Elizabeth Mertz
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780195183108
- eISBN:
- 9780199870875
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195183108.003.0002
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This chapter provides a brief overview of scholarship that has examined the role of language in society and culture, in socialization practices, and in education. It concludes with a discussion of ...
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This chapter provides a brief overview of scholarship that has examined the role of language in society and culture, in socialization practices, and in education. It concludes with a discussion of the role of language in law, legal reasoning, and legal education. The resulting synthesis of insights from multiple disciplines provides the foundation for the model of language in social context used in this study. It is through language that social problems are translated into legal issues. At the broadest level, this study brings together two related inquiries. First, whether there is a distinctive approach to translation embodied in the canonical legal language taught to law students. If so, how people learn to use that distinctive language as they become legal professionals—in their first months of training to be the lawyers and judges whose voices and writings perform the act of legal translation. To address these questions, work in linguistics, anthropology, legal theory, social theory, educational research, and psychology is considered.Less
This chapter provides a brief overview of scholarship that has examined the role of language in society and culture, in socialization practices, and in education. It concludes with a discussion of the role of language in law, legal reasoning, and legal education. The resulting synthesis of insights from multiple disciplines provides the foundation for the model of language in social context used in this study. It is through language that social problems are translated into legal issues. At the broadest level, this study brings together two related inquiries. First, whether there is a distinctive approach to translation embodied in the canonical legal language taught to law students. If so, how people learn to use that distinctive language as they become legal professionals—in their first months of training to be the lawyers and judges whose voices and writings perform the act of legal translation. To address these questions, work in linguistics, anthropology, legal theory, social theory, educational research, and psychology is considered.
Elizabeth Mertz
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780195183108
- eISBN:
- 9780199870875
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195183108.003.0006
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This chapter considers what kind of person is created through the talk of the law school classroom and discusses the larger view of the world, of human selves and motivations, and of social context ...
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This chapter considers what kind of person is created through the talk of the law school classroom and discusses the larger view of the world, of human selves and motivations, and of social context that are entailed in this creation. The chapter concludes by discussing the broader social implications of the underlying legal epistemology outlined earlier. Based on contemporary social theory, this chapter draws connections between U.S. legal language and the wider social system in which it is embedded.Less
This chapter considers what kind of person is created through the talk of the law school classroom and discusses the larger view of the world, of human selves and motivations, and of social context that are entailed in this creation. The chapter concludes by discussing the broader social implications of the underlying legal epistemology outlined earlier. Based on contemporary social theory, this chapter draws connections between U.S. legal language and the wider social system in which it is embedded.
Elizabeth Mertz
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780195183108
- eISBN:
- 9780199870875
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195183108.001.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
Anyone who has attended law school knows that it invokes an important intellectual transformation, frequently referred to as “learning to think like a lawyer”. This process, which forces students to ...
More
Anyone who has attended law school knows that it invokes an important intellectual transformation, frequently referred to as “learning to think like a lawyer”. This process, which forces students to think and talk in radically new and toward different ways about conflicts, is directed by professors in the course of their lectures and examinations, and conducted via spoken and written language. This book delves into that legal language to reveal the complexities of how this process takes place. The book bases its linguistic study on tape recordings from first year Contracts courses in eight different law schools. The book discusses how these schools employ the Socratic method between teacher and student, forcing the student to shift away from moral and emotional terms in thinking about conflict, toward frameworks of legal authority instead. This move away from moral frameworks is key, the book says, arguing that it represents an underlying world view at the core not just of law education, but for better or worse, of the entire U.S. legal system—which, while providing a useful source of legitimacy and a means to process conflict, fails to deal systematically with aspects of fairness and social justice. The latter part of the study shows how differences in race and gender makeup among law students and professors can subtly alter this process.Less
Anyone who has attended law school knows that it invokes an important intellectual transformation, frequently referred to as “learning to think like a lawyer”. This process, which forces students to think and talk in radically new and toward different ways about conflicts, is directed by professors in the course of their lectures and examinations, and conducted via spoken and written language. This book delves into that legal language to reveal the complexities of how this process takes place. The book bases its linguistic study on tape recordings from first year Contracts courses in eight different law schools. The book discusses how these schools employ the Socratic method between teacher and student, forcing the student to shift away from moral and emotional terms in thinking about conflict, toward frameworks of legal authority instead. This move away from moral frameworks is key, the book says, arguing that it represents an underlying world view at the core not just of law education, but for better or worse, of the entire U.S. legal system—which, while providing a useful source of legitimacy and a means to process conflict, fails to deal systematically with aspects of fairness and social justice. The latter part of the study shows how differences in race and gender makeup among law students and professors can subtly alter this process.
