No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
Chapter 5. Making legal language clear to legal laypersons
Abstract
It is widely accepted that the legal sub-language-the language of the written law, court discussions, and legal documents-needs rephrasing in order to make it understandable to legal laypersons. Adler (2012) holds that this is possible: legal texts can be rephrased in plain language (rather than in "legalese"). The features that need rephrasing in order to make the legal language understandable to legal laypersons concern both the rich technical vocabulary of the legal sub-language and its syntactic complexity. There is, moreover, a third feature that makes the legal sub-language impenetrable for laypersons-implicit intertextual and interdiscursive links. It is the combination of these three features-the rich technical vocabulary, the syntactic complexity, and implicit intertextuality (intertextual links presented without lucid reference to their explanations)-that makes the legal sub-language impenetrable. The legal sub-language is, naturally, the language used by legal experts in order to communicate with one another. Obviously, legal experts are supposed to know the relevant legal background knowledge of legal texts they work with; therefore, like other human communicators, authors of legal texts imply legal background knowledge, including the background knowledge relevant to their messages, rather than present it explicitly. The point of this analysis is that it is this implied professional knowledge which makes it hard for legal laypersons to understand legal texts.
... realize that their language is too complicated for the average reader to understand (Azuelos-Atias, 2018). Although this hypothesis appears to be supported by previous findings that show an effect of features such as prior knowledge and reading skill on the processing of specialized texts (Cain et al., 2004;Kendeou & Van Den Broek, 2007;Long et al., 2008;Noordman & Vonk, 1992;Ozuru et al., 2009), recent evidence in legal contexts has undercut this hypothesis. ...
Over the last 50 years, there have been efforts on behalf of the U.S. government to simplify legal documents for society at large. However, there has been no systematic evaluation of how effective these efforts—collectively referred to as the “plain-language movement”—have been. Here we report the results of a large-scale longitudinal corpus analysis (n ≈ 225 million words), in which we compared every law passed by congress with a comparably sized sample of English texts from four different baseline genres published during approximately the same time period. We also compared the entirety of the U.S. Code (the official compilation of all federal legislation currently in force) with a large sample of recently published texts from six baseline genres of English. We found that laws remain laden with features associated with psycholinguistic complexity—including center-embedding, passive voice, low-frequency jargon, capitalization, and sentence length—relative to the baseline genres of English, and that the prevalence of most of these features has not meaningfully declined since the initial onset of the plain-language efforts. These findings suggest top-down efforts to simplify legal texts have thus far remained largely ineffectual, despite the apparent tractability of these changes, and call into question the coherence and legitimacy of legal doctrines whose validity rests on the notion of laws being easily interpretable by laypeople.
This article defines Legal Linguistics (also known as Jurilinguistics) and Forensic Linguistics as two distinct yet complementary applied linguistic subdisciplines that play unique roles in Language and Law. Our exploration is based on how these two
disciplines, each with its own set of contributions, complement each other. After providing an introductory historical context explaining the roots and development of the field, the article is divided into two parts. The first part defines Legal Linguistics as the legally relevant scientific study of linguistic and communicative processes in
the field of law. The focus is thus generally on the linguistic nature of the law and on how linguistic concepts of language, communication, and discourse may support efficient formulation and interpretation as well as socially just interaction in the
field of law. The second part defines Forensic Linguistics as the scientific study of language as evidence in crime. The article explains its origins and covers key areas of linguistic expertise, such as trademark disputes, speaker identification, authorship identification, plagiarism detection, and language crimes, including those committed online.
In the twenty-first century, the increase in digitalization has been shaping learning and professional practice and has led to a great need for a new ‘cultural-technical skill’ in the digital age: a competent use of online information. This skillset plays an increasingly central role in several professions. This is particularly evident in the professional education of legal, and medical trainees and trainee teachers - professions for which evidence-based decision making and acting are particularly essential in practice. Increases in everyday Internet use, however, are not automatically accompanied by increases in corresponding skills in competently dealing with digital information. The aim of the BRIDGE research project, of which an overview is provided here, is therefore to assess and effectively promote these skills among young professionals in the domains of law, medicine, and teaching using a newly developed digital performance assessment and training. This paper aims to provide a conceptual framework of and empirical insights into the skillset baseline and thus a basis for the targeted development of training measures. In this context, the relevance of this skillset regarding the professional demands perceived by young professionals as well as its promotion in their university studies is also presented. Overall, the study participants reported that all facets of the presented skillset are relevant to their academic studies, with little difference between the three domains. A discrepancy between relevance and promotion of the skillset is shown, with promotion reported low to moderate in all three domains differing between the skill facets. In terms of the processed task the participants overall performed well, with differences depending on the domain and skill facet. These and further results are discussed in terms of the implications for educational and professional practice.
