Legal English as a Language Variety.doc

重庆师范大学硕士学位论文 Chapter 4 Legal English as a Language VarietyChapter 4 Legal English as a Language VarietyThis chapter, firstly, is devoted to analyzing the three contextual variables of legal English so as to account for the causes of its foregrounded linguistic features, and then illustrates the general features of legal English as a language variety.4.1 Language VarietiesLanguage is in no case homogeneous. When language is used, it is used in a certain context. What gets said and how it gets said is always dictated by a variety of situations. Some situations seem to depend generally and fairly consistently on some regular sets of language features, so that distinctive varieties of language occur. (Xu Youzhi, 2005: 25) The situational varieties of language can be divided into two main kinds: dialects and registers. Dialects are language variations associated with different users of language, which can be subcategorized in terms of individual, temporal, regional, social aspects. Registers are language variations associated with the different use to which language is put. It is not language users but the occasions when language is used that these language varieties depend on. Halliday (1964) defines register as “functional variety of language” which is the language variation because of its context of situation. Any register is the outcome of the organic integration of the three variables of context of situation: field of discourse, mode of discourse and tenor of discourse.The concurrence of the three contextual variables produces distinctive language varieties (registers) which conform to their respective types of situation. According to the theories of SFG, once getting into context, a language will be filtrated with the three variables of context of situation which thereby produces a variety of language in use (register) with three corresponding qualities (features) of language: the degree of speciality, the level of formality and the form of manifestation (spoken or written). These qualities show the stylistic features of this language variety at three linguistic levels: graphological or phonological, lexical or grammatical and semantic.According to the London School, a language variety is a set of formal and/or substantial features that correlates regularly with a particular type of socio-situational features. So, situations play a crucial role in the formation of a language variety. As for a text of a register, the three contextual variables are responsible for the linguistic features of the text, as Halliday and Hasan state:The linguistic features which are typically associated with a configuration of situational features with particular values of the field, mode and tenor constitute a REGISTER. The more specifically we can characterize the context of situation, the more specifically we can predict the properties of a text in that situation. (1976: 22)So, in order to get a clear understanding of a text of language variety, it is necessary for its readers to acquaint themselves with the specific context of situation which determines the style markers of this variety.4.2 Legal English as a Language VarietyAs a language variety, legal English is oriented not towards language users but towards language use and focuses on language functions. So, legal English belongs to categories of register and is the product of the joint efforts of the three variables of its context of situation.4.2.1 Field of Legal EnglishThe field of discourse, mainly concerned with the content of the text, refers to the type of social activity that the language user is engaged in doing in the situation in which the text has occurred. In other words, it shows what the text is about. The field primarily deals with the subject-matters and topics of a text and determinesthe answers of such questions: whether the subject matter of a text is literature or non-literature; whether the topic of a text is technical or non-technical; whether the content of a text is professional or non-professional. Field of discourse can be more or less restricted in language. Generally, technical fields have their own special vocabulary and favourite grammatical patterns. So, field of discourse determines the degree of languages speciality of a text. Legal English, as its name suggests, primarily deals with subject-matters or topics of law. It is the linguistic reflection of the purposive role of the law composers and deals with various types of social activities concerned with law, including legislation, judicature and the enforcement of laws.Law is the product with the initiation of state and is the symbol of power. In the New Oxford Dictionary of English (2001), Judy Pearsall defines law as “the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.” Sha Lijin and Lin Pin also state that “In modern societies, some authorized body, such as legislature or court, makes the law. It is backed by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.” (1991: 406) So, law is the embodiment of the will of the dominant class in a country because only the class(es) or group(s) who are in power in a country can make laws. Once formulated and then approved by the authority, law can not be altered as one pleases. These qualities of law endow the field of legal English with authoritativeness which is unique in English varieties. Law is a kind of instruments to secure the governance of a country and it is the essential tool to crack down on crimes in order to maintain a harmonious, orderly, relatively stable society. Law can protect peoples legitimate interests and rights. Law can resolve disputes in peoples communication. So, law means rights and obligations, remedies and penalties, and even life and death, all of which are quite serious topics in peoples daily life. The functions of law determine