Timothy A. O. Endicott
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198268406
- eISBN:
- 9780191714795
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268406.001.0001
- Subject:
- Law, Law of Obligations, Philosophy of Law
Vagueness leads to indeterminacies in the application of the law in many cases. This book responds to the challenges that those indeterminacies pose to a theory of law and adjudication. The book puts ...
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Vagueness leads to indeterminacies in the application of the law in many cases. This book responds to the challenges that those indeterminacies pose to a theory of law and adjudication. The book puts controversies in legal theory in a new light, using arguments in the philosophy of language to offer an explanation of the unclarities that arise in borderline cases for the application of vague expressions. However, the book also argues that vagueness is a feature of law, and not merely of legal language: the linguistic and non-linguistic resources of the law are commonly vague. These claims have consequences that have seemed unacceptable to many legal theorists. Because law is vague, judges cannot always decide cases by giving effect to the legal rights and obligations of the parties. Judges cannot always treat like cases alike. The ideal of the rule of law seems to be unattainable. The book offers a new articulation of the content of that ideal. It argues that the pursuit of justice and the rule of law do not depend on the idea that the requirements of the law are determinate in all cases. The resolution of unresolved disputes is an important and independent duty of judges — a duty that is itself an essential component of the ideal of the rule of law.Less
Vagueness leads to indeterminacies in the application of the law in many cases. This book responds to the challenges that those indeterminacies pose to a theory of law and adjudication. The book puts controversies in legal theory in a new light, using arguments in the philosophy of language to offer an explanation of the unclarities that arise in borderline cases for the application of vague expressions. However, the book also argues that vagueness is a feature of law, and not merely of legal language: the linguistic and non-linguistic resources of the law are commonly vague. These claims have consequences that have seemed unacceptable to many legal theorists. Because law is vague, judges cannot always decide cases by giving effect to the legal rights and obligations of the parties. Judges cannot always treat like cases alike. The ideal of the rule of law seems to be unattainable. The book offers a new articulation of the content of that ideal. It argues that the pursuit of justice and the rule of law do not depend on the idea that the requirements of the law are determinate in all cases. The resolution of unresolved disputes is an important and independent duty of judges — a duty that is itself an essential component of the ideal of the rule of law.
Vijay K. Bhatia, Christopher N. Candlin, and Jan Engberg
- Published in print:
- 2008
- Published Online:
- September 2011
- ISBN:
- 9789622098510
- eISBN:
- 9789882207141
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622098510.003.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This volume is an attempt to address some legal discourse questions by contributing to the basic knowledge of legal language typically used in international commercial arbitration, and to suggest ...
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This volume is an attempt to address some legal discourse questions by contributing to the basic knowledge of legal language typically used in international commercial arbitration, and to suggest implications of this for legal practice, legal translation, and legal practitioner training. This chapter has three major objectives: firstly, to identify and bring into focus some of the main concepts and constructs in the field of comparative legal discourse; secondly, to identify and characterize the main contexts—socio-political, institutional, and professional—in terms of which comparative legal discourse can be studied, and where such study is practically relevant; and finally, to identify and outline an integrated set of appropriate discourse-analytical and other methodological procedures that enable the grounded study of legal writing so as to provide substantive, relevant, and usable accounts of value to practitioners in various fields.Less
This volume is an attempt to address some legal discourse questions by contributing to the basic knowledge of legal language typically used in international commercial arbitration, and to suggest implications of this for legal practice, legal translation, and legal practitioner training. This chapter has three major objectives: firstly, to identify and bring into focus some of the main concepts and constructs in the field of comparative legal discourse; secondly, to identify and characterize the main contexts—socio-political, institutional, and professional—in terms of which comparative legal discourse can be studied, and where such study is practically relevant; and finally, to identify and outline an integrated set of appropriate discourse-analytical and other methodological procedures that enable the grounded study of legal writing so as to provide substantive, relevant, and usable accounts of value to practitioners in various fields.
Kate Waterhouse
- Published in print:
- 2014
- Published Online:
- January 2015
- ISBN:
- 9780719095276
- eISBN:
- 9781781707548
- Item type:
- book
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719095276.001.0001
- Subject:
- Sociology, Law, Crime and Deviance
For the uninitiated, the Irish District Court is a place of incomprehensible, organised chaos. This detailed account of the court’s criminal proceedings, based on an original study that involved ...