This article examines problems encountered in revising legal academic texts translated into English or written in English as a Lingua Franca (ELF) by legal scholars themselves. It starts by discussing globalisation and the rise of ELF in general and specifically in law and academia, considering the importance of publishing in English for individuals and academic journals. This is followed by a presentation of the Polish perspective on globalisation, as well as the challenges of revising academic legal writing. Specific examples are provided from the author’s professional experience in revising such texts. Two error-prone areas were selected: fixed phrases (including Latin) and legal terminology. Results from several corpora of English are used to justify corrections. Conclusions concern the considerable power and responsibility of revisers, as well as the need for greater awareness of the pitfalls of legal translation and better MT literacy among legal scholars.
This essay examines the filmed mock trial A Game of War (2021) by TWIIID, a Flemish legal soundboard for the arts, and its contribution to the discourse on appropriation art and the parody exception in copyright law. By focusing on the case of the (mock) trial between Samson Kambalu and Gianfranco Sanguinetti, the article delves into the intricate legal and artistic aspects within this specific context. While not comprehensive of the entire contemporary discourse on copyright and appropriation art, this case serves as a microcosm for examining and understanding major themes and issues. The essay argues that A Game of War functions as both a re-enactment and pre-enactment, acknowledging the limitations of conventional jurisdiction while closely adhering to established legal precedents. In doing so, the film highlights the temporal fluidity of p(re)enactments and the dynamic nature of temporality in law and performance. The explicit intertwining of past, present, and future emerges as a shared characteristic of both (p)re-enactments like A Game of War and court trials, wherein the past is reconstructed and potential futures are envisioned within the ‘now’ of the trial. Furthermore, by employing artistic methodologies such as p(re)enactments to enrich the imaginative capacities of the legal realm in the context of appropriation art and copyright issues, A Game of War compellingly expresses the potential for art and law to mutually inform and enhance one another. Consequently, the film opens new avenues for dialogue and fosters a deeper understanding of the intricate interplay between artistic expression and the complex web of legal frameworks.
Sprache fungiert als Sonderhorizont der Konversierenden, Rechtssprache als Sonderhorizont rechtssprachlich Konversierender. Bei unterschiedlichem Sonderhorizont scheitert Kommunikation. Das Gelingen von Kommunikation ist daher insbesondere im grenzüberschreitenden Kontext sehr schwierig, da die Rechtssprache außerdem keine herkömmliche Fachsprache ist, derer man sich – allenfalls nach Übersetzung – weltweit bedienen könnte. Jede Rechtsordnung verwendet vielmehr ihre eigene Rechtssprache als gesonderte Fachsprache, die vom nationalen Rechtskontext geprägt ist. Johannes Landbrecht analysiert, wie Kommunikation zum Recht trotzdem gelingen kann. [OPEN ACCESS Publication supported by Swiss National Science Foundation, see "https://www.mohrsiebeck.com/buch/rechtssprachliche-kommunikation-9783161622052?no_cache=1".]
In this chapter, I draw up some contours of what mediation of specialized knowledge looks like from the point of view of text-based studies of Languages for Specific Purposes (LSP). The basis is the Knowledge Communication Approach.Central in the chapter is the two-sided nature of knowledge to be expressed in LSP texts, i.e., knowledge as being inherently individual and social at the same time. The ensuing characteristic of knowledge asymmetry between what different individuals involved in LSP communication and especially in mediation of expert knowledge know is generally central in the book and functions as interface between this chapter and the book.The two-sidedness of knowledge has repercussions for the requirements of research into LSP as text-based studies of the communication of specialized knowledge. It is important not to lose track of the role of the individual knower, and hence we need basic theories that may help us see specialized communication not only at the level of the different disciplines, but also at the level of interacting individuals, with a special interest in mediation of knowledge. The chapter consists of a discussion of the role of the knowledge of individuals and its communication when developing (social) disciplinary knowledge and when mediating such knowledge in individual settings. Central basics is Tomasello’s idea of shared intentionality as the basic motor behind generating interpersonal understanding. Following the development of these basic tenets, focus is upon demonstrating by way of concrete examples how they influence the way we investigate and conceptualize communication and mediation of specialized knowledge, drawing upon some of our previous work in this field.KeywordsSpecialized knowledgeLSP communicationTransdiscursive knowledge communicationMediationKnowledge domainKnowledge asymmetryCommunicative settingLanguageLSP
Despite their ever-increasing presence in everyday life, contracts remain notoriously inaccessible to laypeople. Why? Here, a corpus analysis (n ≈10 million words) revealed that contracts contain startlingly high proportions of certain difficult-to-process features–including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization–relative to nine other baseline genres of written and spoken English. Two experiments (N=184) further revealed that excerpts containing these features were recalled and comprehended at lower rates than excerpts without these features, even for experienced readers, and that center-embedded clauses inhibited recall more-so than other features. These findings (a) undermine the specialized concepts account of legal theory, according to which law is a system built upon expert knowledge of technical concepts; (b) suggest such processing difficulties result largely from working-memory limitations imposed by long-distance syntactic dependencies (i.e., poor writing) as opposed to a mere lack of specialized legal knowledge; and (c) suggest editing out problematic features of legal texts would be tractable and beneficial for society at-large.
