CHARACTERISTICS OF LEGAL DISCOURSE

Sultan Moulay Slimane university Master cycle
Letters and human sciences faculty Master L.I.T
Beni Mellal S3









CHARACTERISTICS OF LEGAL DISCOURSE
















Realized by: Supervised by: Elmostafa FTOUH Dr. Nourdine Bourima



2009-2010

CONTENTS


CONTENTS 2

INTRODUCTION: 3
- What is a legal discourse exactly ? 3

CHARACTERISTICS OF LEGAL DISCOURSE Here are a few general characteristics of legal language: 4

1. Legal language is conservative; slow to change; formulaic…….4

2. Legal language is definite, precise and technical………………..5

3. Legal language tends to spell things out with painstaking attention to minute detail……………………………………………6

4. Legal language is characterized in all its aspects by formality...6

5-Lengthy and complex sentences 7

6. Many foreign expressions are found in the legal language, especially Latin. 8

CONCUSION 13

Bibliography: 14








INTRODUCTION:
- What is a legal discourse exactly?

Legal discourse is a highly specialized use of language requiring a special set of habits. Obviously, translating legal texts requires painstaking attention to detail and sensitivity to the consequences of subtle contextual changes. This kind of writing is such a departure from our everyday use of language that it is worthwhile to consider some of the specific characteristics of legal language which the translator should keep in mind. Understanding why legal language is the way it is can help the translator to develop a kind of textual model, a sense of how language functions in legal discourse.

we can consider when we compare translated terms from ordinary language to legal language that some differences appears, we will note how sensitive legal terms are to changes in context, the specific "setting" in which they are used. For this reason, dictionaries and lexicons are of limited usefulness in translating legal terms. A good translation requires both a through understanding of the subject under discussion and familiarity with similar models in the target language, the same kind of documents or instruments.






CHARACTERISTICS OF LEGAL DISCOURSE
Here are a few general characteristics of legal language:

1. Legal language is conservative, slow to change to become formulaic.

Legal language is conservative and slow to change because of many reasons; it is considered more formal than every day speech. Language continually changes. Most people today combine data with a singular verb (the data is convincing), use input as a verb (I inputed some data in my computer). Formal and archaic are thus closely related.
A related reason for not modernizing archaic legal text is that specific words and phrases may have received authoritative interpretations over the years. Rewriting statutes and constitutions could wreak havoc with decades of court decisions that have clarified what those texts mean and how they are to be applied.
Underlying legal discourse is the idea that the law is a unified system developing organically from generation to generation. We believe that there is continuity in the law that it has continued to grow and develop in a consistent way throughout a very long tradition. Legal language reflects these conceptions; a keen consciousness of precedent affects every choice of word, every turn of phrase in legal discourse. For this reason, legal language tends to be quite conservative. It is slow to change and tends to retain phrases and formulas that have fallen into disuse in everyday language. Legal language relies heavily on standard formulas of expression because the meaning of these phrases has been sanctified through long use. Our need for legal language to be as reliable and as consistent as possible from generation to generation is of very high priority. This does not mean that legal text cannot be modernized, but it does inspire caution.

2. Legal language is definite, precise and technical.

"The lawmaker sends his message over wide reaches of space, and he hands it down through indefinite stretches of time. These facts require that the lawmaker, above all speakers, transmit his message in a form which cannot miscarry or be lost to view" (Burke Shartel, Our Legal System and How it Works, p.288).

The message must be transmitted in language that is extraordinarily definite and precise. Words must be used in strict accordance with definitions understood by all concerned. Members of the legal profession make careful distinctions between words that seem nearly interchangeable to the layman: the difference between residence and domicile, dictum and decision, privilege and right, may be of little consequence in everyday language, but in a legal context these distinctions are critical. Inevitably a large number of technical words must be used; popular language simply lacks the necessary consistency and precision. "The degree of definiteness (needed for legal discourse) can usually be obtained only by employing technical legal words whose meaning has been brought out and fixed by long experience and use," Burke Shartel explains (p.295). Technical words once we understand their meaning, are not only precise but economical.

3. Legal language tends to spell things out with painstaking attention to minute detail.

In everyday language, we ordinarily try to leave the obvious unsaid; we take it for granted that people know what we are thinking and understand what we mean. In legal discourse, nothing can be taken for granted: every significant detail must be stated explicitly. We often feel that legal language is unnecessarily wordy, even redundant, and we often feel tempted, while translating, to try to reduce the number of words. This can have dangerous consequences, because the apparent redundancy usually is serving and important function

4. Legal language is characterized in all its aspects by formality.

Formality in legal language is the expression of the formality of the legal process itself. Berman and Greiner define formality as follows:
"If . . . a legal solution is sought to ...problems, then time must be taken for deliberate action, for articulate definition of the issue, for a decision which is subject to public scrutiny and which is objective in the sense that It reflects an explicitly personal judgment. These qualities of legal activity may be summed up in the word formality; formality in this sense inheres in all kinds of legal activity, whether it be the making of laws (legislation), the issuing of regulations under the law (administration), the applying of laws to disputes (adjudications), or the making of private arrangements Intended to be legally binding (negotiation of a contract, drawing of a will, etc.)" (The Nature and' Function of the Law, p.26)

5-Lengthy and complex sentences
When we say that a person or group has a particular style, we generally mean that they tend to prefer one method of expression over than other possibilities. One of the other characteristics of the legal discourse can be described as matters of style. Style relates to the fact that given a proposition that you wish to communicate, there are typically many alternative ways in witch you can express the proposition in words.
Of course some styles communicate more clearly than others. Legal discourse doesn’t use a style that communicates all things to the general public. In other case, the stylistic choice is merely a matter of habit. Bentham noted that lawyers favoured “long-windedness“and suggested that “the shorter the sentence the better”. His advice has been followed mainly in the breach.