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For the uninitiated, the Irish District Court is a place of incomprehensible, organised chaos. This detailed account of the court’s criminal proceedings, based on an original study that involved observing hundreds of cases, aims to demystify the mayhem and provide the reader with descriptions of language, participant discourse and procedure in criminal cases. The book also captures an important change in the District Court: the advent of the immigrant or the Limited-English-proficient (LEP) defendant. It traces the rise of these defendants and explores the issues involved in ensuring access to justice across languages. It also provides an original description of LEP defendants and interpreters in District Court proceedings, ultimately considering how they have altered the District Court as an institution and how the characteristics of the District Court affect the ability of limited English proficient defendants to access justice at this level of the Irish courts system.Less
For the uninitiated, the Irish District Court is a place of incomprehensible, organised chaos. This detailed account of the court’s criminal proceedings, based on an original study that involved observing hundreds of cases, aims to demystify the mayhem and provide the reader with descriptions of language, participant discourse and procedure in criminal cases. The book also captures an important change in the District Court: the advent of the immigrant or the Limited-English-proficient (LEP) defendant. It traces the rise of these defendants and explores the issues involved in ensuring access to justice across languages. It also provides an original description of LEP defendants and interpreters in District Court proceedings, ultimately considering how they have altered the District Court as an institution and how the characteristics of the District Court affect the ability of limited English proficient defendants to access justice at this level of the Irish courts system.
Elizabeth Mertz
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780195183108
- eISBN:
- 9780199870875
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195183108.003.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This chapter takes the reader into the law school classroom, stepping into the shoes of law students who are beginning to learn legal language and are initiated into a new way of thinking and talking ...
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This chapter takes the reader into the law school classroom, stepping into the shoes of law students who are beginning to learn legal language and are initiated into a new way of thinking and talking about the conflicts with which they will be asked to deal as attorneys. Much has been written about the first year of law school. There have also been many attempts to define core aspects of U.S. legal reasoning. This book considers these two issues together, using a study of the initial law school experience to shed light on legal worldviews and understandings. One focus of this research is the content of U.S. legal epistemology (that is, distinctively legal ways of approaching knowledge), as revealed in the training of initiates into the world of law. The study uses close analysis of classroom language to examine the limits that legal epistemology may place on law's democratic aspirations. It also asks whether legal training itself may impact the democratization of the legal profession.Less
This chapter takes the reader into the law school classroom, stepping into the shoes of law students who are beginning to learn legal language and are initiated into a new way of thinking and talking about the conflicts with which they will be asked to deal as attorneys. Much has been written about the first year of law school. There have also been many attempts to define core aspects of U.S. legal reasoning. This book considers these two issues together, using a study of the initial law school experience to shed light on legal worldviews and understandings. One focus of this research is the content of U.S. legal epistemology (that is, distinctively legal ways of approaching knowledge), as revealed in the training of initiates into the world of law. The study uses close analysis of classroom language to examine the limits that legal epistemology may place on law's democratic aspirations. It also asks whether legal training itself may impact the democratization of the legal profession.
Dr Bénédicte Sage-Fuller, Ferdinand Prinz zur Lippe, and Seén Ó Conaill
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199673667
- eISBN:
- 9780191751769
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199673667.003.0306
- Subject:
- Law, Comparative Law, Philosophy of Law
This chapter discusses the philosophical and policy reasons why students engaged in learning the law of a country should do so directly in the language of that country (i.e., learning French law ...
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This chapter discusses the philosophical and policy reasons why students engaged in learning the law of a country should do so directly in the language of that country (i.e., learning French law through French, German law through German, Irish law through Irish and English). Students need to be taught that the legal tradition of a country cannot be understood fully without mastering its language. Students need to develop their ability to reason and analyse French, Irish, and German legal principles entirely through the medium of French, Irish, or German. This point is an important one for the future lawyers of Europe, from both the academic and the legal practice perspectives. Indeed, students and lawyers must be able to think rationally in order to develop and apply the laws of Europe. This cannot be achieved without understanding clearly the intrinsic relationship between law and language, or to put it more precisely, between the law and the language in which it is expressed.Less
This chapter discusses the philosophical and policy reasons why students engaged in learning the law of a country should do so directly in the language of that country (i.e., learning French law through French, German law through German, Irish law through Irish and English). Students need to be taught that the legal tradition of a country cannot be understood fully without mastering its language. Students need to develop their ability to reason and analyse French, Irish, and German legal principles entirely through the medium of French, Irish, or German. This point is an important one for the future lawyers of Europe, from both the academic and the legal practice perspectives. Indeed, students and lawyers must be able to think rationally in order to develop and apply the laws of Europe. This cannot be achieved without understanding clearly the intrinsic relationship between law and language, or to put it more precisely, between the law and the language in which it is expressed.