This paper presents the results of an analysis of the English modals CAN and MAY in four text types covering the domain of Contract Law. These results show a distinct difference between the two modals, which is interesting because the meaning and use of CAN and MAY is generally taken to be more blurred than it is the case here. The meaning and use of the modals is analysed and compared on the basis of logico-semantic and pragmatic parameters briefly introduced in the paper. The analysis is part of a major contrastive analysis of the meaning and use of the Danish and English modals.
This article includes a research-based checklist that has been very useful for teachers and editors.
This paper considers the act of verbal threatening. I first examine what constitutes a verbal threat, concluding that it involves conveying both the intention to perform an act that the addressee will view unfavourably and the intention to intimidate the addressee. I then compare threatening to promising and warning, and I examine the ways in which a speaker may issue a threat, given that one can never guarantee success in threatening. Finally, I look at the multitude of factors that must be considered if one is to conclude that a serious threat was made.
This is chapter 1 of The Language of Statutes: Laws and their Interpretation (University of Chicago Press (2010). The chapter situates debate about statutory interpretation as a battle between those who are concerned that judges, especially common law judges, have too much interpretive discretion, and those who would prefer that judges play a more significant role in the development of the law. At the root of the problem is the extent to which the human language faculty is able to produce rules of law that are at once “minute” and “flexible”, as Cardozo put it. This chapter illustrates communicative breakdowns in statutory language, and discusses their implications. It further outlines the argument of the book, in which legislative intent plays a significant role in interpretation, both empirically and normatively. At the same time, however, competing values - ranging from fair notice to dynamism to formalism - contribute substantially to interpretative decisions. Weighting these values and choosing among them is too subjective to create a theory that will produce consistent results in statutory cases. For the most part, however, judges and others limit themselves to relevant considerations. Fortunately, when proper base rates are taken into account, the set of statutory cases that are likely to produce results that more reflect the personal and political value of the decision maker than a legally-based result are few. Thus, we are left with a system in which a constant flow of uncertainty at the margins is a given, but which generally works well enough to sustain rule of law values.
This is the first extended discussion of preferred interpretation in language understanding, integrating much of the best research in linguistic pragmatics from the last two decades.
When we speak, we mean more than we say. In this book Stephen C. Levinson explains some general processes that underlie presumptions in communication. This is the first extended discussion of preferred interpretation in language understanding, integrating much of the best research in linguistic pragmatics from the last two decades. Levinson outlines a theory of presumptive meanings, or preferred interpretations, governing the use of language, building on the idea of implicature developed by the philosopher H.P. Grice. Some of the indirect information carried by speech is presumed by default because it is carried by general principles, rather than inferred from specific assumptions about intention and context. Levinson examines this class of general pragmatic inferences in detail, showing how they apply to a wide range of linguistic constructions. This approach has radical consequences for how we think about language and communication.
Bradford Books imprint
Cambridge Core - Law: General Interest - Modern Legal Drafting - by Peter Butt
That legal texts are generally considered difficult to read and understand stems from the law's societal functions of control and regulation. In order to provide a firm foundation for legal decision-making processes, which have to be systematic and just, the text of the law needs to be clear, explicit, and precise. It is only to be expected that such strict conditions will impose equally strict requirements on the design of the language of legal texts. Legal syntax is distinctly idiosyncratic in terms of both the structure and arrangement of the principal sentence elements. When we look at legal language above the level of the sentence, we are concerned with the level of discourse. This article addresses the language of legal texts with special reference to their grammar and structure, focusing on written legal texts as materializations of the language of the legal code, a term that is here used to refer to the law as embraced in legal statutes. As far as legal language is concerned, the article considers acts of the British Parliament.
