitude to Professor Wu Xiaoyu, my supervisor, who has taken his precious time off from his tight schedule, reading my thesis carefully and offering me constant encouragement, valuable suggestions and enlightening instructions, which contribute to the completion of my thesis. Im also grateful to Professor Huang Yuanshen, Professor Luo Guoliang, Professor Lu Naisheng, Professor Xu Yaqin and all other teachers for their enlightenment in my study. My sincere thanks also go to my roommates and friends who are always ready to offer their enthusiastic assistance and encouragement. Finally, I am greatly indebted to my beloved parents. Their love has been spurring me onward and supporting me through all difficulties. CONTENTSABSTRACT1内容提要3Chapter One Introduction4Chapter Two Vague Language72.1 What is vague language?72.2 Why is language vague?13Chapter Three Features of Law English183.1 Basic requirement for preciseness183.2. Grammatical Features203.2.1 Tendency towards long sentences203.2.2 Wide use of statement-type sentences223.2.3 Preference for complex post-modification in the nominal group233.3 Lexical Features243.3.1 Frequent employment of archaic words and phrases243.3.2 Special use of common words253.4 Semantic Features263.4.1 Preference for lexical repletion to pronoun reference273.4.2 Wide use of parallel phrases293.4.3 Tendency towards meticulous ways of expression29Chapter Four Vague Language in English Legal Documents314.1 Existence of vague language in law English314.2 Causes of vague language in legal documents.334.2.1 Lack of clear-cut boundaries in non-linguistic world;334.2.2 Interpretation of meaning is context-bound344.2.3 Lack of adequate knowledge about law-related behavior354.3 Ways of applying vague language364.3.1 To express indeterminable time and space374.3.2 To express extent and scope which are indeterminable or are not necessarily determined374.3.3 To express frequency and quantity which are difficult or not necessary to describe exactly384.3.4 To express conjectured contents and plots.394.4 Specific functions of vague language in legal documents.394.4.1 Vague expressions can meet the requirement of legislation.394.4.2 Vague expressions can improve the flexibility of legal language.404.4.3 Vague expressions can make language more courteous and euphemistic.414.5 Practices to avoid when people apply vague language in legal documents424.5.1 Inappropriate use of vague multiple-meaning words424.5.2 Inappropriate use of expressions of age and time434.5.3. Vagueness resulting from past participles444.5.4 Vagueness resulting from lack of necessary restrictions45Chapter Five How to Make Use of Vague Language in Legal Documents465.1 Vague language in law English is a source of disputes465.2 How to make use of vague expressions in law English so as to win disputes47Chapter Six Conclusion54ABSTRACTSince China became a member of WTO in 2001, international disputes involving China have greatly increased in number, especially, anti-dumping cases. China is the biggest anti-dumping sufferer in the world. How could China take actions to safeguard its interest? I think making full use of vague language appearing in international law may prove to help gain advantages in settling disputes. In this thesis, I present some basic knowledge about vague language, and analyze application of vague language in legal documents. There are total six chapters.Chapter One is a brief introduction of vague language.In Chapter Two, I draw out my understanding of vague language after introducing different approaches to exploring vague language. In my view, an expression or a word is vague if there is no definite boundary for its application, and its meaning arises from uncertainty of non-linguistic world. Various reasons for vague language are also analyzed.Chapter Three expounds features of English legal documents for the purpose of manifesting the basic requirement for precision from grammatical, lexical and semantic aspects.In Chapter Four, I analyze another way of embodying precision in law English vague language. Causes, application and functions of vague language in legal documents are presented. Some practices to avoid when we apply vague language are also listed.How to make use of vague language in legal documents is discussed in Chapter Five. I introduce a case in which Brazil won by presenting a favorable and convincing interpretation of a vague term. Therefore, we could also take advantage of vague expressions existing in international law to increase the opportunities of winning anti-dumping cases.Chapter Six is a conclusion of the whole thesis. 内容提要自中国于2001年加入世界贸易组织后，中国的卷入的贸易争端日益增多，特别是反倾销案。中国是世界上反倾销案的最大受害国。那么，中国能采取什么行动为自己的利益而斗争呢？本人认为，利用国际法规中的模糊语言，给相关模糊词一个有利的定义，是帮助我方在争端解决中占得上风的一条途径。在本文中，我介绍了有关模糊语言的一些基本知识，分析了模糊语言在法律文件中的运用。本文共有六章。第一章是关于模糊语言的一个简介。第二章，在介绍了研究模糊语言的几种不同途径后，我提出自己的理解。我认为当一个表达方式或一个词语在应用时没有确定的界限，而其含义源于非语言世界的不定性，该表达方式或词语属于模糊语言。本章还分析了模糊语言形成的各种原因。 第三章从语法，词汇和语义方面分析了英语法律文件的语言特色，体现了法律语言的基本要求准确性。第四章，我分析了法律语言准确性的另一体现，即模糊语言。 法律文件中模糊语言的成因，应用和作用在本章都做了分析，同时还列举了在运用模糊语言时的一些操作禁忌。第五章讨论了如何利用法律文件中模糊语言保障我国利益。我介绍了一个国外的案例。在该案中，巴西通过对一个模糊词提出一个有利而又令人信服的含义理解而胜过西班牙。 所以中国也可利用国际法规中出现的模糊词为在反倾销案中获胜增加筹码。第六章是整篇文章的总结。 