Marta Chroma
- Published in print:
- 2008
- Published Online:
- September 2011
- ISBN:
- 9789622098510
- eISBN:
- 9789882207141
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622098510.003.0015
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
One of the most difficult aspects of legal translation is the issue of terminology. This chapter outlines some of the key terminological issues relevant for the translation of arbitration laws and ...
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One of the most difficult aspects of legal translation is the issue of terminology. This chapter outlines some of the key terminological issues relevant for the translation of arbitration laws and procedures. It argues for a conceptual approach to terminology in legal translation which relies on the choice of seemingly equivalent terms in two or more different legal systems using two or more different languages as the vehicles of legal information, always based on the comparison of the scope (intension), applicability (in various contexts and genres), and the purpose and effect of legal concepts. The chapter recommends extensive conceptual analyses of key terms to avoid the potential risk of choosing translational equivalents which would not be adequate in the target legal system and, hence misleading or incomprehensible for the ultimate recipients.Less
One of the most difficult aspects of legal translation is the issue of terminology. This chapter outlines some of the key terminological issues relevant for the translation of arbitration laws and procedures. It argues for a conceptual approach to terminology in legal translation which relies on the choice of seemingly equivalent terms in two or more different legal systems using two or more different languages as the vehicles of legal information, always based on the comparison of the scope (intension), applicability (in various contexts and genres), and the purpose and effect of legal concepts. The chapter recommends extensive conceptual analyses of key terms to avoid the potential risk of choosing translational equivalents which would not be adequate in the target legal system and, hence misleading or incomprehensible for the ultimate recipients.
Elizabeth Mertz
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780195183108
- eISBN:
- 9780199870875
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195183108.003.0005
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This chapter deals with the divergent teaching styles found in law schools. It looks at the variety of ways that a similar message about legal language is conveyed in today's law school classroom, ...
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This chapter deals with the divergent teaching styles found in law schools. It looks at the variety of ways that a similar message about legal language is conveyed in today's law school classroom, ranging from a class dominated by lecturing to a modified Socratic method of teaching to a style characterized by shorter student-professor exchanges. This provides an opportunity to examine the nuances of discourse structure across different classes. Although surface features of classroom discourse differ among these classrooms, some interesting resonances are evident in other structural features of classroom language. These resonances provide subtle structural support for the underlying message about legal epistemology (and accompanying metalinguistic orientations) that is being conveyed to students.Less
This chapter deals with the divergent teaching styles found in law schools. It looks at the variety of ways that a similar message about legal language is conveyed in today's law school classroom, ranging from a class dominated by lecturing to a modified Socratic method of teaching to a style characterized by shorter student-professor exchanges. This provides an opportunity to examine the nuances of discourse structure across different classes. Although surface features of classroom discourse differ among these classrooms, some interesting resonances are evident in other structural features of classroom language. These resonances provide subtle structural support for the underlying message about legal epistemology (and accompanying metalinguistic orientations) that is being conveyed to students.
C.J.W. Baaij
- Published in print:
- 2018
- Published Online:
- March 2018
- ISBN:
- 9780190680787
- eISBN:
- 9780190680817
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190680787.003.0004
- Subject:
- Law, Philosophy of Law
The current EU Translation practices prove to be internally inconsistent and thus less than fully effective. The most important methods of EU Translation, using neologisms for EU legal terminology ...