In an analysis of the British Court act of 1971 by Marita Guftafsson and an other analysis of two parts of the British road Act of 1972 by Risto Hiltunen, we can elaborate this board containing a comparison between the two analysis;

Type of discourse sentence Number of words Mean length
British court Act of 1971 Shorter sentence 10 27,6 Words
Longest sentence 179
British road Act of 1972 Shorter sentence
7 79,25
Longest sentence
740





6. Many foreign expressions are found in the legal language, especially Latin.

the vocabulary and the syntactic rules of literary language. The Latin language was carried by Roman soldiers, administrators, In past centuries, Latin played the role of a common legal language, which was applied across the boundaries of local law. In a way, Latin can be called the common mother tongue of Western European culture, which has influenced the development of all major European languages. Its influence on the development of other languages began with the conquests by the Roman forces, which left their imprint first and foremost on the vocabulary and the syntactic rules of literary language. The Latin language was carried by Roman soldiers, administrators, settlers, and traders to the various parts of their growing empire. Sicily, Sardinia, Corsica, Dalmatia, and the southern and eastern coasts of Spain had been brought under Roman sway by the end of the third century BC, and the expansion continued until with Trajan’s conquest of Dacia the Roman Empire reached its greatest extent, including Britain in the far west and the Hellenistic kingdoms in the east, with the northern frontier on the Rhine and the Danube. The consequence was that a common civilisation was developed that varied little from country to country. Latin, the language of the new ruling power, was from this point on the language of government and administration, legislation and the judiciary, trade and army operations.
After the collapse of the Roman Empire in 476 AD, Rome lost its political independence, but the significance of Latin, on the contrary, did not lessen. During the Middle Ages and in the Renaissance and Reformation and beyond, Latin was used in particular as the language of the church, education, and scientific realms. Communication between states and nations was conducted in Latin, as was the correspondence of intellectuals and scholars.
The place of Latin in the history of the development of the law in Western civilisation is also notable. The importance of Latin as a legal language may be traced back to 450–451 BC, when the Twelve Tables were created, forming the basis of the subsequent development of Roman law. All major sources of our knowledge of Roman law are written in Latin – e.g., the collection of Roman Emperor Justinian known as the Corpus Iuris Civilis. This codification had a direct impact on the development of the legal systems of Europe, and it has even been considered to be the most influential law book ever written. In addition, Latin was the language of the most prominent works on jurisprudence and legal philosophy, including famous tractates of Cicero, St. Thomas Aquinas, Hugo Grotius, and many others.
In past centuries, Latin played the role of a common legal language, which was applied across the boundaries of local law. In a way, Latin can be called the common mother tongue of Western European culture, which has influenced the development of all major European languages. Its influence on the development of other languages began with the conquests by the Roman forces, which left their imprint first and foremost on settlers, and traders to the various parts of their growing empire. Sicily, Sardinia, Corsica, Dalmatia, and the southern and eastern coasts of Spain had been brought under Roman sway by the end of the third century BC, and the expansion continued until with Trajan’s conquest of Dacia the Roman Empire reached its greatest extent, including Britain in the far west and the Hellenistic kingdoms in the east, with the northern frontier on the Rhine and the Danube. The consequence was that a common civilisation was developed that varied little from country to country. Latin, the language of the new ruling power, was from this point on the language of government and administration, legislation and the judiciary, trade and army operations.
After the collapse of the Roman Empire in 476 AD, Rome lost its political independence, but the significance of Latin, on the contrary, did not lessen. During the Middle Ages and in the Renaissance and Reformation and beyond, Latin was used in particular as the language of the church, education, and scientific realms. Communication between states and nations was conducted in Latin, as was the correspondence of intellectuals and scholars.
The place of Latin in the history of the development of the law in Western civilisation is also notable. The importance of Latin as a legal language may be traced back to 450–451 BC, when the Twelve Tables were created, forming the basis of the subsequent development of Roman law. All major sources of our knowledge of Roman law are written in Latin – e.g., the collection of Roman Emperor Justinian known as the Corpus Iuris Civilis. This codification had a direct impact on the development of the legal systems of Europe, and it has even been considered to be the most influential law book ever written. In addition, Latin was the language of the most prominent works on jurisprudence and legal philosophy, including famous tractates of Cicero, St. Thomas Aquinas, Hugo Grotius, and many others.














CONCUSION
The legal discourse is characterized by many features. Long and complex sentences with unusual words and other odd features make legal language convoluted, cumbersome, and hard to comprehend, these stylistic features of legal language have little to command them.
Professor David Mellinkoff has concluded that the claimed precision of legal language is largely a “myth”. There is no doubt that lawyer ten to exaggerate the precision of legal language. What makes precision so difficult to obtain is not merely the indeterminacy of language. For the most part, legal language can be made precise enough for ordinary purposes.
Legal lexicon differs in many ways from ordinary speech and writing. Each of these differences most promotes the main goal of any language; clear and effective communication. Not surprisingly, archaic language is generally unnecessary and fails this test. Jargon and technical terminology are more problematic because they actually facilitate in group-communication while greatly reducing comprehension by the public.
At last, we can say that every language gas its own characteristics following the domain where it is used.






Bibliography:

-Birks. P & G. McLeod. 1987. Justinian’s Institutes. London: Gerald Duckworth & Co.

-Berman and Greiner, 1972, The Nature and' Function of the Law

-Burke Shartel, 1991,Our Legal System and How it Works

- Palmer. L. R. 1988. The Latin Language. London: Faber and Faber

- Tamm .D. 1997.Roman Law and European Legal History. Copenhagen: DJØF Publishing .