Chapter One Introduction“Is he - is he a tall man?” “Who shall answer that question?” cried Emma. “My father would say yes; Mr. Knightly, No; and Miss Bates and I, he is just the happy medium.” The above dialogue is extracted from Emma written by Jane Austen. While language is considered to be communicating means people use every day, we can hardly ignore the fact that many of our utterances are relatively vague. Lets consider, for example, the word tall. There is no precise, known height that defines the line between a person who is tall and a person who is not. Why do we use a language in which such words are so prevalent? Why dont we simply adopt as a definition that tall will mean above, say, 6-foot-2? We could even adopt a context-specific definition, saying for example that tall for a newborn means above 15 inches, while tall for a professional basketball player means above 6-foot-10.If any word we use had to be given such a specific definition, there would be a great efficiency loss in communication. And it is obviously easier to communicate when one is allowed to use vague language. Most speakers of English are not particularly aware of the frequent use of vague language (unless it is pointed out to them) and this fact is in itself of interest. It shows that vagueness in communication is part of our taken-for-granted world, and that normally we do not notice it unless it appears inappropriate for example, when someone seems to be deliberately withholding information. This makes vagueness like many other linguistic phenomena, which pass unnoticed until an investigating linguist argues that they are worthy of description. An example is metaphor, which appeared to be an esoteric issue until the publication of Metaphors We Live By (Lakoff and Johnson 1980). In that book, the authors point out that speakers often do not realize that the language they are using is metaphorical. Likewise, experts found out that people often do not realize that the language they are using is vague.There are many different standards regarding the use of language. Clarity and precision maybe are the most important. Hence, people generally believe that vagueness should be avoided. I would like to say that this is rather too simple a view, and likely to be positively misleading as an instruction to those who are learning how to write. Many good writers demonstrate their competence through their use of a certain degree of vagueness that is right for the purpose of their writing. This is the key to understanding that vagueness in language is neither all bad nor all good. What matters is that vague language must be used appropriately.In legal system, the use of language is crucial - because that lawmakers use language to make laws, and courts use language to state their grounds for conferral. Legal language is concerned with the imposition of obligations and conferring of rights. In terms of mode, legal language is mainly recorded in a written form - being essentially a visual language -meant to be scrutinized. Though, for instance, court trial is conducted in spoken form, the language used at court shares much with the characteristics of written legal documents.In this thesis, I confine myself to the language used in written legal documents. In order to ensure that a document says exactly what it is meant to say, and leaves no chance for misinterpretation, composers of the document will take the greatest pains to make it communicate just one set of meanings and avoid any possible ambiguity. But we cannot deny that, owing to some reasons, we need to use vague language in legal documents so as to achieve what we mean to have. It may seem inconsistent that vague language can also serve the purpose of preciseness in legal documents. As a matter of fact, appropriate use of vague language is important to legal documentation and thus deserves more analysis than it has so far received, especially when China now is a member of World Trade Organization (WTO), which provides China with a lot of opportunities of getting involved in international law-making.Awareness of vague expressions appearing in English legal documents will prepare us for disputes arising from international trade, and will grant us the chances of taking advantage of international laws so as to safeguard our national interests. However, the investigation of the vagueness of legal language is quite limited, though we have many scholars who study vague linguistics or legal linguistics. In this thesis, I try to carry out a tentative research concerning vagueness in law English. Chapter Two Vague Language2.1 What is vague language?Interest in vagueness has arisen in a number of disciplines: linguistics, psychology, philosophy, etc. In this chapter I would like to introduce the general notion of vague language by outlining some existing approaches in the three disciplines.The discipline of linguistics Ullmann in an essay entitled Words with blurred edges traced from Plato to Byron a recurrent feeling of the inadequacy of language to express thought, particularly because language is lack of precision. He noted also the converse feeling among poets and creative writers that such vagueness is in fact an advantage. This idea has also been reflected by Wittgenstein who suggests that words are like blurred photographs and adds, Is it even always an advantage to replace an indistinct picture by a sharp one? Isnt the indistinct one often exactly what we need?Ullman goes on to point out another important aspect of vagueness. He notes that: If one looks more closely at this vagueness, one soon discovers that the term is itself rather vague, and ambiguous: the condition it refers to is not a uniform feature but has many aspects and may result from a variety of causes. Some of these are inherent in the very nature of language, whereas others come into play only in special circumstances. Joanna Channell： Vague LanguageHe attributes vagueness to the generic character of the words we use. He says that what words refer to are not single items but classes of things or events bound together by some common element. For example, there is a class of things referred to in English by the term bird, but if we look at it in more detail, we see that some birds are very typically bird(robin), while other