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The current EU Translation practices prove to be internally inconsistent and thus less than fully effective. The most important methods of EU Translation, using neologisms for EU legal terminology and maintaining close textual homogeny, are not incompatible as such. Rather, the aims that these methods seek to satisfy turn out to be inconsistent. In terms of Friedrich Schleiermacher’s essay on translation, EU Translation is at once both “receiver-oriented” and “source-oriented.” In view of the contradictory philosophical concepts of language underpinning these translation orientations, EU Translation thus aims to both “foreignize” and “familiarize” the recipients of language versions. The principles of legal integration and language diversity require absolute concordance among the 24 language versions of EU legislation. Yet, different theoretical approaches to translation provide different answers as to what such concordance entails. Improving EU Translation thus lies in settling for either a receiver- or source-oriented approach.Less
The current EU Translation practices prove to be internally inconsistent and thus less than fully effective. The most important methods of EU Translation, using neologisms for EU legal terminology and maintaining close textual homogeny, are not incompatible as such. Rather, the aims that these methods seek to satisfy turn out to be inconsistent. In terms of Friedrich Schleiermacher’s essay on translation, EU Translation is at once both “receiver-oriented” and “source-oriented.” In view of the contradictory philosophical concepts of language underpinning these translation orientations, EU Translation thus aims to both “foreignize” and “familiarize” the recipients of language versions. The principles of legal integration and language diversity require absolute concordance among the 24 language versions of EU legislation. Yet, different theoretical approaches to translation provide different answers as to what such concordance entails. Improving EU Translation thus lies in settling for either a receiver- or source-oriented approach.
Gary Watt
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199673667
- eISBN:
- 9780191751769
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199673667.003.0345
- Subject:
- Law, Comparative Law, Philosophy of Law
This chapter explores the implications of, and suggests a response to, the discovery that modern legal language is subject to the ongoing dominion of the Proto-Indo-European lexicon and the ...
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This chapter explores the implications of, and suggests a response to, the discovery that modern legal language is subject to the ongoing dominion of the Proto-Indo-European lexicon and the realization that it is, therefore, subject to the ongoing influence of Proto-Indo-European thought. It also seeks to remedy a surprising and enduring ignorance amongst jurists of the significant historical connections between the discipline of law and the discipline of etymology, for as the origins of modern etymological scholarship can be traced to an English colonial judge, so its development owes a great deal to the German jurist and philologist Jacob Ludwig Carl Grimm (1785𠀓1863). Grimm postulated the fundamental rules which govern differences in the pronunciation of consonants between the Indo-European and Proto-Germanic languages.Less
This chapter explores the implications of, and suggests a response to, the discovery that modern legal language is subject to the ongoing dominion of the Proto-Indo-European lexicon and the realization that it is, therefore, subject to the ongoing influence of Proto-Indo-European thought. It also seeks to remedy a surprising and enduring ignorance amongst jurists of the significant historical connections between the discipline of law and the discipline of etymology, for as the origins of modern etymological scholarship can be traced to an English colonial judge, so its development owes a great deal to the German jurist and philologist Jacob Ludwig Carl Grimm (1785𠀓1863). Grimm postulated the fundamental rules which govern differences in the pronunciation of consonants between the Indo-European and Proto-Germanic languages.
TIMOTHY A. O. ENDICOTT
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198268406
- eISBN:
- 9780191714795
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268406.003.0002
- Subject:
- Law, Law of Obligations, Philosophy of Law
This chapter introduces the notion of indeterminacy: the law is indeterminate when there is no single right answer to a question of law, or to a question of the application of the law to the facts of ...
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This chapter introduces the notion of indeterminacy: the law is indeterminate when there is no single right answer to a question of law, or to a question of the application of the law to the facts of a case. It rejects the incoherent notion that the application of language is radically indeterminate, stressing the point that the application of vague language is indeterminate in some cases but not in all cases. It is possible to know that the linguistic formulation of a legal rule applies to the facts of some cases, but that mundane knowledge does not tell a judge what to do. Knowing whether the case fits the formulation of a rule does not even tell the judge what the law requires. The judge also needs to know whether the law requires that the rule be applied. Linguistic determinacy should not mislead judges into thinking that it will even be possible to make a just decision in every case.Less
This chapter introduces the notion of indeterminacy: the law is indeterminate when there is no single right answer to a question of law, or to a question of the application of the law to the facts of a case. It rejects the incoherent notion that the application of language is radically indeterminate, stressing the point that the application of vague language is indeterminate in some cases but not in all cases. It is possible to know that the linguistic formulation of a legal rule applies to the facts of some cases, but that mundane knowledge does not tell a judge what to do. Knowing whether the case fits the formulation of a rule does not even tell the judge what the law requires. The judge also needs to know whether the law requires that the rule be applied. Linguistic determinacy should not mislead judges into thinking that it will even be possible to make a just decision in every case.
TIMOTHY A. O. ENDICOTT
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198268406
- eISBN:
- 9780191714795
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268406.003.0008
- Subject:
- Law, Law of Obligations, Philosophy of Law
The indeterminacy claim faces a potential objection from Ronald Dworkin’s interpretivist theory of law. The interpretivist objection to the indeterminacy claim is that the law has resources that ...