the seriousness of the field of legal English. Besides, like English for science and technology, medical English, commercial English, financial English, advertising English, etc, legal English belongs to ESP (English for Specific Purposes), of which the field of discourse is confessedly non-literary and technical. Although law penetrates every corner of society and plays an important role in peoples social communication, it gets acquainted only by judges, lawyers and lawmen and it is highly special for ordinary people. In other words, “the language of the law is used strictly in special-purpose communication between specialists, thus excluding communication between lawyers and non-lawyers” (Susan Sarcevic, 1997: 9), which means it is not the job of ordinary people but that of the legal professionals (judges and lawyers) to scrutinize and interpret the law. So the field of legal English is highly technical and professional.The qualities (authoritativeness, seriousness and professionalism) of the field of legal English determine that the language of legal English is quite formal and extremely restricted. 4.2.2 Tenor of Legal English The tenor can be divided into two subtypes: personal and functional. Personal tenor means the linguistic reflection of personal relationships between addressor and addressee, and functional tenor refers to what the language user is trying to do with language for /to his or her addressee (s). (Gregory & Carrol, 1978: 53) Personal tenor involves the relationship between participants in the situation, their roles and status and is concerned with the degrees of formality of language used which refers to the way in which the style of language will vary in appropriateness according to the social context: the occasion and the relationship between addresser (s) and addressee (s). (Xu Youzhi, 2005: 74) In actual communication, addressers (writers/speakers) and addressees (readers/listeners) are generally conscious of their respective roles and status, and are aware of the difference in personal tenor between formal (solemn, serious, impersonal, stiff, polite, etc) on the one side and informal (unceremonious, relaxed, friendly, rude, etc) on the other. In his stylistic monograph The Five Clocks (1962), Martin Joos has presented an efficient way to investigate degrees of formality in which he describes the range of formality as five levels: frozen, formal, consultative, casual, and intimate. The degrees of formality are a continuum in which any speech event can find its corresponding point. Degrees of formality are closely related to certain linguistic features. Formal varieties and informal varieties are distinctive in terms of main language levels, such as vocabulary, phonology, syntax and semantics. Functional tenor is concerned with the intension of the user in using the language, such as instruction, evaluation, persuasion, amusement, information, etc.Although the sub-types of legal English are various, they share the same tenor of discourse. As far as personal tenor is concerned, it is highly formal and even dignified, which is determined by the nature of law. As mentioned above, law is the symbol of power. The composers of statutes, decrees, legal provisions and regulations have the absolutely dominating status over ordinary people (readers of the laws), which means the readers must act on what the composers write. Because law means rights and obligations, remedies and penalties and even life and death, law closely relates to everyones immediate or vital interests so that the participant relations are most distant and their attitudes are most serious and formal. Even in some cases (economic contracts, commodity warranty and deeds of trust) where the participants have equal status and in some cases (wills and testaments) where the participants have intimate relationship, the seriousness of law makes the relationship between them extreme formal. In terms of functional tenor, legal documents are concerned with imposing of obligations and conferring of rights. On the one hand, laws are made to regulate peoples conducts, and consequently laws can crack down on crimes, to protect peoples legitimate interests and rights and to resolve disputes in peoples communication; on the other hand, laws can undoubtedly afford information, for instance, an economic contract can provide the parties involved with the correct answers of the following questions: what they can get, how they should do, what obligations they should take, etc. So, legal English has two predominant functions: regulatory and informative. The two functions require the linguistic expression of legal English should be quite formal and be as precise as possible in order to avoid any misinterpretation.4.2.3 Mode of Legal English The mode is the linguistic reflection of the relationship that the language user has to the medium of communication, which has three main kinds: written, spoken and audiovisual. All legal documents are recorded in a written form. Though, for instance, court trial is conducted in spoken form, the language used at court is written to be read as if not spoken and shares much with the characteristics of written legal documents, which is the reason why the study of this thesis focuses only on the legal documents.To sum up, the joint action of the three contextual variables (the authoritative, serious and professional field, the extreme formal tenor and the written form) makes legal English a variety of high formality, which equals Joos frozen style. In such a highly situation-tied language variety for special purpose, the text of legal English is formulated in a special language (the language of the law) which is subject to lexical, syntactic and semantic rules. The texts of legal English therefore possess unique linguistic features which differentiate them from those of other English varieties such as advertising English, English for science and technology, medical English, etc.4.3 Some General Linguistic Features of Legal English TextsThe specific context of situation makes legal English a language variety of frozen style. Legal English texts have three general linguistic features: accuracy and preciseness, professionalism and standardization, and consistency and identity. 