A discipline that might eventually become known as 'plain language studies' is beginning to emerge through the collaboration of individual plain language proponents (plainers for short). In 2008, the two main international umbrella organizations (Clarity and PLAIN) and the Center for Plain Language in the United States set up a joint working group to develop what they hoped would eventually become internationally recognized professional standards and accreditation. Law is only one aspect of the plain legal language movement; some plainers promote plain medicine, others plain government, plain technical writing, plain finance, and plain scientific papers. Some legal plainers are linguists, writers, editors, or legal translators. Some are practising lawyers who write plainly for their clients. This article provides a brief history of the plain legal language movement, discusses the advantages and disadvantages of using plain language to write legal documents, and examines attitudes to plain legal language. Finally, it considers plain language drafting techniques and presents an example of traditional writing made plain.
The abstract for this document is available on CSA Illumina.To view the Abstract, click the Abstract button above the document title.
Man collects experiences by observing changes in his surroundings. However, the most interesting and instructive changes for him are those that he can influence through his own intervention and deliberate movements. As regards such changes he need not remain purely passive, he can actively adapt them to his own requirements; besides, they are for him of the highest economic, practical and intellectual importance. That is what makes experiments so valuable. If we observe how a child in the first stages of independence examines the sensitivity of his own limbs, how he is surprised by his mirror image or by his shadow in sunlight and tries out how they behave by making movements, how he practises hitting a target we are driven to conclude that man has an innate tendency towards experiment, and that without much looking about he finds within himself the basic experimental method of variation. If the adult temporarily loses these treasures so that he must as it were discover them afresh, the explanation is that his social upbringing narrows his circle of interests and confines him to it while at the same time he acquires a large number of ready opinions, not to say prejudices, that he supposes not to be in need of examination.
In this article I discuss one of the linguistic means which enables speakers to represent content in their utterances without
expressing it explicitly. I will argue, in line withWilson and Sperber, that the logical form of the argument encoded by an utterance
(however fragmentarily or incompletely) is sufficient as a cue directing the hearers to the implicit content of the speaker’s meaning. I
will suggest that the logical form of the encoded argument enables the speaker to represent in the utterance certain contextual
implicatures as a hidden layer of the text. I will illustrate this by showing how these means are used for embedding contextual
implicatures by analyzing a text of an Israeli court file. This analysis can be easily generalized to other legal systems and
argumentative texts.
A Pragmatic Analysis of Legal Proofs of Criminal Intent is a detailed investigation of proofs of criminal intent in Israeli courtrooms. The book analyses linguistic, pragmatic, interpretative and argumentative strategies used by Israeli lawyers and judges in order to examine the defendant’s intention. There can be no doubt that this subject is worthy of a thorough investigation. A person’s intention is a psychological phenomenon and therefore, unless the defendant chooses to confess his intent, it cannot be proven directly – either by evidence or by witnesses’ testimonies. The defendant’s intention must be inferred usually from the overall circumstances of the case; verbal and situational contexts, cultural and ideological assumptions and implicatures should be taken into account. The linguistic analysis of these inferences presented here is necessarily comprehensive: it requires consideration of a variety of theoretical frameworks including speech act theory, discourse analysis, argumentation theory, polyphony theory and text linguistics.
Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople have direct access to the law? The Plain English Movement (PEM) has long promoted the use of plain language in legal writing as the way to demystify the law, and many governments and private corporations have expended significant resources on drafting legislation and legal documents in plain language. This article argues that the PEM has exaggerated the capacity of plain language to render the law intelligible to the non-lawyer, obscuring the deeper question of legal complexity by focusing solely on language and style. Using the law effectively requires expertise that goes far beyond understanding the meaning of the words used to communicate it: certain complex aspects of the law cannot be eliminated by mere simplification of language, and this article demonstrates that other specialized skills are required over and above the ability to penetrate technical language. The paradigmatic illustration of the need for such skills is litigation.
This article is based on a lecture on plain legal language delivered in Hong Kong in February 2002. The author provides an overview of the movement towards using plain language in legal documents, and discusses certain assumptions made in deciding to use plain legal language. He provides evidence to support the propositions that it is possible to express legal concepts in plain language effectively, that plain legal language can save money, and that judges and clients prefer plain language. Overall, the article provides an introduction to the principles and concepts underlying the plain language movement.
Over the centuries, much has been written about the language of the law. The language of lawyers is archaic and conservative. It is full of Latin and French. It is wordy and redundant, pompous and dull, and either highly precise or maddeningly indeterminate. Perhaps the most interesting suggestion is legal language is a myth, in that it is really just ordinary language with a great deal of technical terminology. Some of these assertions have more than a kernel of truth, others are complete myths, and yet others should be relegated to that status as quickly as possible.