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The indeterminacy claim faces a potential objection from Ronald Dworkin’s interpretivist theory of law. The interpretivist objection to the indeterminacy claim is that the law has resources that eliminate indeterminacies in the application of the words with which legal standards are formulated. This chapter defends the indeterminacy claim, first by addressing Dworkin’s views about the interpretive resources of the law, and then by presenting a simple account of the nature of interpretation that is opposed to Andrei Marmor’s theory of the role of interpretation in law. Whether interpretive considerations are part of the law or not, there is no reason to think that they tend to eliminate indeterminacy. The appeal of the notion that interpretation is a way of reducing or eliminating indeterminacies can be explained as a facet of the general legal technique of juridical bivalence: that notion is attractive in the same way that the standard view of adjudication is attractive.Less
The indeterminacy claim faces a potential objection from Ronald Dworkin’s interpretivist theory of law. The interpretivist objection to the indeterminacy claim is that the law has resources that eliminate indeterminacies in the application of the words with which legal standards are formulated. This chapter defends the indeterminacy claim, first by addressing Dworkin’s views about the interpretive resources of the law, and then by presenting a simple account of the nature of interpretation that is opposed to Andrei Marmor’s theory of the role of interpretation in law. Whether interpretive considerations are part of the law or not, there is no reason to think that they tend to eliminate indeterminacy. The appeal of the notion that interpretation is a way of reducing or eliminating indeterminacies can be explained as a facet of the general legal technique of juridical bivalence: that notion is attractive in the same way that the standard view of adjudication is attractive.
Brian Bix
- Published in print:
- 1995
- Published Online:
- March 2012
- ISBN:
- 9780198260509
- eISBN:
- 9780191682100
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198260509.003.0005
- Subject:
- Law, Philosophy of Law
Ronald Dworkin's earlier work advocated that there exists a unique right answer for a vast majority of cases. However the nature of this ‘right answer thesis’ was a direct response to Hart's argument ...
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Ronald Dworkin's earlier work advocated that there exists a unique right answer for a vast majority of cases. However the nature of this ‘right answer thesis’ was a direct response to Hart's argument on ‘open texture’ and judicial discretion. In addition, Dworkin did not include the limitations and complexities of language as an obstacle to his thesis. His more recent work provided a more helpful scrutiny on ambiguous, open-textured, or unclear applications, and argument of relevant legal language. This chapter investigates the effectiveness of the ‘right answer thesis’, inquiring into the strengths and weaknesses of the thesis argument, from the offered critique by A.D. Woozley. Dworkin's interpretative (holistic) approach did not fit the practice.Less
Ronald Dworkin's earlier work advocated that there exists a unique right answer for a vast majority of cases. However the nature of this ‘right answer thesis’ was a direct response to Hart's argument on ‘open texture’ and judicial discretion. In addition, Dworkin did not include the limitations and complexities of language as an obstacle to his thesis. His more recent work provided a more helpful scrutiny on ambiguous, open-textured, or unclear applications, and argument of relevant legal language. This chapter investigates the effectiveness of the ‘right answer thesis’, inquiring into the strengths and weaknesses of the thesis argument, from the offered critique by A.D. Woozley. Dworkin's interpretative (holistic) approach did not fit the practice.
David Lanius
- Published in print:
- 2019
- Published Online:
- July 2019
- ISBN:
- 9780190923693
- eISBN:
- 9780190923723
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190923693.003.0002
- Subject:
- Linguistics, Applied Linguistics and Pedagogy
In this chapter legal utterances are analysed as being typically normative, directed toward future events, addressed to heterogeneous audiences, and applied in a wide variety of circumstances.It ...