birds (ostrich, penguin) do not feel like typical birds and lack some of the central characteristics of birdiness(flying, perching in trees). This inevitably leads to vagueness in the process of communication when one hears the utterance of “bird”. Ullmanns idea that it is language itself that leads to vagueness seems reasonable, but I think he confuses cause and effects. It is the world and people in it that are reflected by, and even necessitate the capacity of language to express vagueness. So, linguistic vagueness is not gratuitous it is caused, like many other observed characteristics of language, by the world in which language is used. Peirce is often considered as the originator of the notion of vagueness in language, although Ullmann brings it forward rather earlier. Peirce was perhaps the first to try to formulate the notion in a rigorous way, as follows: A proposition is vague where there are possible states of things concerning which it is intrinsically uncertain whether, had they been contemplated by the speaker, he would have regarded as excluded or allowed by the proposition. By intrinsically uncertain we mean not uncertain in consequence of any ignorance of the interpreter, but because the speakers habits of language were indeterminate; so that one day he would regard the proposition as excluding, another as admitting, those states of things. Yet this must be understood to have reference to what might be deduced from a perfect knowledge of his state of mind; for it is precisely because these questions never did, or did not frequently, present themselves that his habit remained indeterminate. That is to say, the language system permits speakers to produce utterances without having decided whether certain facts are excluded or allowed by those utterances. Pierce seems to define vagueness in terms of unforeseen contingencies.Vagueness, or as they call it, imprecision, is referred to in a very different context by Crystal and Davy, in an applied linguistics textbook which contains a series of recordings of natural conversations. Analyzing conversational English from the point of view of helping the foreign learner, Crystal and Davy state that lack of precision is one of the most important features of the vocabulary of informal conversation. They put forward the view that vagueness is on a scale related to the formality of the occasion, and that speakers can, if they choose, be more precise. Crystal and Davy give four reasons for vagueness: (a) memory loss the speaker forgets the correct word; (b) the language has no suitable exact word, or the speaker does not know it; (c) the subject of the conversation has no requirement for precision, and an approximation or characterization will do; (d) the choice of a vague item is deliberate to maintain the atmosphere. Crystal and Davy note that speakers mark vagueness by use of certain expressions. Among those cited are: something like that, or something, somewhere, probably, and in a way. Crystal and Davy draw attention to the existence, in spoken English, of three types of device for expressing vagueness: firstly, a set of nouns which express total vagueness, such as thingy, thingummy, thingamajig. They mention Peirce, C.S. Vague, in Dictionary of Philosophy and Psychologythat their spelling is somewhat uncertain, since they are features of the spoken language only. Secondly, Crystal and Davy note a number of generic terms and collective nouns, such as oodles, bags of, heaps of, umpteen, and a touch of. Thirdly, they mention ways of expressing number approximations: a class of thirty odd, there were about/around thirty, and there were getting on for thirty. They note also the existence of prefixes and suffixes which are frequently used to express approximation, when precision is not of primary concern. For examples: That mountain is rather table-like Linguisticswise shes rather cleverThey conclude, Native speakers manipulate their language in this way all the time in informal speech. The almost ubiquitous use of the words and expressions in their book lend support to the contention that vagueness is both intrinsic and important, in the language system. But we can see that Crystal and Davys analysis is based on conversational language, and only concerns language itself without involving objective non-linguistic world when they are investigating reasons for vagueness. David Crystal & Derek Davy: Investigating English StyleThe discipline of psychology Another approach to vagueness is found in the more psychologically-oriented work of Deese. He holds that vagueness of communication is inherent in the structure of our ideas, rather than in the language system: I have been arguing for some years now that the correspondence between the ideas possessed by two individuals who are in communication on a common topic is rather poor, a condition which we ordinarily do not notice because we seldom make explicit attempts to validate a communicated idea against the original. When we do, as in the case of giving directions to someone about how to do something, we are suddenly made aware of the discrepancy that exists between the same idea in the minds of two different people. Ordinary situations demand that we place only the loosest of interpretations upon some linguistic utterance we hear. Deeses argument is that vagueness is not a concept which applies to language, but to the ideas which language expresses. It is obviously difficult to separate out language from the ideas it expresses, but it seems that claiming that it is our ideas which are vague, rather than our language, is another way of attempting to make the analysis of language less complicated, by shifting the problem away from linguistics and into