I will suggest, in this article, a possible explanation of the fact that legal language appears incoherent to the general
public. I will present one legal text (an indictment), explaining why it appears incoherent to legal laypersons. I will argue
that the traits making this particular text appear incoherent are, first, that a specialized legal meaning is conveyed implicitly
and, second, that there are no key-words that could direct laypersons to the knowledge making this meaning obvious to legalists.
I will conclude that any legal text having these traits is likely to appear incoherent to the general public and suggest that
the traits making my example appear incoherent might be rather common among the various texts of the various legal systems.
On this suggestion there is no need to assume any causal relation between lawyers’ social interests and the apparent incoherence
of legal language as it entails that this incoherence is inevitable. (I will argue that it is a result of the facts that legal
language is ordinary language used, in the ordinary way, in the special context of the legal discourse.)
KeywordsSpeaker’s meaning–Relevance theory–Logical form–Semiotic group–Legal discourse–Court interpretation–Circumstantial evidence–Key-word
Statutes, judicial opinions, contracts, deeds, and wills profoundly affect our daily lives, but their language tends to be often nearly impossible to understand. In this lively history of legal language, Peter Tiersma slices through the thicket of legalese, explaining where it comes from, why lawyers continue to cling to it, and why it's doesn't have to be an inevitable feature of our legal system. "Legal Language will resonate with lawyers . . . and any non-lawyer who has waded through legal documents, or has tuned in to the latest trial on Court TV."âCarmie D. Boccuzzi, Jr., Boston Book Review "[A] masterful, highly readable, and enjoyable book. . . . Legal Language is truly a fun book to read."âDavid Schultz, Law and Politics Book Review
The first, theoretical part of this paper sketches a framework for phonological encoding in which the speaker successively generates phonological syllables in connected speech. The final stage of this process, phonetic encoding, consists of accessing articulatory gestural scores for each of these syllables in a "mental syllabary". The second, experimental part studies various predictions derived from this theory. The main finding is a syllable frequency effect: words ending in a high-frequent syllable are named faster than words ending in a low-frequent syllable. As predicted, this syllable frequency effect is independent of and additive to the effect of word frequency on naming latency. The effect, moreover, is not due to the complexity of the word-final syllable. In the General Discussion, the syllabary model is further elaborated with respect to phonological underspecification and activation spreading. Alternative accounts of the empirical findings in terms of core syllables and demisyllables are considered.
Language of the Law and Legal Language
- Kurzon
Kurzon, Dennis. 1989. "Language of the Law and Legal Language". In Special Language: from
Humans Thinking to Thinking Machines, eds. by Christer Laurén and Marianne Nordman,
283-290. Clevedon/Philadelphia: Multilingual Matters.
On Negligence in Criminal Law
- Kremnitzer
The Modes of Action of Jews in the Muslim Public Sphere in Morocco: Linguistic and Pragmatic Analysis of Legal Texts
- Azuelos-Atias
Azuelos-Atias, Sol., and Dror, Judith. In press. "The Modes of Action of Jews in the Muslim Public
Sphere in Morocco: Linguistic and Pragmatic Analysis of Legal Texts". Peamim 148-149:
9-31 [in Hebrew].
Interpreting Law: Text Understanding – Text Application – Working with Texts
- Busse
Busse, Dietrich. 2008. "Interpreting Law: Text Understanding -Text Application -Working
with Texts". In Law and Language. Theory and Society, eds. by Dieter Stein, Alexander Lorz,
Frances Olsen, 239-266. Düsseldorf: Düsseldorf University Press.
An Approach to the Linguistic Study of Legal Documents
- Swales
Swales, John M., and Bhatia Vijay K. (1983). "An Approach to the Linguistic Study of Legal Documents". Fachsprache, 5(3): 98-108.
Generic Conflicts in Academic Discourse". In Genre Studies in English for Academic Purposes I
- Vijay Bhatia
Bhatia, Vijay, K. 1998. "Generic Conflicts in Academic Discourse". In Genre Studies in English
for Academic Purposes I, eds. By Fortanet, S. Posteguillo, J. C. Palmer, and J. F. Coll, 15-28.
Castellon, Spain: Universitat Jaume I-Publicacions.
Some Syntactic Properties of English Law Language
- Marita Gustafsson
Gustafsson, Marita. 1975. Some Syntactic Properties of English Law Language. Publication No. 4,
Department of English, Turku: University of Turku.
- Mordechai Kremnitzer
Kremnitzer, Mordechai. 1994. "On Negligence in Criminal Law". Mishpatim 24: 90-93 [in
Hebrew].
- Peter M Tiersma
Tiersma, Peter. M. 2001. "Textualizing the Law". Forensic Linguistics. 8(2): 73-92.