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In this chapter legal utterances are analysed as being typically normative, directed toward future events, addressed to heterogeneous audiences, and applied in a wide variety of circumstances.It argues that these features of legal language are decisive for the use of linguistic indeterminacy in law, and that they are exemplified in three paradigmatic kinds of legal utterances: the enactment of laws, rendering of verdicts, and formation of contracts. It also examines the plausibility of the communication theory of law as basis for an account of legal indeterminacy. More importantly, it identifies indeterminacy on the level of legal content. This specially legal form of indeterminacy is not only due to gaps and contradictions, but also theoretical and meta-interpretive disagreement. In particular, theoretical disagreement in legal practice renders linguistic indeterminacy (including semantic vagueness) less relevant than suggested by the debate on vagueness in law.Less
In this chapter legal utterances are analysed as being typically normative, directed toward future events, addressed to heterogeneous audiences, and applied in a wide variety of circumstances.It argues that these features of legal language are decisive for the use of linguistic indeterminacy in law, and that they are exemplified in three paradigmatic kinds of legal utterances: the enactment of laws, rendering of verdicts, and formation of contracts. It also examines the plausibility of the communication theory of law as basis for an account of legal indeterminacy. More importantly, it identifies indeterminacy on the level of legal content. This specially legal form of indeterminacy is not only due to gaps and contradictions, but also theoretical and meta-interpretive disagreement. In particular, theoretical disagreement in legal practice renders linguistic indeterminacy (including semantic vagueness) less relevant than suggested by the debate on vagueness in law.
Vijay K. Bhatia, Christopher N. Candlin, and Jan Engberg (eds)
- Published in print:
- 2008
- Published Online:
- September 2011
- ISBN:
- 9789622098510
- eISBN:
- 9789882207141
- Item type:
- book
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622098510.001.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
What exactly is legal about legal language? What happens to legal language when it is used across linguistic, national, socio-political, cultural, and legal systems? In what way is generic integrity ...
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What exactly is legal about legal language? What happens to legal language when it is used across linguistic, national, socio-political, cultural, and legal systems? In what way is generic integrity of legal documents maintained in multilingual and multi-cultural contexts? What happens when the same rule of law is applied across legal systems? By bringing together scholars and practitioners from more than ten countries, representing various jurisdictions, languages, and socio-political backgrounds, this book addresses key issues arising from the differences in legal or sociocultural systems. The discussions are based not only on the analysis of the legal texts alone, but also on the factors shaping such constructions and interpretations.Less
What exactly is legal about legal language? What happens to legal language when it is used across linguistic, national, socio-political, cultural, and legal systems? In what way is generic integrity of legal documents maintained in multilingual and multi-cultural contexts? What happens when the same rule of law is applied across legal systems? By bringing together scholars and practitioners from more than ten countries, representing various jurisdictions, languages, and socio-political backgrounds, this book addresses key issues arising from the differences in legal or sociocultural systems. The discussions are based not only on the analysis of the legal texts alone, but also on the factors shaping such constructions and interpretations.
Joanna Kopaczyk
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199945153
- eISBN:
- 9780199345939
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199945153.001.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics, English Language
The book offers an innovative, corpus-driven approach to historical legal discourse. It is the first monograph to examine textual standardization patterns in legal and administrative texts on the ...
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The book offers an innovative, corpus-driven approach to historical legal discourse. It is the first monograph to examine textual standardization patterns in legal and administrative texts on the basis of lexical bundles, drawn from a comprehensive corpus of medieval and early modern legal texts. The focus is on Scotland, where Scots law, with its own nomenclature and its own repertoire of discourse features, was being shaped and marked by the concomitant standardizing of the vernacular language, Scots, a sister language to the English of the day. The study offers a unique combination of two methodological frameworks: a rigorous corpus-driven data analysis, and a pragmaphilological, context-sensitive qualitative interpretation of the findings. Providing the reader with a rich socio-historical background of legal discourse in medieval and early modern Scottish burghs, this monograph traces the links between orality, literacy, and law, which are reflected in discourse features and linguistic standardization of legal and administrative texts. In this context, the book also revisits important ingredients of legal language, such as binomials. The study is grounded in the functional approach to language and pays attention to referential, interpersonal and textual functions of lexical bundles in the texts. It also establishes a connection between the structure and function of the recurrent patterns and paves the way for the employment of new methodologies in historical discourse analysis.Less
The book offers an innovative, corpus-driven approach to historical legal discourse. It is the first monograph to examine textual standardization patterns in legal and administrative texts on the basis of lexical bundles, drawn from a comprehensive corpus of medieval and early modern legal texts. The focus is on Scotland, where Scots law, with its own nomenclature and its own repertoire of discourse features, was being shaped and marked by the concomitant standardizing of the vernacular language, Scots, a sister language to the English of the day. The study offers a unique combination of two methodological frameworks: a rigorous corpus-driven data analysis, and a pragmaphilological, context-sensitive qualitative interpretation of the findings. Providing the reader with a rich socio-historical background of legal discourse in medieval and early modern Scottish burghs, this monograph traces the links between orality, literacy, and law, which are reflected in discourse features and linguistic standardization of legal and administrative texts. In this context, the book also revisits important ingredients of legal language, such as binomials. The study is grounded in the functional approach to language and pays attention to referential, interpersonal and textual functions of lexical bundles in the texts. It also establishes a connection between the structure and function of the recurrent patterns and paves the way for the employment of new methodologies in historical discourse analysis.