4.3.1 Accuracy and PrecisenessAccuracy and preciseness means that the meaning of legal English texts should be definitely and clearly expressed without any possible ambiguity. Accuracy and preciseness is the soul of legal language. It is the most remarkable linguistic features of legal English and is the basis and prerequisite of its other linguistic features. As mentioned above, law means rights and obligations, remedies and penalties, and even life and death, so in legal affairs, the people with malicious intensions will make use of any possibility to shirk responsibilities or obligations, which will cause legal disputes or serious legal consequences. Henry Weihofen, an American professor of law, states: The lawyer must be more precise in his writing than almost anyone else. Most writers can expect their work to be read in good faith, that is, with an honest desire to understand what was meant. But the lawyer must write in constant fear of what we might call the reader in bad faith, the man looking for loopholes I the contract so as to avoid liability for his failure to perform, the disappointed heir who wants the will read in a way that would defeat the testators intention, the criminal defendant who wants the statute interpreted so as to cover his act, and all the others who will want to twist the meaning of words for their own ends. (Li Kexin & Zhang Xinhong, 2006: 201-202)So, while composing legal documents, legal composers should ensure that the linguistic expression of their legal documents should be strictly precise and completely independent, as Xu Youzhi illustrates: In order to ensure that a document says exactly what it is meant to say, and leaves no chance for misinterpretation, composers of the documents will take the greatest pains to make it communicate just one set of meanings and avoid any possible ambiguity. Owing to the composers reliance on established forms and their reluctance to adopt new and untested modes of expression, and owing to some historical reasons, legal English appears extremely conservative and presents some striking oddities in form and wording. (Xu Youzhi, 2005: 201)The authoritativeness and seriousness of law determines that the most important thing of legal language is objective reality and that the expression of legal documents should be exact and strict, which completely depends on the denotations or literal meanings of words or phrases. In legal documents, there are no occasions for a composer to convey his or her emotions, to heighten an atmosphere, to create vivid images, etc. The rhetorical devices, whether schemes such as alliteration and parallelism or tropes such as metaphor, metonymy, synecdoche, oxymoron, paradox, hyperbole, litotes, etc, are provided with marked emotional color and subjective imagination, and their interpretation depends more on the connotations rather than the denotations or literal meanings of words or phrases. These qualities of rhetorical devices are completely contrary to requirements of accuracy and preciseness, which decides their rarity in legal language. Besides, the accuracy and preciseness requires that the composers of legal documents never use the words/phrases for approximation such as about, and the like, and so on, etc, and they often utilize an elaborate and meticulous way to deal with the wording and phrasing of legal documents so as to be unassailable.4.3.2 Professionalism and StandardizationAccording to the field of legal English, texts of Legal documents are non-literary and technical. Professionalism means that language used in legal documents should conform to the legal profession. The legal profession has long tradition. Over the years, lawyers have been doing basically the same thingdrawing up statues, making various kinds of laws, contracting agreements, drafting lease, wills and so on. For each species of transaction, there have developed sets of formulas. These established formulas have proved to be adequate and effective in getting the job done and have stood the test of time in courts. So lawyers just copy the established formulas rather than run the risk of adopting new and untested modes of expression. This leads to the peculiar stability and extreme linguistic conservatism of legal English. (Xue Hanrong, 2003: 237) The established formula, peculiar stability and extreme linguistic conservatism determine the standardized language of legal English texts. Standardization mainly means that texts of legal documents use not the idioms and slang but the standard written language approved by the government and the linguistic expression of these texts should adjust to the basic patterns and conventions of legal profession. So, the standardization is the further embodiment of profession. Besides, legal English is confessedly non-literary. The most important characteristic of literary language is linguistic foregroundingslinguistic features which stand out from the background by either breaking the accepted linguistic rule (qualitative deviation) or enforcing the rule by repetition or parallelism at various linguistic levels (quantitative deviation or overregularity) to achieve special effects. Therefore, situation and the stylistic features of literary texts are not normally standardized. On the contrary, in order to be innovative and attractive, good literature (especially poetry) is often described as avoiding the trodden paths of conventional expression. The linguistic expres