Catrin Fflur Huws
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199673667
- eISBN:
- 9780191751769
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199673667.003.0218
- Subject:
- Law, Comparative Law, Philosophy of Law
The nature of the devolution settlement to Wales means that Wales is now governed by a dual legal system — there has been a partial devolution of primary legislative powers to the National Assembly ...
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The nature of the devolution settlement to Wales means that Wales is now governed by a dual legal system — there has been a partial devolution of primary legislative powers to the National Assembly for Wales but extensive legislative competence remains with Westminster. The National Assembly for Wales has an obligation to enact legislation bilingually, with both texts having equal standing. There is therefore a linguistic as well as a legal duality. This chapter explains the issues and challenges this situation creates. It illustrates and evaluates the differences existing between Welsh Assembly Measures and Acts, and Acts of the Westminster Parliament. It demonstrates that where two legislatures intersect with each other, and the additional dimension of a monolingual/bilingual drafting culture is introduced, the study of law and language is required to address cultural and structural questions that are not problematized in the same way as is encountered in the context of a single legislature drafting legislation through the medium of one language. To solve the equation of (Law + Language) therefore necessitates an appreciation of the drafting process and the process of scrutiny and interpretation. It necessitates an understanding of the evolving legal cultures that produce the legislation, and it involves a realization that the meaning attributed to words, and the way in which legislative texts are structured, may need to be reassessed and re-evaluated.Less
The nature of the devolution settlement to Wales means that Wales is now governed by a dual legal system — there has been a partial devolution of primary legislative powers to the National Assembly for Wales but extensive legislative competence remains with Westminster. The National Assembly for Wales has an obligation to enact legislation bilingually, with both texts having equal standing. There is therefore a linguistic as well as a legal duality. This chapter explains the issues and challenges this situation creates. It illustrates and evaluates the differences existing between Welsh Assembly Measures and Acts, and Acts of the Westminster Parliament. It demonstrates that where two legislatures intersect with each other, and the additional dimension of a monolingual/bilingual drafting culture is introduced, the study of law and language is required to address cultural and structural questions that are not problematized in the same way as is encountered in the context of a single legislature drafting legislation through the medium of one language. To solve the equation of (Law + Language) therefore necessitates an appreciation of the drafting process and the process of scrutiny and interpretation. It necessitates an understanding of the evolving legal cultures that produce the legislation, and it involves a realization that the meaning attributed to words, and the way in which legislative texts are structured, may need to be reassessed and re-evaluated.
Rabeea Assy
- Published in print:
- 2015
- Published Online:
- August 2015
- ISBN:
- 9780199687442
- eISBN:
- 9780191767104
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199687442.003.0005
- Subject:
- Law, Human Rights and Immigration
Complaints about complexity are as old as the law itself, and technical language is often blamed for baffling and excluding the layperson. So can self-representation be made more useful by providing ...
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Complaints about complexity are as old as the law itself, and technical language is often blamed for baffling and excluding the layperson. So can self-representation be made more useful by providing explanatory material and by rephrasing the law more simply? Many believe that disposing of jargon and using plain English can mitigate many of the difficulties faced by the uninitiated. However, effective exercise of the law in court involves more than an understanding of the language in which the rules are couched. Coming to grips with the law’s intricacies requires specialized skills, including the ability to recognize the relevant facts and classify them into pertinent legal categories, to identify the relevant legal principles and doctrines, and to engage in a particular type of interpretation and reasoning. The precise allocation of legal rights and obligations requires a detailed body of law, which only experts can handle effectively.Less
Complaints about complexity are as old as the law itself, and technical language is often blamed for baffling and excluding the layperson. So can self-representation be made more useful by providing explanatory material and by rephrasing the law more simply? Many believe that disposing of jargon and using plain English can mitigate many of the difficulties faced by the uninitiated. However, effective exercise of the law in court involves more than an understanding of the language in which the rules are couched. Coming to grips with the law’s intricacies requires specialized skills, including the ability to recognize the relevant facts and classify them into pertinent legal categories, to identify the relevant legal principles and doctrines, and to engage in a particular type of interpretation and reasoning. The precise allocation of legal rights and obligations requires a detailed body of law, which only experts can handle effectively.
